Considering ‘Crime Of Violence’ Vagueness At The Supreme Court

In June 2015, the U.S. Supreme Court held that a criminal statute is unconstitutionally vague. At oral argument on January 17, 2017, the Supreme Court considered whether a different law, bearing a strong resemblance to that vague statute, is also unconstitutionally vague.

Lynch v. Dimaya involves a lawful permanent resident with two California burglary convictions. The federal government charged James Garcia Dimaya as an “aggravated felon” under an immigration statute, 8 U.S.C. § 1101(a)(43)(F), for having committed a “crime of violence.” That section of the immigration law references another federal statute, 18 U.S.C. § 16, which defines “crime of violence.” At issue in Lynch v. Dimaya is § 16(b), which states:

any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The immigration judge in Dimaya’s case agreed with the government, and ordered his removal as an aggravated felon for having been convicted of a “crime of violence” under 16(b). Noncitizens deemed to be aggravated felons are subject to virtually automatic removal from the United States. The Board of Immigration Appeals agreed with the immigration judge, and dismissed Dimaya’s appeal.

The Ninth Circuit, however, agreed with Dimaya’s argument that 16(b) is unconstitutionally vague, based in large part on the Supreme Court’s June 2015 decision in Johnson v. United States, holding that the residual clause of the Armed Career Criminal Act (ACCA) is vague as a violation of the Constitution’s right to due process. The ACCA residual clause reads:

otherwise involves conduct that presents a serious potential risk of physical injury to another.

Representing the government before the Supreme Court, Edwin S. Kneedler argued that the court should apply a more relaxed standard of vagueness in this case, because it is an immigration proceeding — a civil matter — rather than a criminal proceeding. Kneedler asserted that the relaxed standard is appropriate because “the U.S. Constitution does not require prior notice that conduct will give rise to removal,” and because immigration laws are administered through broad delegations of authority to administrative agencies, in contrast to criminal laws, whose meanings are interpreted by Article III judges.

Kneedler also distinguished 16(b) from the ACCA residual clause, which had created uncertainty because harms could occur even after the offense was committed, while 16(b) asks “whether the offense by its nature presents a substantial risk that physical force will be used against the person or property of another,” and “confines the analysis in both a temporal and functional sense to the elements of the offense. You don’t look at what conduct might have happened afterward.”

In contrast to the steady stream of cases presented to the courts of appeals and the Supreme Court regarding the ACCA residual clause, Kneedler maintained that the courts did not see many cases attacking 16(b). In effect, as Justice Elena Kagan observed, “it seems that everybody is getting along just fine.”

Kneedler also returned several times to the Supreme Court’s unanimous 2004 decision in Leocal v. Ashcroft, which analyzed 18 U.S.C. § 16 and concluded that a noncitizen’s conviction for a DUI incident involving injury to others was categorically not a crime of violence, and thus not an aggravated felony. In the decision, the court referred to burglary as “a classic example of a crime of violence.”

Justice Ruth Bader Ginsburg pointed out that in arguments to the court in Johnson in 2015, the government argued that if the ACCA residual clause was unconstitutionally vague, then 16(b) would be vulnerable to the same claim of vagueness.

Justices Kagan and Sonia Sotomayor expressed deep skepticism that the statute in this case is meaningfully different than the statute the court found unconstitutionally vague in Johnson. Justice Sotomayor stated that the question of what constitutes ordinary burglary “was at the center of Johnson. Why isn’t it at the center here?”

When Kneedler asserted that the phrase “by its nature” places meaningful and clarifying limitations on 16(b), Justice Kagan questioned whether the “by its nature” language made the statute any less vague than the ACCA residual clause, and asked, “How does one go about deciding what kind of conduct the ordinary case of a crime involves? A statistical analysis of the State reporter? A survey? Expert evidence? Google? Gut instinct? So that’s a multiple-choice test. What do we do?”

Justice Anthony Kennedy noted the court’s decision in Jordan v. de George, a 1951 immigration case in which the court applied the same “void for vagueness” standard that it applied in criminal cases. Kneedler countered that the parties in de George did not brief the issue, so that aspect of the decision should not be given great weight, and added that the ex post facto clause of the Constitution does not apply to immigration, so “a person can be removed for conduct that was not a basis for removal before you engaged in that conduct, criminal or not.”

