By Attorneys Eric R. Welsh & Nancy E. Miller
The Supreme Court issued a decision on Tuesday that will potentially spare thousands of immigrants from deportation, and allow many others to seek relief that they were previously told was not available. In Sessions v. Dimaya, the Court held that part of the definition of a “crime of violence” is unconstitutionally vague. The decision should immediately benefit any immigrant who is charged with removability as an alien convicted of a “crime of violence,” and will open doors that were previously closed to immigrants with certain criminal convictions.
The case concerns the application of the aggravated felony ground of deportability, and provides important limits on the lengths that immigration judges can go to in finding that a person should be removed from the U.S. or barred from relief. Under the Immigration and Nationality Act (INA), an alien convicted of an aggravated felony is deportable from the United States, and ineligible for certain forms of relief including cancellation of removal. If an alien is out of status and convicted of an aggravated felony, Immigration & Customs Enforcement (ICE) can order deportation without ever appearing before a judge. Aggravated felonies can render an alien ineligible for waivers, discretionary relief, and even asylum. In short, the consequences of a conviction for an aggravated felony are severe.
The INA sets forth twenty-one different classes of crimes that constitute aggravated felonies. One of those classes is a “crime of violence” for which the term of imprisonment is at least 1 year. The term “crime of violence” is defined in the federal criminal code (in part) as “any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Applying this definition, an immigration judge determined that a conviction for California first-degree burglary constituted a crime of violence, and ordered James Dimaya, a lawful permanent resident, to be deported. The Supreme Court accepted the case for review in order to resolve a conflict amongst the circuit courts regarding the constitutionality of the definition. Writing for the Court, Justice Elena Kagen began by affirming that the prohibition of vagueness in criminal statutes is essential to due process, “required by both ‘ordinary notions of fair play and the settled rules of law.’” Justice Kagen rejected the Government’s argument that a less exacting form of void-for-vagueness should apply to immigration proceedings, noting that under binding precedent, the most exacting standard for vagueness should apply in immigration proceedings “in view of the grave nature of deportation—a drastic measure often amounting to lifelong banishment or exile.”
Applying this exacting standard, the Court concluded that the definition of “crime of violence” is unconstitutionally vague. Justice Kagen noted that the definition required a fact-finder to “imagine” a hypothetical “idealized ordinary case of the crime,” an invitation to speculate from “whole-cloth” based on nothing more than gut instinct. Moreover, according to Justice Kagen, the definition did not specify “what threshold level of risk made any given crime a ‘violent felony.’” Combined, these two features result in “grave uncertainty” and a lack of predictable application. As such, the definition is void-for-vagueness, and unconstitutional.
The decision in Dimaya will considerably limit the Government’s ability to remove certain aliens with criminal convictions. Any alien who has been found deportable for a “crime of violence” conviction or deemed ineligible for relief on that basis may be able to challenge that conclusion and avoid deportation or apply for relief. The Dimaya decision is a reminder that the immigration laws have constitutional limits, and an immigration judge cannot deport a person simply because that judge believes that a particular crime seems “violent.” To trigger the draconian consequences that attend to an aggravated felony, the alien must be convicted of a crime that leaves no doubt as to the risk of violence involved in its commission. Gut instinct alone is not sufficient.
Any alien with a criminal record should consult an experienced immigration attorney to determine the consequences of a conviction, and the options for relief. The laws are constantly evolving, and doors once closed can be opened again.
