President Donald J. Trump greets Supreme Court Justice Neil Gorsuch at the 2018 State of the Union
The Supreme Court just got something right in a big way, and its decision has huge implications for immigrants in the U.S., most of all for thousands at risk of or awaiting deportation. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, along with Neil Gorsuch, decided that one provision of legislation mandating the deportation of immigrants who commit certain types of crimes is so vague, and generates such unpredictable results, that it’s unconstitutional.
Until this ruling, the Immigration and Nationality Act, or INA, required authorities to deport aliens, a.k.a. immigrants, convicted of an aggravated felony, including crimes of violence. It also ruled out cancelation of removal—a way to halt deportation proceedings—for those immigrants. Problem was, the statutory definition of “crime of violence” upon which the INA relied was rather hazy:
“(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.”
It’s that second part, referred to as the “residual clause,” that inspired this case. Courts have been deciding what constitutes a crime of violence under (b) based on categories of offenses and the “ordinary nature of the offense”—meaning the generic version of that crime—rather than the facts of a particular offense.
For James Dimaya, that meant that even if he didn’t harm or attempt to harm anyone, burglary was a deportable offense.
In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). “[B]y its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.” Dimaya sought review in the Court of Appeals for the Ninth Circuit.
The Ninth Circuit Court of Appeals—which hears federal appeals from Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon, and Washington—determined on the basis of a prior Supreme Court case, Johnson v. United States, concerning the definition of a “violent felony,” that the residual clause is unconstitutionally vague. The Supreme Court, led by Kagan, agreed.
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