Justice Sotomayor replied that “that observation was at a time before the Draconian effects of removal and deportation came into effect,” and added that “we have often said that vagueness depends on the gravity of what is at stake. Today what’s at stake is a lot more than what was at stake decades ago.”

E. Joshua Rosenkranz, on behalf of Dimaya, argued that the two factors that doomed the ACCA residual clause as unconstitutionally vague — hypothesizing the ordinary case of a set of elements, and then estimating the degree of inherent risk — are also present in 16(b).

In response to Kneedler’s argument that the courts have not been saddled with interpretive conundrums involving 16(b), Rosenkranz replied that every single case that the Supreme Court decided regarding the ACCA residual clause had been presented to the court along with simultaneous petitions for certiorari in the 16(b) context, and the court would grant, vacate and remand (GVR) the 16(b) cases, and then the lower courts and the Supreme Court would cross-reference the ACCA residual clause cases into 16(b), treating them equivalently.

Rosenkranz also stated that many of the sorts of cases that the Supreme Court had decided regarding the ACCA residual clause are appearing again in the lower courts, this time regarding 16(b). Rosenkranz also replied that “it is simply not true to say that ‘everyone is getting along just fine in the lower courts.’” Rosenkranz indicated that he and amicus National Immigration Project have identified 10 circuit splits.

Justice Ginsburg countered that 16(b) may be viewed as more precise than the ACCA residual clause, because it is limited to the commission of the offense, and that the offender must be the person who uses the force, and it covers the use of force against the victim’s property.

Rosenkranz replied that courts have uniformly held that the phrase “in the course of” does not entail a temporal limitation. Moreover, courts will still need to be imagining the ordinary case. Finally, the textual differences between the ACCA residual clause and 16(b) are not meaningful —  the clauses say “the same thing in different words.”

Justice Stephen Breyer expressed concern that invalidating 16(b) as unconstitutionally vague could invite future litigation regarding assertions of vagueness in other civil cases, involving the clarity of terms such as “moral turpitude, unfair competition, just and reasonable rates, public convenience and necessity” and “a hundred others.” Justice Samuel Alito also appeared uncomfortable with the idea of invalidating 16(b), positing that a host of statutes and terms could be attacked as vague.

Justice Alito asked a series of questions focused on whether or not a statute with civil and criminal applications must be subjected to the same test for unconstitutional vagueness in both contexts. In other words, could a statute be unconstitutionally vague in a criminal application while being constitutional in a civil application, such as in an immigration case?

Rosenkranz replied that the court’s decision in Jordan v. de George settled the question —  that the interpretation of a statute must be the same in the immigration context as it is in the criminal context.

Justice Alito took issue with Rosenkranz’s interpretation of Jordan, and indicated instead that an alternative reading is that it did not prohibit a relaxed vagueness standard for a statute applied in the immigration context. Rosenkranz replied that in a number of cases, the Supreme Court held statutes to the same vagueness standard, whether in civil or criminal applications.

Rosenkranz then turned to the absurd effect of a disparate standard for criminal and civil applications of the statute. Supposing that the court concluded that 16(b) passes constitutional muster in immigration cases but is unconstitutionally vague in criminal applications, then Dimaya could be deported as an aggravated felon in an immigration case, then return to the United States the following day and be found to be not subject to criminal sanctions for re-entry as an aggravated felon.

Rosenkranz concluded by highlighting the practical consequences of the case. Holding 16(b) to be constitutional will lead to a series of cases parallel to the cases that the Supreme Court had to address regarding the ACCA residual clause. Rosenkranz stated that the Supreme Court should avoid a repeat of those cases, and end the conflict with this case, by holding that 16(b), like the ACCA residual clause, is unconstitutionally vague.

The Supreme Court will need to decide whether the “void for vagueness” standard in the immigration context is the same as the standard used in criminal cases. Adherence to Jordan would lead the court to apply the vagueness standard in this case in the same manner as in criminal cases. Justice Kennedy appeared to place considerable weight on the Jordan precedent.

