Executive orders on crime include plenty about immigration

President Trump issued three more executive orders on Thursday, this time focusing his attention squarely on crime. Immigration occupies a central position in this latest EO trilogy, illustrating the Trump Administration’s immigration mindset. I printed the orders at random and didn’t make it through the first section before “illegal immigration” made an appearance. The EO titled “Task Force on Crime Reduction and Public Safety” states that it is the Trump Administration’s policy to “enforc[e] the law and develop[] policies that comprehensively address illegal immigration, drug trafficking, [...]

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 [...]

BIA: Crime of violence requires violent physical force

The Board of Immigration Appeals recently held that an aggravated battery offense could not be considered a crime of violence type of aggravated felony because the state statute did not require use of violent physical force. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016). This case involved a lawful permanent resident convicted of aggravated battery in violation of Puerto Rico Penal Code art. 122. The immigration judge concluded that this conviction satisfied the definition of crime of violence found at 18 U.S.C. § 16(a), namely, that the offense “has as an element the use, [...]

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 [...]

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 [...]

The “ordinary” case’s demise in criminal sentencing & its implications for immigration law

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 [...]

BIA flouts Supreme Court’s consistent categorical approach analysis

Just one day after the U.S. Supreme Court issued its latest decision explaining how the categorical approach of statutory analysis applies to deportation cases, the Board of Immigration Appeals issued a decision ignoring everything the Court said. In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA June 2, 2015), the BIA held that immigration judges must consider the “ordinary case” when determining whether a conviction constitutes a crime of violence aggravated felony under 18 U.S.C. § 16(b), the second of two alternative definitions of “crime of violence.” This case involved an LPR [...]