On April 17, the Supreme Court issued a 5-4 decision in Sessions v. Dimaya, striking down a provision of the Immigration and Nationality Act that virtually guaranteed the deportation of an immigrant convicted of an “aggravated felony,” including “ a crime of violence.” Writing for the majority, Justice Elena Kagan compared the definition of “crime of violence” to the similarly phrased definition of “violent felony” within the Armed Career Criminal Act (ACCA), a provision that the Supreme Court struck down in Johnson v. United States for being unconstitutionally vague under the Fifth Amendment’s due process clause. Applying the logic of Johnson, the court held that the definition of “crime of violence” in the INA was similarly unconstitutionally vague.
Factual Background and Procedural History
James Dimaya is a native of the Philippines who was admitted into the United States in 1992 as a lawful permanent resident. In 2007 and again in 2009, Dimaya was convicted of first-degree residential burglary under California law. For each conviction, Dimaya was sentenced to two years in prison. Based on these two convictions, the Department of Homeland Security said Dimaya was removable because Dimaya had committed a “crime of violence … for which the term of imprisonment [was] at least one year,” which would be an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F).
An immigration judge held that the California first-degree burglary crime meets the §16(b) prong (the “residual clause”) of the definition of crime of violence. After the Board of Immigration Appeals affirmed, Dimaya appealed his case to the Ninth Circuit.
While his case was pending in the Ninth Circuit, the Supreme Court in Johnson considered whether part of the definition of “violent felony” in the ACCA was unconstitutionally vague. The ACCA defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B) (emphasis added).
The court in Johnson found the “otherwise involves conduct that presents a serious potential risk of physical injury to another” portion of the definition unconstitutionally vague.
Relying on Johnson, the Ninth Circuit ruled in Dimaya’s favor. It overturned the immigration appeal and struck down §16(b) as it is incorporated into the INA for its vagueness. The Courts of Appeals for the Sixth and Seventh Circuits reached the same conclusion about §16’s residual clause as applied to crime-based deportation cases, whereas the Fifth Circuit upheld the clause. The Supreme Court granted certiorari to resolve the circuit split.
Relevant Statutory Provisions and Background Law
The term “crime of violence” is defined in 18 U.S.C. §16 as:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) 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.
A commonly used term within the Federal Criminal Code, “crime of violence” is also incorporated into the INA’s definition of an “aggravated felony” (8 U.S.C. §1101(a)(43)(F)). A conviction for an aggravated felony can trigger serious immigration consequences. Any noncitizen who has been convicted of an aggravated felony can be removed from the United States and is ineligible for many forms of discretionary relief (§§1227(a)(2)(A)(iii), 1229(b)(a)(3), (b)(1)(C)). As Kagan explained, “removal is a virtual certainty for any alien who is convicted of aggravated felony.” By extension, removal is virtually certain in the case of a conviction for a “crime of violence” for which the term of imprisonment is at least one year.
In accordance with Supreme Court’s precedent, courts use the “ordinary-case” approach to determine whether an individual’s conviction falls within the residual clause of §16. Under this approach, courts do not examine the risk that was posed by the person’s actual. Instead, the relevant inquiry is whether the “ordinary case” of the offense that was committed poses the “substantial risk [of] physical force" as required in §16(b).
Justice Kagan affirmed the Ninth Circuit’s ruling on the residual clause of §16 in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and in large part, Neil Gorsuch.
First, in a portion of the opinion that Justice Gorsuch did not join, the plurality considered the government’s argument that Johnson was distinguishable because it was criminal case. According to the government, in a prior decision the court had demonstrated greater tolerance for vagueness in “enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” While agreeing that removal from the United States is not criminal punishment, Kagan rejected the government’s argument, noting that the court “long ago held that the most exacting vagueness standard should apply in removal cases” because of the severe consequences of deportation, which can amount to a “lifelong banishment or exile” from the United States. As a result, the plurality held that it was appropriate to subject provisions of immigration law to the same “void for vagueness” standard that is applied to criminal statutes. Thus, according to the plurality, the only way that the §16’s residual clause could be used in immigration hearings was for the government to show that the residual clause was “materially clearer than its now-invalidated ACCA counterpart.”
The court, now joined by Justice Gorsuch, turned to that inquiry and found that the case was resolved by Johnson, “a straightforward decision, with equally straightforward application” to §16(b). The court explained that “§16’s residual clause has the same two features as ACCA’s, combined in the same constitutionally problematic way.” The first feature of §16’s residual clause is the ordinary case analysis, which in Johnson created “grave uncertainty about how to estimate the risk posed by a crime.” To illustrate the vagueness created by ordinary case analysis, Justice Kagan recounted the example from Johnson of two different judges trying to assess the level of risk of violence involved in the ordinary case of attempted burglary:
One judge, contemplating the “ordinary case,” would imagine the “violent encounter” apt to ensue when a would-be burglar was spotted by a police officer or private security guard. Another judge would conclude that any confrontation was more likely to consist of an observer’s yelling “Who’s there?” ... and the burglar’s running away. But how could either judge really know? (internal quotations and citations omitted).