The Court could decide, instead, to depart from Jordan on the ground that the vagueness issue in that case had not been briefed by the parties, or on the interpretation suggested by Justice Alito. Such a departure would result in the court applying a more relaxed vagueness standard in this case because it is a civil case. The court would face the task of delineating how to apply the vagueness test in a less stringent way. The justices are also likely concerned that a strict application of the vagueness test in this case has the potential to open the courts to a flood of civil litigation, as Justices Breyer and Alito had suggested.

Depending on the outcome of exactly how to apply the vagueness standard in this case, the court will also need to decide whether 16(b) suffers from the same vagueness as the ACCA residual clause, or whether the textual differences between the two clauses result in a meaningful distinction. It appears likely that Justices Kagan and Sotomayor are prepared to conclude that 16(b) does not pass the test. It is less clear whether Chief Justice John Roberts and Justice Ginsburg would reach the same result, given their comments suggesting that 16(b) is more precise than the ACCA residual clause.

The Supreme Court is expected to rule on the case by June 2017.

Esquivel-Quintana: Government’s Brief on the Merits

On January 18, 2017, the Solicitor General’s Office submitted the government’s brief in Esquivel-Quintana v. Lynch.

For much more information about this case, please see our dedicated page.

The Supreme Court will hear oral arguments in our case on February 27, 2017.

The government expresses a fundamental disagreement with us regarding the application of the categorical approach.

The Supreme Court, in cases that apply Taylor v. United States to immigration cases, requires that if a noncitizen is convicted of a crime under a state law, then the reviewing courts in the subsequent removal proceedings – Immigration Courts, the Board of Immigration Appeals (BIA), and U.S. courts of appeals – must work with a definition of the crime of conviction that is derived from the contemporary, “generic sense in which the term is now used in the criminal codes of most States,” federal law, and the Model Penal Code.

As we have described in prior posts, we are arguing that, among other reasons, the fact that my client’s conviction is for conduct that is perfectly legal under federal law and the laws of 43 states and the District of Columbia, means that, under the requirements of Taylor, my client’s conviction is not a categorical match with a contemporary generic definition of “sexual abuse of a minor.”

The government argues that the categorical approach involves two steps, and that the first step is “interpreting the federal provision at issue.” The government claims that the statutory phrase “sexual abuse of a minor” does not have an established meaning in state law, and so it is not appropriate to review the relevant laws of the 50 states.  According to the government, the first step is to interpret the meaning of “sexual abuse of a minor” without looking at the laws of the 50 states.  Because the government has entrusted the Board of Immigration Appeals (BIA) to interpret the nation’s immigration laws, it is up to the BIA to give us a definition of “sexual abuse of a minor.”

(Notably, we have argued that BIA did not ever actually provide a definition of “sexual abuse of a minor.”  The BIA, to date, has taken a “we know it when we see it” approach to what “sexual abuse of a minor” means, on a case-by-case basis.)

The government states that by simply considering the “plain meaning” of the words “sexual abuse of a minor,” one arrives at the conclusion that the phrase means any sort of sexual conduct that involves a person who is under age 18.

Next, the government argues that, to the extent that the term “sexual abuse of a minor” might be ambiguous, or subject to multiple interpretations, that we owe deference to the Board’s interpretation, under the famous 1984 case of Chevron U.S.A. Inc. v. Natural Resources Defense Council.  The government disagrees with our arguments that the BIA is not due any deference in this case – namely, (1) that after applying the categorical approach, there is no ambiguity; (2) the criminal rule of lenity trumps Chevron deference; and (3) the Board’s decision was unreasonable.

The government then states that, given that the interpretation of “sexual abuse of a minor” is so broad that it encompasses all sexual activity involving a person under age 18, we move to the second step of the categorical approach, comparing my client’s California conviction to the “definition” of “sexual abuse of a minor.”  Because, according to the government, the conviction is a match with the “definition,” my client is an aggravated felon for having been convicted of an offense that is “sexual abuse of a minor.”

We have very deep disagreements with the government’s arguments.  In February, we will be submitting our reply to the govenrment’s brief.

