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.

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