The problem, Kagan says, for the residual clause of 16(b) as with the residual clause in the ACCA is that the statute in both cases provides no assistance to courts on how to perform the task of determining the ordinary case of a particular offense.
The second troubling feature of §16(b) is the indeterminate level of risk required to make a crime “violent.” The court conceded that the language of §16(b) requires a “substantial risk,” a standard that is not unconstitutionally vague on its own. The problem is that courts would have to apply the indeterminate standard to “a judge-imagined abstraction” of the ordinary case of a crime. Therefore, the court held that as with its companion clause in the ACCA, §16’s residual clause had “both an ordinary-case requirement and an ill-defined risk threshold” that invited unpredictability and arbitrary enforcement beyond a level tolerable by the due process clause.
Justice Gorsuch concurred in part and concurred in the judgment. His opinion focused on two points. He first argued that the void-for-vague doctrine “enjoys a secure footing in the original understanding of the Constitution,” by invoking the Constitution’s structure and legal history dating back to Blackstone. His defense of the doctrine was a response to Justice Clarence Thomas’s extensive criticism of the doctrine in dissent.
The second point of Justice Gorsuch’s concurrence addressed the appropriate standard of vagueness for civil statutes. Justice Gorsuch agreed with the plurality that the same standard in Johnson should apply to this case; however, instead of applying that exacting standard only in the immigration removal situations, Justice Gorsuch advocated applying it to far more civil contexts. As Justice Gorsuch said, “grave as that penalty [of removal from the United States] may be, I cannot see why would single it out for special treatment when … so many civil laws today impose so many similarly severe sanctions.”
Justice Gorsuch agreed with the judgment on the grounds that §16’s residual clause left “leaves the people to guess about what the law demands—and leaves judges to make it up.” Nevertheless, he underscored the limitations of the court’s decision. First, he explained that he assumed §16 requires an ordinary-case analysis because neither party argued for argued for a different method of reading the statute. In addition, he noted that the vagueness doctrine fails to conform to procedural due process, and that there was no substantive due process violation. Finally, Justice Gorsuch emphasized that the court is only striking the incorporation of “crime of violence” into the INA’s definition of “aggravated felonies,” so Congress “remains free…to write a new residual clause that affords the fair notice lacking here.” Moreover, Justice Gorsuch declared that the other types of aggravated felonies defined in 8 U.S.C. §1101(a) remained untouched by the decision.
Chief Justice Roberts, joined by Justices Anthony Kennedy, Samuel Alito and Clarence Thomas, dissented. Roberts disagreed with the majority’s reliance on Johnson, arguing that his colleagues “too readily dismiss[ed] the significant textual differences between §16(b) and the ACCA residual clause.”
Roberts highlighted three differences between the two clauses. First, the ACCA’s residual clause focuses on potential risk of injury whereas §16’s only addressed the actual risk. Second, Roberts noted that determining the “risk of physical force” in §16(b) is a more determinate task than determining the “risk of physical injury” more broadly. Finally, Roberts focused on the temporal limitation in the residual clause of §16: “in the course of committing the offense.” There is not analogous temporal element in the ACCA’s residual clause. Roberts illustrated through several examples how these three textual differences make the ordinary-case analysis more determinate under §16 than under the ACCA.
Roberts also addressed the second feature of §16’s residual clause that the court identified: The uncertainty surrounding what level of risk would make a crime violent. According to his analysis, the court struggled with the ACCA’s residual clause because of the enumerated crimes that preceded it: burglary, arson or extortion or a crime involving the use of explosives. By contrast, Roberts found the substantial risk standard in §16(b) “significantly less confusing because it is not tied to a disjoined list of paradigm offenses.” Given these differences, Roberts would not have applied Johnson, and would instead have upheld the use of §16(b) in removal proceedings.
Justice Thomas agreed with the Justice Roberts, but raised two main points in a separate dissent. First, Justice Thomas reiterated his position from Johnson itself, casting doubt on whether the Supreme Court’s “practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the [5th Amendment] Due Process Clause.” His other point, which was joined by Justice Kennedy and Justice Alito, concerned the resolution to vagueness. Instead of striking down the residual clause, Justice Thomas argued that the court should simply not apply the “ordinary case” approach to the clause. In fact, he argued that constitutional avoidance doctrine requires the Court to reject the ordinary case approach to §16(b).
Sessions v. Dimaya struck down one important crime-based grounds of removal. However, the long term impact of the court’s decision is uncertain. President Trump tweeted shortly after the decision that “Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons.”