The Supreme Court will hear oral arguments in our case on February 27, 2017.

Then, the Court will likely issue a ruling by June 2017.

Preparing for Immigration Enforcement

Susan Reed, the Managing Attorney at the Michigan Immigrant Rights Center (MIRC), has prepared a 4-minute video that provides some tips on how you can prepare yourself and your family for the possibility of a visit from Immigration and Customs Enforcement (ICE).  I recommend that you take four minutes to watch this video, and consider the tips that MIRC suggests.

Thanks to Susan Reed and MIRC for your efforts!

Esquivel-Quintana: It’s Great to Have Friends!

Last week, a number of organizations joined forces to file three separate amicus briefs in support of our case – Esquivel-Quintana v. Lynch – before the Supreme Court.  Amicus briefs, or “friend of the court” briefs, are legal arguments submitted to the court that focus on certain aspects of the case that are particularly important to the persons or organizations submitting the briefs.

After reading these three amicus briefs, my client and I are very grateful to have such great “friends of the court.”

For more information about the case, please visit our dedicated page.

The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief, detailing the reasons why the Supreme Court should consider ruling in our favor on the basis of the Criminal Rule of Lenity.  

(I’d like to thank NACDL for presenting an excellent amicus brief in support of our case.  But I’d also like to thank them for being the only organization to file an earlier amicus brief in support of our case, and at an even more crucial time – when we were asking the Supreme Court to agree to hear our case.)

When we presented Juan’s case before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Jeffrey Sutton was particularly interested in the Criminal Rule of Lenity.  It is worth noting that Judge Sutton had clerked for Supreme Court Justice Antonin Scalia, a strong supporter of the Criminal Rule of Lenity.  We lost at the Sixth Circuit by a 2-1 vote. Judge Sutton, in dissent, wrote a powerful argument that we should have won the case based on the Criminal Rule of Lenity.  The Supreme Court has a number of different ways in which it could decide our case, and the Criminal Rule of Lenity is one important way.

Another option is for the Court to conclude that, when Congress amended the immigration law to include the phrase “sexual abuse of a minor” in the list of aggravated felonies, Congress intended that phrase to be defined by a federal law titled “sexual abuse of a minor or ward.”  That is the main argument in another powerful amicus brief, submitted by a coalition of three organizations:  The Immigrant Defense Project (IDP), the Immigrant Legal Resource Center (ILRC), and the National Immigration Project of the National Lawyers Guild (NIPNLG).  (An extra shout-out to NIPNLG, whose brilliant attorneys also provided a wonderful amicus brief in our case at the Sixth Circuit.)  This amicus brief details the process in which the immigration law and the criminal law were amended by Congress, and makes an elegant argument that, based partly on the timing of the amendments of the immigration and the criminal laws, Congress intended that the phrase “sexual abuse of a minor” in the immigration law to be defined by the statute at 18 U.S.C. Section 2243.

Finally, the National Immigrant Justice Center (NIJC) and the American Immigration Lawyers Association (AILA) argue in their amicus brief that another canon of statutory construction – the “rule of immigration lenity” – should be employed to construe immigration law in favor of noncitizens where, as here, the consequence of an “aggravated felony,” banishment from the United States for life, is overly harsh and a grossly unfair punishment for a conviction for conduct that is perfectly legal under federal law and in 43 states and the District of Columbia.  (And another “thank you” to NIJC for providing an excellent amicus brief earlier at the Sixth Circuit.)

The amicus brief filed by NIJC and AILA also argue that immigration judges should be allowed the discretion to consider noncitizen’s applications for relief from removal, such as asylum, cancellation of removal, and other forms of relief in Immigration Court.  These forms of relief are unavailable to persons whose convictions are labeled as “aggravated felonies.”  The amicus brief ends with some compelling examples of other noncitizens whose low-level criminal convictions place them in jeopardy of being banished forever as “aggravated felons.”

We are deeply grateful to the organizations who dedicated their precious resources of time, experience, great effort, and superior intellect to prepare and present amicus briefs in support of our case.  We are very fortunate to have such great “friends of the court.”  Thank you.

