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