On April 17, 2018, the Supreme Court decided Sessions v. Dimaya, No. 15-1498, holding in a 5-4 decision that the Immigration and Nationality Act’s definition of “crime of violence” is void for vagueness.
The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. In 8 U.S.C. § 1101(a)(43), the INA defines “aggravated felony” by listing numerous offenses and types of offenses, one of which is “a crime of violence” as defined in the federal criminal code, 18 U.S.C. § 16. That statute defines “crime of violence” in two parts, known as the “elements clause” and the “residual clause.” The residual clause, § 16(b), covers “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.” To decide whether a person’s conviction falls within the residual clause, courts use a “categorical approach” that examines whether the “ordinary case” of a particular offense poses “a substantial risk of physical force,” rather than asking whether the crime as actually committed involved such a risk or the statutory elements of a legal violation required proof of such a risk.
James Dimaya was twice convicted of first-degree burglary under California law. Both an Immigration Judge and the Board of Immigration Appeals held that first-degree burglary is a “crime of violence” under § 16(b). While the respondent’s appeal to the Ninth Circuit was pending, the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that part of the definition of “violent felony” in the Armed Career Criminal (ACCA), 18 U.S.C. § 924(e), which covered any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally vague and therefore void. The Ninth Circuit relied on Johnson to hold that the similar definition in § 16(b), as incorporated into the INA, was also unconstitutionally vague.
The Supreme Court held that the analysis in Johnson applied to § 16(b)’s definition of “crime of violence,” and therefore that the definition was unconstitutionally vague. The Court first concluded that the “fair-notice” standard that applies to criminal statutes (like the one in Johnson) also applied to the INA’s civil provision for removal of an alien, rejecting the Government’s argument that a less searching standard should apply to a civil case and that Johnson should apply only to criminal statutes. The Court held that the “most exacting standard” should apply in removal cases “in view of the grave nature of deportation.”
After holding that the “fair-notice” standard applied, the Court concluded that Johnson controlled the outcome. Johnson held ACCA’s residual clause posed two constitutional problems: (1) indeterminacy about how to measure the risk posed by an “ordinary case” of a crime, and (2) indeterminacy about how much risk it takes for a crime to qualify as a “violent felony.” The Court concluded that § 16(b) had the same problems: (1) it calls for a court to identify a crime’s “ordinary case” to measure the risk, an approach that results in uncertainty and speculation, and (2) it contains uncertainty about the level of risk that makes a crime “violent” by requiring courts to find a “substantial risk” of physical force. The Court rejected the Government’s argument that textual differences between the ACCA’s residual clause and § 16(b)’s residual clause make § 16(b) less vague.
Justice Kagan delivered the opinion of the Court with respect to certain portions of the opinion, in which Justices Ginsburg, Breyer, Sotomayor, and Gorsuch joined. Other portions of the opinion were joined only by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment. Chief Justice Roberts dissented, joined by Justices Kennedy, Thomas, and Alito. Justice Thomas filed a separate dissenting opinion, which Justices Kennedy and Alito joined in part.