We look forward to the oral argument at the Supreme Court on February 27, 2017.

For more information about the case, please visit our dedicated page.  Thank you.

Esquivel-Quintana v. Lynch: Our Opening Brief on the Merits

Today, we submitted our opening brief on the merits to the Supreme Court in Esquivel-Quintana v. Lynch.

You can read more about this case at this dedicated page.

Our main arguments are as follows:

The Board of Immigration Appeals (BIA) concluded that our client’s California conviction, for consensual sex with his girlfriend when she was under age 18 and he was more than 3 years older, constitutes “sexual abuse of a minor” under federal immigration law, which is an “aggravated felony” leading to immediate deportation.  The U.S. Court of Appeals for the Sixth Circuit upheld the BIA’s decision.  We argue that our client’s conviction is not “sexual abuse of a minor” under federal immigration law for the following reasons.

First, we argue that the categorical approach applies to our case.  And the categorical approach requires that we have a generic definition of the crime at issue.  And in order to determine what the generic definition is, we must look to the laws of the 50 states and federal law.  Because the federal government, 43 states, and the District of Columbia do not criminalize consensual sex between a person under age 18 and another person more than 3 years older (they set the age of sexual consent at either 16 or 17), we assert that, under the Supreme Court’s decision in Taylor v. United States, our client’s conviction is not “sexual abuse of a minor.”

Second, we assert that the BIA is not entitled to any deference under Chevron USA v. NRDC, an important Supreme Court case that holds that reviewing courts must defer to federal agencies, such as the BIA, in certain circumstances in which a statute is “ambiguous.”  First, we argue that the circumstances of our case do not lead to any deference to the BIA’s decision.  The statute is not ambiguous, in our opinion, because after engaging in the categorical approach, and determining that the overwhelming number of states and federal law do not criminalize the conduct for which our client was convicted, it is clear that the California statute of conviction in our case is not “sexual abuse of a minor.”  Second, even if the Supreme Court were to conclude that there is ambiguity, the criminal rule of lenity should lead to a conclusion that our client’s conviction is not “sexual abuse of a minor.”  The phrase “sexual abuse of a minor” in the federal immigration statute has both immigration consequences and criminal consequences.  This “hybrid statute” must mean the same thing in both immigration and criminal cases.  And in a criminal case, the criminal rule of lenity requires an ambiguous statute to be read in the way most lenient to the defendant.  Third, we assert that the BIA is not entitled to any deference because its decision was unreasonable.

We expect that the Supreme Court will set oral argument for our case on a date in late February 2017.

Reflections after the election

I want to give you some thoughts about the future, after the results of the presidential election.

I do not know whether we will get any significant changes in immigration laws during the next 4 years.  It is possible, but it is also possible that there might not be changes.  It will depend on the priorities of the Trump Administration and on the actions of Congress.

For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.

For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse.  At this time, we just don’t know.  If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur.  Things in Washington often move more slowly than we might think at first.

It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight.  There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all.  At this time, we just don’t know what changes in procedures might occur.

Probably most of the thousands of current employees in the federal government will remain working at their jobs.  Most will probably continue to handle cases the same way that they have been handling them up to now.  It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.

Some programs, such as the I-601A Provisional Waiver Program, remain in place.  A program such as I-601A could only be changed through an official process, which could take 6 months or longer.

Other programs, such as DACA, could be eliminated more quickly.  The future of DACA as of January 20, 2016 is uncertain.

I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States.  I always advise that you communicate with me before you travel.  Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States.  We don’t know how CBP might change the way they do their job.  At this time, the best we can say is that they might become more strict.

For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain.  There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court.  At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed.  If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.

Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.

New administrations can change how things are done, but there are laws preventing that from happening too quickly.

For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.

You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.

If after reading this you still have questions, please send them and I will respond as soon as I can.

Humanitarian Parole

Some families are not able to reunite completely in the United States because of the restrictions of U.S. immigration laws.  For example, a permanent resident of the United States might have a widowed mother who is all alone in her home country, and perhaps with significant difficulties in her country.  This woman’s permanent resident son or daughter is not able to file a petition for permanent residence for her, until the permanent resident is able to become a U.S. citizen, often involving a wait of 3-5 years.

