Considering ‘Crime Of Violence’ Vagueness At The Supreme Court

In June 2015, the U.S. Supreme Court held that a criminal statute is unconstitutionally vague. At oral argument on January 17, 2017, the Supreme Court considered whether a different law, bearing a strong resemblance to that vague statute, is also unconstitutionally vague.

Lynch v. Dimaya involves a lawful permanent resident with two California burglary convictions. The federal government charged James Garcia Dimaya as an “aggravated felon” under an immigration statute, 8 U.S.C. § 1101(a)(43)(F), for having committed a “crime of violence.” That section of the immigration law references another federal statute, 18 U.S.C. § 16, which defines “crime of violence.” At issue in Lynch v. Dimaya is § 16(b), which states:

any other 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.

The immigration judge in Dimaya’s case agreed with the government, and ordered his removal as an aggravated felon for having been convicted of a “crime of violence” under 16(b). Noncitizens deemed to be aggravated felons are subject to virtually automatic removal from the United States. The Board of Immigration Appeals agreed with the immigration judge, and dismissed Dimaya’s appeal.

The Ninth Circuit, however, agreed with Dimaya’s argument that 16(b) is unconstitutionally vague, based in large part on the Supreme Court’s June 2015 decision in Johnson v. United States, holding that the residual clause of the Armed Career Criminal Act (ACCA) is vague as a violation of the Constitution’s right to due process. The ACCA residual clause reads:

otherwise involves conduct that presents a serious potential risk of physical injury to another.

Representing the government before the Supreme Court, Edwin S. Kneedler argued that the court should apply a more relaxed standard of vagueness in this case, because it is an immigration proceeding — a civil matter — rather than a criminal proceeding. Kneedler asserted that the relaxed standard is appropriate because “the U.S. Constitution does not require prior notice that conduct will give rise to removal,” and because immigration laws are administered through broad delegations of authority to administrative agencies, in contrast to criminal laws, whose meanings are interpreted by Article III judges.

Kneedler also distinguished 16(b) from the ACCA residual clause, which had created uncertainty because harms could occur even after the offense was committed, while 16(b) asks “whether the offense by its nature presents a substantial risk that physical force will be used against the person or property of another,” and “confines the analysis in both a temporal and functional sense to the elements of the offense. You don’t look at what conduct might have happened afterward.”

In contrast to the steady stream of cases presented to the courts of appeals and the Supreme Court regarding the ACCA residual clause, Kneedler maintained that the courts did not see many cases attacking 16(b). In effect, as Justice Elena Kagan observed, “it seems that everybody is getting along just fine.”

Kneedler also returned several times to the Supreme Court’s unanimous 2004 decision in Leocal v. Ashcroft, which analyzed 18 U.S.C. § 16 and concluded that a noncitizen’s conviction for a DUI incident involving injury to others was categorically not a crime of violence, and thus not an aggravated felony. In the decision, the court referred to burglary as “a classic example of a crime of violence.”

Justice Ruth Bader Ginsburg pointed out that in arguments to the court in Johnson in 2015, the government argued that if the ACCA residual clause was unconstitutionally vague, then 16(b) would be vulnerable to the same claim of vagueness.

Justices Kagan and Sonia Sotomayor expressed deep skepticism that the statute in this case is meaningfully different than the statute the court found unconstitutionally vague in Johnson. Justice Sotomayor stated that the question of what constitutes ordinary burglary “was at the center of Johnson. Why isn’t it at the center here?”

When Kneedler asserted that the phrase “by its nature” places meaningful and clarifying limitations on 16(b), Justice Kagan questioned whether the “by its nature” language made the statute any less vague than the ACCA residual clause, and asked, “How does one go about deciding what kind of conduct the ordinary case of a crime involves? A statistical analysis of the State reporter? A survey? Expert evidence? Google? Gut instinct? So that’s a multiple-choice test. What do we do?”

Justice Anthony Kennedy noted the court’s decision in Jordan v. de George, a 1951 immigration case in which the court applied the same “void for vagueness” standard that it applied in criminal cases. Kneedler countered that the parties in de George did not brief the issue, so that aspect of the decision should not be given great weight, and added that the ex post facto clause of the Constitution does not apply to immigration, so “a person can be removed for conduct that was not a basis for removal before you engaged in that conduct, criminal or not.”

Justice Sotomayor replied that “that observation was at a time before the Draconian effects of removal and deportation came into effect,” and added that “we have often said that vagueness depends on the gravity of what is at stake. Today what’s at stake is a lot more than what was at stake decades ago.”

