In a split decision issued today, the U.S. Supreme Court announced that gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes. The decision, Pereida v. Wilkinson, No. 19-438 (March 4, 2021) (previewed here), split the Court along ideological lines, with Justice Gorsuch writing the majority opinion and Justice Breyer leading Justices Sotomayor and Kagan in dissent. Justice Barrett didn’t participate in this case, resulting in a five to three vote. The majority and dissenters [...]
Supreme Court reinforces unconstitutionality of key sentencing phrase
All eyes this week were appropriately on the Supreme Court’s consideration of President Obama’s immigration executive actions. Just before attorneys in that monumental case took to the lectern Monday morning, the Court released an important decision reinforcing its earlier holding that a key sentencing law phrase is unconstitutional. In Welch v. United States, No. 15-6418, slip op. (April 18, 2016), the Court held that a sentencing enhancement that turns on whether a defendant has previously been convicted of a “violent felony” cannot be applied regardless when the conviction occurred. At [...]
Following Trend, Fifth Circuit Holds Definition of Crime of Violence Unconstitutionally Vague
By Sarah Flinn Agreeing with both the Seventh and Ninth Circuits, the U.S. Court of Appeals for the Fifth Circuit concluded that the definition of crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. February 10, 2016). Mr. Gonzalez-Longoria was convicted and sentenced for being illegally present in the United States in violation of Immigration and Nationality Act (INA) § 276. Id. During sentencing, the trial court determined that Mr. Gonzalez-Longoria’s prior Texas felony conviction was an [...]
Justice Scalia’s Crimmigration Legacy
Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]
Definition of Crime of Violence for Illegal Reentry Sentencing is Unconstitutionally Vague
By Sarah Flinn Relying on the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Court of Appeals for the Seventh Circuit recently held that the federal definition of “crime of violence” as defined in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015). Raul Vivas-Ceja, a citizen of Mexico, has been removed from the United States on three occasions and also has numerous convictions of varying severity. Id. at 720-21. Subsequent to Mr. Vivas-Ceja’s arrest at an airport in Madison, Wisconsin on [...]
Categorical approach returns to Supreme Court
By Nicholas Anderson and Linus Chan The Supreme Court’s decision on Tuesday to grant cert in the Texas v. United States case has gotten quite a bit of deserved attention among the media, pundits, and immigration advocates and scholars. However, crimmigration nerds should be paying attention to a different Supreme Court cert. grant on the same day. Despite not featuring an immigrant or even immigration law directly, United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (docket number 15-6092), will have a significant impact on anyone facing removal from the United States based on a [...]
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 [...]
BIA: Categorical approach is circuit-specific
No one has ever said that the categorical approach is straightforward. In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision. Immigration attorneys and judges are required to use the categorical approach to determine whether a crime falls into a category of removable offense listed in the INA. The same analysis applies to possible sentencing enhancements in criminal proceedings, thus categorical approach [...]