Other families may have a U.S. citizen in the United States who could file a petition for mom and dad to become permanent residents, but might have a sister with medical disabilities or special needs who live with mom and dad and who is either too young or have other disabilities that would prevent her from caring for herself, especially if she lives in a country with strife or political turmoil.

For families facing this type of situation, Humanitarian Parole might be a good option to try.  Humanitarian parole is offered by USCIS to persons who have compelling reasons to be reunited with family members in the United States, but who are unable to obtain a visa.

Many persons who obtain Humanitarian Parole will become eligible to obtain a more stable immigration status in the future.  For example, some persons might be able to obtain permanent resident status after being in the United States for a number of years.  Each case is different and depends upon the particular facts of the individual persons involved.

For many persons who are granted Humanitarian Parole, the initial parole period is one year.  These persons then apply to be re-paroled while they are in the United States.  USCIS approves many of the re-parole requests, which allow persons to remain in the United States while they wait for a more stable solution to their immigration status, such as permanent resident status.

USCIS indicates that they grant about 25 percent of the applications they receive for Humanitarian Parole, and they deny the rest.  For this reason, it is important to prepare the application with care.  If you believe that you or a family member might qualify for Humanitarian Parole, then you should work with an experienced immigration attorney to have the best chance of success.

I have successfully obtained Humanitarian Parole for my clients, and I would be happy to work with you to explore the possibilities for your family.

Lynch v. Dimaya: Too vague?

The Supreme Court recently decided to hear an immigration case this term called Lynch v. Dimaya.  The case involves whether a federal statute is so vague that it is unconstitutional.

Last year, the Supreme Court held that a different federal statute was “void for vagueness” in a criminal case, Johnson v. United States.  The language in the statute that the Supreme Court rendered void for vagueness was:  “… or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson, the Supreme Court concluded that the language allows for “uncertainty about how to estimate the risk posed by a crime.”  The Court also stated that the language leaves “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”

In the case before the Supreme Court at this time, Mr. Dimaya was convicted of a crime in a California criminal court.  After the criminal conviction, Mr. Dimaya was deemed to have committed an “aggravated felony” because his crime was a so-called “crime of violence” under a federal statute that states that a “crime of violence” includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Let’s take another look at the language in these statutes:  In Johnson, the Supreme Court stated that this language is unconstitutionally vague:

 “ … otherwise involves conduct that presents a serious potential risk of physical injury to another.”

 In Dimaya, the language at issue is:

 “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

 The language of these two statutes appears to be remarkably similar.  In Dimaya, the Ninth Circuit Court of Appeals applied the Supreme Court’s decision in Johnson and concluded that, if the language in the statute from Johnson is unconstitutionally vague, then the language in the statute from Dimaya should also be considered to be unconstitutionally vague.

Indeed, it is somewhat surprising that the Supreme Court decided to hear Dimaya.  If the Supreme Court had simply declined to hear the case, then the Ninth Circuit’s decision would remain.  It appears that the Ninth Circuit was trying to follow the Supreme Court’s own decision in Johnson.

The U.S. government in Dimaya appears to be arguing that courts should treat the language at issue differently in immigration cases, which are deemed to be “civil” in nature, from the way that it should be treated in “criminal” cases.  In other words, the government appears to be stating that the language might be unconstitutionally vague in the criminal context, but not unconstitutionally vague in the civil immigration context.

The government’s position appears to contradict the Supreme Court’s position in Leocal v. Ashcroft, 543 U.S. 1 (2004), in which the Supreme Court stated:

 “Because [this Court] must interpret the statute consistently” in “both [its] criminal and noncriminal applications,” principles governing the criminal context, including the void-for-vagueness inquiry, must govern § 16 even “in the deportation context.”

 Leocal, 543 U.S. at 11 n.8.

For more information please take a look at the government’s petition to the Supreme Court, Mr. Dimaya’s opposition, and the government’s reply.

The Supreme Court will hear arguments about this case in the first half of 2017 and will likely issue a decision by June 2017.