By Linus Chan
When Congress passed the Armed Career Criminal Act (ACCA) of 1984, federal courts needed to systematically decide what state convictions required sentencing enhancements designed to punish not only “habitual criminals” but “violent” offenders as well with higher sentences. Congress, however, didn’t define what makes for a violent offense and the lower courts were torn: did Congress mean for state law to govern or was a uniform, nationwide definition to apply?
In 1990, the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), decided that a uniform definition was required and that a “categorical approach” was needed to apply Congress’s definition of a violent felony. Around the same period, Congress required people who had been convicted of a “crime of violence” to be labeled as aggravated felons and if a non-citizen, deported. While sentencing federal courts needed to figure out whether a crime was a “violent felony,” immigration adjudicators were asked to figure out whether someone has been convicted of a “crime of violence.” Unsurprisingly, Congress used similar phrases to describe both types of crime. Last month the Supreme Court in Johnson v. United States, No. 13-7120, 576 U.S. ___ (U.S. June 26, 2015), decided that the congressional definition of a violent felony for sentencing purposes was so vague as to be unconstitutional. The ripples of this sentencing case will be felt in immigration law proceedings, specifically for people deciding whether a crime is one of violence under 18 U.S.C. 16(b), the definitional section that the Immigration and Nationality Act references.
As readers of crImmigration.com are well aware, and as Alina Das has written in the past, the categorical approach has been part of immigration law for a long time. However, Taylor placed emphasis on the doctrine not just for immigration, but also as a mandate for sentencing law. In the 2000s the Court began to apply a stricter categorical approach for immigration cases, but also began to wrestle with its application in ACCA cases. The biggest culprit was a deceptively tricky turn of phrase. 18 U.S.C. § 924(e)(2)(B) defines “violent” felonies with two separate subsections. Subsection (i) should be familiar to fans of the categorical approach for it required an examination of the elements to find “force” either in use or threatened use in the statutes of conviction.
It was the second phrase though that caused the headaches. Congress allowed classification for a violent felony if the crime,
(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;
This portion of the statute became known as the “residual clause” of ACCA and it presented a dilemma. The categorical approach was the rule, and its mandate clear: the facts of the crime and underlying conduct of a defendant were unimportant. And yet, the definition provided by Congress demanded an examination of “conduct that presents a serious potential risk of physical injury.” As the Court in James v. United States, 550 U.S. 192, 207 (2007) put it, “These are inherently probabilistic concepts.” How could a court assess risk if it could not examine conduct?
To solve this dilemma James created the “ordinary case” methodology: where instead of conduct, a judge examines a hypothetical “ordinary” version of the crime, and assesses the risk for injury from that hypothetical set of facts. Id. at 208. The James Court was quick to point out that there were “unusual cases in which even a prototypical violent crime might not present a genuine risk of injury,” but that wasn’t the concern—the “ordinary crime” was to be the lodestone. Id. Judges were not examining the underlying conduct, which was forbidden by the categorical approach, and yet were able to try and assess “risk” of injury, even when no element of the crime requires injury.
After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a “crime of violence” under 18 U.S.C. § 16(b). Section 16(b)’s language is not an exact match to ACCA’s residual clause, but isn’t far off. Section 16(b) defines a crime of violence as a felony which, “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.” Like the ACCA’s residual clause, § 16(b) requires an examination of risk, and also looks at whether force is used “in the course of committing the offense.” Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the “ordinary case” from James to § 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to § 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the “ordinary case” method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining “risk based” definitions. The James ordinary method, it seemed, had become embedded in immigration law.
The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the “ordinary case” method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the “ordinary case” rule. “It ties the judicial assessment of the risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts for statutory elements,” the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other “risk-assessment” statutes did their work by “gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as ‘substantive risk’ to real-word conduct…” Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. “Because ‘the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,’” the Court concluded, “this abstract inquiry offers significantly less predictability than one ‘[t]hat deals with the actual, not with an imaginary condition other than the facts.’” Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).
Despite the Court’s clear position that the ordinary crime approach is too vacuous to provide defendants with the due process guaranteed by the Fifth Amendment, Johnson also revealed an important fundamental rift among the justices. Justice Alito, in his dissent, dropped any defense of the “ordinary case” methodology and instead argued that the true culprit was the “categorical approach” and its mandate that underlying conduct was off-limits. Justice Alito urged the Court to drop the categorical approach in its entirety and instead use a “real-world” approach that would examine the underlying conduct.
So where does the striking down of the residual clause leave 18 U.S.C. § 16(b)’s definition of crime of violence that plays a hugely important role in immigration adjudications? One possibility is that like the residual clause, § 16(b) is also unconstitutionally vague. The Solicitor General certainly worried about this scenario as he argued in his brief to the Supreme Court in Johnson, that § 16(b) suffers from a similar defect as the residual clause. (“[Section 16] is equally susceptible to petitioner’s central objection to the residual clause. Like the ACCA, Section 16 requires a court to identify the ordinary case of the commission of the offense and to make a commonsense judgment about the risk of confrontations and other violent encounters.” Supplemental Brief for the United States, Johnson v. United States, No. 13-7120, 22-23 (March 2015). And while not often invoked and usually limited to criminal statutes and sentencing concerns, the void for vagueness doctrine has been applied to issues of removability in the immigration context. Addressing the crime involving moral turpitude provision of immigration law, the Supreme Court in Jordan v. De George, 341 U.S. 223 (1951) explained,
Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation. The Court has stated that ‘deportation is a drastic measure and at times the equivalent of banishment or exile * * *. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty.’ Fong Haw Tan v. Phelan, supra. We shall, therefore, test this statute under the established criteria of the ‘void for vagueness’ doctrine.
Id. at 231. A careful reader will notice precursor language to Padilla v. Kentucky, 559 U.S. 356 (2010), and a theme from Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Mellouili v. Holder, No. 13-1034, 575 U.S. __ (2015), that encouraged understanding the immigration consequences of criminal convictions in order to properly vitiate the Sixth Amendment. It wouldn’t be unreasonable to assume that if the Court really did view § 16(b) as interchangeable from the residual clause of ACCA, it might hold the statutory provision unconstitutionally vague.
The impact of Johnson’s decision is not limited, however, to the scenarios where § 16(b) is considered unconstitutionally vague. The statutory language of the residual clause and § 16(b) do have differences. While the residual clause looked for “potential” risk, § 16(b) looks for an actual risk; where the residual clause tried to look for injury, § 16(b) requires “force”; and, finally, the residual clause lists enumerated offenses such as arson and burglary, while § 16(b) does not. Whether or not these differences are important in deciding if the entire phrase from § 16(b) is unconstitutionally vague will ultimately be decided in federal court.
Even if § 16(b) survives general constitutional scrutiny, that doesn’t mean Johnson won’t change how it is applied. When the BIA decided Francisco-Alonzo they had been given a choice between the “ordinary case” methodology and the “least culpable conduct” test used by the Moncrieffe court. The Johnson majority and Justice Alito’s dissent had agreed on one issue: that assessing risk for a hypothetical “ordinary” case is not viable. The BIA could have, and hopefully will now at the very least, avoid the unconstitutional “ordinary case” method and adopt Moncrieffe’s least culpable conduct test in deciding § 16(b) cases. If a conviction can arise from conduct that does not create a serious risk of the use of force, then it cannot qualify as a crime of violence.
Linus Chan is a visiting associate professor of clinical law at the University of Minnesota and the Center for New Americans. He teaches a clinic on representing people who are detained by Immigration and Customs Enforcement.
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