Last week the U.S. Supreme Court agreed to hear two cases with possible crimmigration law implications. Attesting to immigration law’s broad intersection with criminal procedure and criminal law, the first case concerns criminal procedure while the second concerns criminal law.
Fourth Amendment: Heien v. North Carolina
The first case, Heien v. North Carolina, No. 13-604, asks the Court to consider whether a police officer’s mistaken understanding of criminal law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. The police officer pulled over a vehicle in which Heien was riding because it had a faulty brake light. The officer incorrectly thought that, under North Carolina law, a vehicle must have two operating taillights. Heien subsequently argued that the officer’s mistake of law rendered the stop unconstitutional. The North Carolina Supreme Court disagreed. It concluded that “the Fourth Amendment’s reasonable suspicion standard is not offended by an officer’s objectively reasonable mistake of law.” State v. Heien, 737 S.E. 2d 351, 357 (N.C. 2012).
The U.S. Supreme Court’s decision in this case could affect crimmigration law because motions to suppress filed in immigration court are based on Fourth Amendment violations. If a migrant is arrested or convicted on the basis of a stop that violates the Fourth Amendment, then theoretically it is possible to try to suppress that evidence in removal proceedings. This is a tough path to successfully navigate, though, because in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court announced “the exclusionary rule need not be applied in such a [deportation] proceeding.” It left some room for situations involving “widespread” or “egregious” violations of the Fourth Amendment. Id. at 1051.
Though advocates have recently claimed some success in excluding evidence from removal proceedings under this standard, traditionally courts have been rather stringent. Even if the Supreme Court concludes that the stop in Heien violated the Fourth Amendment, I’m skeptical that immigration courts, the BIA, or federal courts reviewing their decisions will conclude that the Fourth Amendment has been violated “egregiously” if the case involves nothing more than the police officer having been wrong about the law. As the Eighth Circuit explained in Puc-Ruiz v. Holder, 629 F.3d 771, 778 (8th Cir. 2010), “Lopez-Mendoza requires more than a violation to justify exclusion.”
Of course, this only addresses the “egregiousness” component of Lopez-Mendoza and says nothing about the possibility that police officers violate the Fourth Amendment frequently through mistakes of law. If so, this could fit into the “widespread” exception to Lopez-Mendoza’s general conclusion that the exclusionary rule doesn’t apply in removal proceedings. Not too long ago the Third Circuit breathed some life into the “widespread” violations prong when it remanded a case with instructions that the BIA consider evidence that a Fourth Amendment violation might have been part of a larger pattern. Oliva-Ramos v. Attorney General 694 F.3d 259, 289 (3d Cir. 2012).
Statutory Construction: Johnson v. United States
The Supreme Court also agreed to hear a case about possession of a firearm, 18 U.S.C. § 922(g)(1), a federal crime that is included in the Immigration and Nationality Act’s sprawling definition of “aggravated felony.” Johnson v. United States, No. 13-7120. The lower court’s opinion, 526 F. App’x 708 (8th Cir. July 31, 2013) (unpublished), and the cert stage briefing suggest that the Court’s decision will not significantly affect crimmigration law.
This case involved a white supremacist who was convicted of possessing multiple firearms despite having been previously convicted of “a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). The sentencing judge concluded that he was subject to a mandatory minimum sentence of 15 years imprisonment for having been convicted of three previous “violent felon[ies].” 18 U.S.C. § 924(e)(1). One of those violent felonies was a Minnesota conviction for possession of a short-barreled shotgun, Minnesota Statute § 609.67. Johnson, 526 F. App’x at 709. Johnson argued that this offense shouldn’t count as a violent felony. The district court disagreed with him and the Eighth Circuit affirmed.
Initially I thought this case could have significant implications for crimmigration law because the statutory definition of “violent felony,” 18 U.S.C. § 924(e)(2)(B), closely resembles the definition of “crime of violence” used for immigration law purposes, INA § 101(a)(43)(F) (referencing 18 U.S.C. § 16). According to the U.S. Code, a violent felony is an offense 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.
A “crime of violence,” meanwhile, is defined 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.”
Section (a) of both definitions is essentially identical.
The Eighth circuit, however, didn’t reach its decision on (a). Instead, it relied on a discussion from an earlier decision discussing (b), what many courts and commentators refer to as the “residual clause” of the “violent felony” definition. Johnson, 526 F. App’x at 711. The parties have also focused on the residual clause. See Petition for Writ of Certiorari, Johnson v. United States, No. 13-7120, at ii (October 28, 2013); Brief for the United States in Opposition, Johnson v. United States, No. 13-7120, at I (February 2014).
I’ll be curious to see whether the parties change their focus during the merits stage briefing. There is some room to do so given that the question presented in the petitioner’s brief isn’t limited to the residual clause. It simply asks the Court to consider “[w]hether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act?”
Despite this wiggle room, I doubt that they’ll shift focus. The Eighth Circuit’s opinion is very clearly grounded in the residual clause. If the parties continue to hone in on the residual clause, then I think this case is unlikely to affect crimmigration law in any significant manner. I’ll keep watching, though, because odder things have happened.
That said, Johnson’s conviction under 18 U.S.C. § 922(g)(1) for possessing a firearm after having previously been convicted of “a crime punishable by imprisonment for a term exceeding one year” is undoubtedly an aggravated felony. INA § 101(a)(43)(E)(ii). Because neither the Eighth Circuit nor the parties have focused on § 922(g)(1), I don’t think the Court’s decision will significantly affect our understanding of this provision either.
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