E. Joshua Rosenkranz, on behalf of Dimaya, argued that the two factors that doomed the ACCA residual clause as unconstitutionally vague — hypothesizing the ordinary case of a set of elements, and then estimating the degree of inherent risk — are also present in 16(b).

In response to Kneedler’s argument that the courts have not been saddled with interpretive conundrums involving 16(b), Rosenkranz replied that every single case that the Supreme Court decided regarding the ACCA residual clause had been presented to the court along with simultaneous petitions for certiorari in the 16(b) context, and the court would grant, vacate and remand (GVR) the 16(b) cases, and then the lower courts and the Supreme Court would cross-reference the ACCA residual clause cases into 16(b), treating them equivalently.

Rosenkranz also stated that many of the sorts of cases that the Supreme Court had decided regarding the ACCA residual clause are appearing again in the lower courts, this time regarding 16(b). Rosenkranz also replied that “it is simply not true to say that ‘everyone is getting along just fine in the lower courts.’” Rosenkranz indicated that he and amicus National Immigration Project have identified 10 circuit splits.

Justice Ginsburg countered that 16(b) may be viewed as more precise than the ACCA residual clause, because it is limited to the commission of the offense, and that the offender must be the person who uses the force, and it covers the use of force against the victim’s property.

Rosenkranz replied that courts have uniformly held that the phrase “in the course of” does not entail a temporal limitation. Moreover, courts will still need to be imagining the ordinary case. Finally, the textual differences between the ACCA residual clause and 16(b) are not meaningful —  the clauses say “the same thing in different words.”

Justice Stephen Breyer expressed concern that invalidating 16(b) as unconstitutionally vague could invite future litigation regarding assertions of vagueness in other civil cases, involving the clarity of terms such as “moral turpitude, unfair competition, just and reasonable rates, public convenience and necessity” and “a hundred others.” Justice Samuel Alito also appeared uncomfortable with the idea of invalidating 16(b), positing that a host of statutes and terms could be attacked as vague.

Justice Alito asked a series of questions focused on whether or not a statute with civil and criminal applications must be subjected to the same test for unconstitutional vagueness in both contexts. In other words, could a statute be unconstitutionally vague in a criminal application while being constitutional in a civil application, such as in an immigration case?

Rosenkranz replied that the court’s decision in Jordan v. de George settled the question —  that the interpretation of a statute must be the same in the immigration context as it is in the criminal context.

Justice Alito took issue with Rosenkranz’s interpretation of Jordan, and indicated instead that an alternative reading is that it did not prohibit a relaxed vagueness standard for a statute applied in the immigration context. Rosenkranz replied that in a number of cases, the Supreme Court held statutes to the same vagueness standard, whether in civil or criminal applications.

Rosenkranz then turned to the absurd effect of a disparate standard for criminal and civil applications of the statute. Supposing that the court concluded that 16(b) passes constitutional muster in immigration cases but is unconstitutionally vague in criminal applications, then Dimaya could be deported as an aggravated felon in an immigration case, then return to the United States the following day and be found to be not subject to criminal sanctions for re-entry as an aggravated felon.

Rosenkranz concluded by highlighting the practical consequences of the case. Holding 16(b) to be constitutional will lead to a series of cases parallel to the cases that the Supreme Court had to address regarding the ACCA residual clause. Rosenkranz stated that the Supreme Court should avoid a repeat of those cases, and end the conflict with this case, by holding that 16(b), like the ACCA residual clause, is unconstitutionally vague.

The Supreme Court will need to decide whether the “void for vagueness” standard in the immigration context is the same as the standard used in criminal cases. Adherence to Jordan would lead the court to apply the vagueness standard in this case in the same manner as in criminal cases. Justice Kennedy appeared to place considerable weight on the Jordan precedent.

The Court could decide, instead, to depart from Jordan on the ground that the vagueness issue in that case had not been briefed by the parties, or on the interpretation suggested by Justice Alito. Such a departure would result in the court applying a more relaxed vagueness standard in this case because it is a civil case. The court would face the task of delineating how to apply the vagueness test in a less stringent way. The justices are also likely concerned that a strict application of the vagueness test in this case has the potential to open the courts to a flood of civil litigation, as Justices Breyer and Alito had suggested.

Depending on the outcome of exactly how to apply the vagueness standard in this case, the court will also need to decide whether 16(b) suffers from the same vagueness as the ACCA residual clause, or whether the textual differences between the two clauses result in a meaningful distinction. It appears likely that Justices Kagan and Sotomayor are prepared to conclude that 16(b) does not pass the test. It is less clear whether Chief Justice John Roberts and Justice Ginsburg would reach the same result, given their comments suggesting that 16(b) is more precise than the ACCA residual clause.

The Supreme Court is expected to rule on the case by June 2017.

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