Case No. 15-1498 | 9th Cir. Decision
What makes a crime violent? The answer is hardly obvious. Two years ago, in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court invoked the void-for-vagueness doctrine to strike down part of the definition of “violent crime” in the Armed Career Criminal Act (“ACCA”), a law establishing mandatory minimum sentences for defendants with three qualifying convictions. Dimaya, a challenge to a similar provision of federal law incorporated into the Immigration and Nationality Act (“INA”), will test the reach of Johnson’s holding and could shield aliens in the United States with criminal convictions from deportation.
James Garcia Dimaya, a Philippine native and legal permanent resident of the United States, was convicted of two separate residential burglaries in California. The Department of Homeland Security (“DHS”) sought to remove Dimaya from the United States, arguing that the burglary qualified as an “aggravated felony” under the INA because it met the Act’s definition of a “crime of violence.” An immigration judge ordered Dimaya’s removal, and the Board of Immigration Appeals dismissed his appeal. While Dimaya’s petition was pending before the Ninth Circuit, the Supreme Court decided Johnson. In light of the Court’s conclusion that part of the ACCA’s definition of “violent crime” is unconstitutionally vague, the Ninth Circuit invalidated the similarly worded portion of the definition on which the Board of Immigration Appeals relied in removing Dimaya.
Seeking to contain Johnson’s effects, the government argues first that the Supreme Court’s invocation of the vagueness doctrine in that case is inapplicable in immigration law because removal proceedings are civil, not criminal. The due process limitations in the vagueness doctrine, the government argues, apply only to penal statutes. Alternatively, the government argues that even if the vagueness inquiry applies to the federal definition used by the INA, the law satisfies both factors of the test: fair notice and standards preventing arbitrary and discriminatory enforcement.
Dimaya argues that the definition of “violent crime” incorporated into the INA is no different from the constitutionally infirm definition in the ACCA. Both statutes, Dimaya notes, require courts to imagine the “ordinary case” of the underlying offense to determine if it meets the definition—a hypothetical inquiry that motivated the Court’s holding in Johnson. Moreover, Dimaya cites Jordan v. DeGeorge, 341 U.S. 223 (1951), to argue that removal proceedings, while civil, should be subject to the vagueness doctrine because of the severity of the penalty involved.
Despite Johnson’s recent vintage, the Court may look for a reason to avoid extending its holding to immigration law. Johnson produced a somewhat unusual split on the Court, with Justice Scalia writing for the majority, Justices Kennedy and Thomas concurring only in the judgment, and Justice Alito dissenting. Justice Scalia’s death and replacement with Justice Gorsuch could therefore scramble the Court’s decision. Perhaps with an eye to the new composition of the Court, the government has also warned of a potential domino effect of holding the challenged portion of the definition unconstitutionally vague, with unforeseeable effects on the enforcement of immigration laws and perhaps others as well.