The U.S government targets noncitizens with criminal
convictions for removal from the United States. These efforts have allowed
President Barack Obama’s administration to deport approximately 2.5 million
noncitizens during Obama’s eight years in office, more than any other president
in American history.
On several recent occasions, the Supreme Court has found
that the administration went too far and has set aside orders of removal of
criminal offenders that it has found to be inconsistent with the immigration
statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor
conviction for possession of drug paraphernalia did not justify removal.
In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent
resident’s conviction for possession of a small amount of marijuana – now legal
in many states – did not mandate removal. Next week, the Supreme Court will
hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with
potentially far-reaching constitutional implications.
A noncitizen,
including a lawful permanent resident, who is convicted of an “aggravated
felony” is subject to mandatory removal. The Immigration and Nationality Act
defines “aggravated felonies” expansively to include crimes, including some
misdemeanors, that run the gamut from murder to virtually any drug and firearm
offense. That definition incorporates 18 U.S.C. §16(b), known as the “residual
clause,” which defines a “crime of violence” to encompass “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.”
In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia,
struck down as unconstitutionally vague the Armed Career Criminal Act’s
definition of “violent felony,” which included crimes that “involve conduct
that presents a serious potential risk of physical injury to another.” The Johnson court held that the statutory
language “fail[ed] to give ordinary people fair notice of the conduct it
punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”
Born in the Philippines,
James Garcia Dimaya has lived in the United States as a lawful permanent
resident since 1992. Based on Dimaya’s two California burglary convictions, the
U.S. government sought to remove him from the United States. Finding that
burglary was a “crime of violence” under Section 16(b)’s residual clause and
thus an “aggravated felony,” an immigration judge ordered Dimaya removed. The Board
of Immigration Appeals agreed. In a rare decision finding a removal provision
of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals
for the 9th Circuit concluded that Section 16(b)
was void for vagueness.
Before the court, the
solicitor general defends the constitutionality of Section 16(b). He first
contends that the court of appeals erred in applying the due process clause’s
prohibition of vagueness in criminal statutes to a civil immigration law. The government
relies on the 1982 case Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., in
which the court stated that it has shown “greater tolerance of enactments with
civil rather than criminal penalties.” The solicitor general claims that
vagueness challenges to the immigration laws are especially inappropriate
because “the Executive Branch possesses broad authority in the administration
of the immigration laws because of their foreign relations and national
security implications.” He further argues that, even if subject to a vagueness
challenge, Section 16(b) satisfies due-process requirements.
Dimaya contends that, in
seeking to bar vagueness challenges to the immigration laws, the government is
seeking nothing less than to overrule the court’s 1951 decision in Jordan v. DeGeorge, which rejected a
vagueness challenge to a provision of the immigration laws that authorizes
removal of an immigrant for “any crime of moral turpitude.” The court in Jordan found that due process requires fair
notice of which crimes will trigger removal because of “the grave nature of
deportation.” Dimaya argues that “Jordan is
. . . consistent with this Court’s cases demonstrating that contemporary
vagueness standards in criminal cases apply to civil statutes that impose
similarly severe consequences … .” In recent cases like Padilla v. Kentucky, a 2009 decision that involved the scope of
immigrants’ Sixth Amendment right to effective assistance of counsel in
criminal cases, the court observed that removal is a key part of criminal
punishments for immigrants today. Given that background, Dimaya contends, Johnson v. United States compels
a finding that Section 16(b) is unconstitutional.
In recent years, the
Roberts Court has moved immigration law into the legal mainstream, employing
generally applicable principles of statutory construction and administrative
law when adjudicating immigration-law cases. However, the court has been slow
to apply the Constitution to judicial review of the substantive admission,
removal and citizenship provisions of the immigration laws. Several cases
before the court this term raise constitutional challenges to the immigration
and nationality laws. Lynch v. Morales-Santana involves the constitutionality of the immigration
law’s distinctions between mothers and fathers in bestowing citizenship on
children born out of wedlock. In Jennings v. Rodriguez, the challenge to immigrant detention, the court in
December asked for supplemental briefing on the constitutional issues raised by
the case. This term’s decisions in this trio of cases may help clarify the
place of the Constitution in judicial review of cases arising under the
immigration laws.
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