crImmigration.com

The intersection of criminal law and immigration law

  • Home
  • About César
  • Publications
  • Public Appearances
  • Book

9 Cir. finds part of crime of violence definition unconstitutional

The U.S. Court of Appeals struck an important blow against the crime of violence type of aggravated felony yesterday holding that part of the term’s definition is unconstitutionally vague. Dimaya v. Lynch, No. 11-71307, slip op. (9th Cir. Oct. 19, 2015). The court held that the so-called “residual clause” of the crime of violence definition fails to provide migrants with sufficient notice of the kind of conduct it prohibits to satisfy the Fifth Amendment Due Process Clause.

This case involved a lawful permanent resident twice convicted of first-degree burglary in violation of California Penal Code § 459. Upon these convictions, DHS claimed that he had been convicted of a crime of violence and thus removable. The immigration judge and Board of Immigration Appeals agreed. On appeal, the Ninth Circuit disagreed.

Building off last June’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), from the U.S. Supreme Court striking down as void for vagueness a similar provision in the Armed Career Criminal Act (ACCA), a sentencing enhancement statute, yesterday’s decision was much anticipated. The ACCA and the INA use remarkably similar language to expand the crime of violence concept’s reach. Under the stricken ACCA provision, an offense is a “violent felony” if it “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Under the INA, an offense is a “crime of violence” if it “involves a substantial risk that physical force against the person or property of another may be used” while committing the crime. 18 U.S.C. § 16(b).

In Johnson’s aftermath, all crimmigration eyes turned to the lower courts to weigh in on its relevance to the INA provision. As Linus Chan presciently wrote on this blog, “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.”

Like the ACCA, the crime of violence definition at 18 U.S.C. § 16(b) that the INA taps requires walking a shaky path between the traditional categorical approach that requires a focus on the elements of a statute of conviction and the so-called “ordinary case” methodology where, to quote Chan, “a judge examines a hypothetical ‘ordinary’ version of the crime, and assesses the risk for injury from that hypothetical set of facts.” That conflicting instruction proved too much for the Court to bear in the sentencing context and too much for the Ninth Circuit to bear in the INA’s context. In the circuit court’s words, “As with ACCA’s residual clause, § 16(b)’s definition of a crime of violence, combines ‘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 crime of violence.” Dimaya, No. 11-71307, slip op. at 15.

The Ninth Circuit’s decision is welcome news for migrants, but it’s unlikely to be the last word. I fully expect the Justice Department to request rehearing by the full Ninth Circuit. Because this issue is popping up in other circuits and the Ninth Circuit’s decision is likely to resonate there, I wouldn’t be at all surprised if there are enough votes on the court to grant that expected rehearing request.


Find this information useful? Learn more from Crimmigration Law, César’s just-released book available from the American Bar Association here.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Posted by César on October 20, 2015 on 4:00 am Leave a Comment
Filed Under: 9th Circuit Court of Appeals, ACCA, aggravated felony, categorical approach, crime of violence, Due Process Clause

Leave a Comment Cancel reply

Your email address will not be published. Required fields are marked *

Subscribe


César’s Recent Media

April 18: Quoted talking about ICE's efforts to conceal contents of training manuals used by its largest division, Homeland Security Investigations Read article here]

April 12: Discussed legal limits on deploying troops inside United States and the memory of Esequiel Hernández, Jr., teen shot by Marines in 1997 [Read article here (in Spanish)]

April 12: Quoted in article about brewing Fourth Amendment battle that develops when ICE arrests people inside homes [Read article here]

April 3: Quoted in Univision Noticias article about Trump's plans to deploy National Guard to border [Read article here (in Spanish)]

April 1: Quoted in article about Coloradans affected by Trump administration's decision to end TPS protections for citizens of some countries [Read article here]

March 29: Quoted in article about Fourth Amendment and ICE attempts to enter homes [Read article here]

March 16: Quoted discussing shifts between Obama and Trump administration immigration policing practices [Listen here]

March 8: Quoted discussing Justice Department lawsuit against California over its migrant-friendly policies [Read article here | Lea en español]

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

December 28: My crimmigration.com article about immigration prison population trends since 1990s makes Prison Policy Institute's "favorite criminal justice research of 2017" [Read PPI's list here]

December 22: Quoted in ThinkProgress article about legally dubious immigration detainer practices [Read article here]

December 20: Interviewed in Philadelphia NPR affiliate WHYY story about ICE arrests in area courthouses [Listen to story here]

December 12: My three-part white paper series on immigration detention published by Latino Community Foundation of Colorado [Read articles on adults, children and families, and vulnerable populations]

Learn more about César's media appearances here

Recent Posts

  • Legal limits on military deployment along US border
  • ICE transitioned from Obama to Trump with record high daily detention population
  • ICE detention population closed Obama era at record daily high
  • Immigration budget bill summary
  • Supreme Court to hear another immigration imprisonment case
  • Jennings v. Rodriguez highlights need for detention time limits

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.