The United States Supreme Court issued an important ruling upholding a vagueness challenge to the manner in which courts have determined whether a state criminal conviction constitutes a crime of violence and is thus an “aggravated felony” for immigration purposes. See Sessions v Dimaya (Apr. 17, 2018, No. 15-1498) 2018 US Lexis 2497.
An “aggravated felony” is a conviction that makes an alien deportable as well as ineligible for discretionary relief from deportation. 8 USC §1227(a)(2)(A)(iii). The definition of an aggravated felony includes, among other things, “a crime of violence for which the term of imprisonment is at least one year.” §1101(a)(43)(F). The term “crime of violence” is defined by 18 USC §16 in two ways: (1) the elements clause (involving the use of physical force as an element of the offense); and (2) the residual clause (a felony involving a substantial risk that physical force will be used in the course of committing the offense). In Dimaya, the court had to determine whether the petitioner’s California residential burglary was a crime of violence under the residual clause and thus an aggravated felony, leading to deportability.
Previous analysis had espoused a categorical approach based neither on an elements test nor a particular facts test, but rather on consideration of whether, when that offense is prosecuted, the “ordinary case” necessarily involves the substantial risk of physical force being used. The Ninth Circuit upheld petitioner’s challenge that the “ordinary case” analysis depended too heavily on speculation and was thus unconstitutionally vague. The Supreme Court affirmed. In Johnson v United States (2015) ___ US ___, 135 S Ct 2551, the court had rejected nearly identical language in the definition of "violent felony" in the Armed Career Criminal Act (ACCA) as also unconstitutionally vague. In Johnson, the residual clause was held to offer no reliable way to discern what the ordinary version of any offense looked like. As the court put it, “combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony […] violates the guarantee of due process.” Dimaya, at *8, citing Johnson. A fact-based test was not an viable option, because it would have a sentencing court invade the province of the jury as fact-finder. See Descamps v United States (2013) 570 US 254, 267, 133 S Ct 2276. Thus, the approach used by immigration courts that relies on the elements clause (§16(a)) remains in place and the residual clause (§16(b)) is unconstitutional.