Immigration Supreme Court

Gorsuch Is Swing Vote in Important SCOTUS Immigration Law Decision

Taylor Walker
Written by Taylor Walker

The U.S. Immigration and Nationality Act (INA) effectively ensures that any immigrant, even those who are lawful permanent residents, who is convicted of an “aggravated felony” will be deported. Yet, the INA gives a broad definition for what qualifies as an “aggravated felony,” a definition that grabs in its net even some misdemeanor offenses.

The “aggravated felony” category also includes “crimes of violence,” which the federal law defines as a felony offense which “involves a substantial risk” that physical force may be used against a person or their property while the crime is committed.

On Tuesday, the U.S. Supreme Court struck down this “crime of violence” provision as “unconstitutionally vague,” affirming a 9th Circuit Court of Appeals ruling for which the late Judge Stephen Reinhardt wrote the majority opinion.

Justice Neil Gorsuch swung the 5-4 vote in Sessions v. Dimaya, siding with the high court’s liberal justices for the first time since he was appointed last April.

The ruling is of considerable import. Federal immigration laws, “historically, have been almost wholly immune from judicial review,” according to SCOTUSblog’s Kevin Johnson.

James Garcia Dimaya, a lawful permanent U.S. resident, who immigrated from the Philippines in the early 1990s, at age 13, was twice convicted of first-degree burglary. While the two burglaries did not involve violence, the immigration court decided that there was “substantial risk” of violence during the commission of the crimes, qualifying Dimaya for deportation under INA’s “aggravated felony” provision.

Each year, immigration courts have deported thousands of immigrants based on “criminal-removal” grounds. Many of these immigrants are, like Dimaya, legal residents. Many, too, arrived as children.

In one of many noteworthy cases, Miguel Perez, a former US Army soldier (and green card-holder) who suffered PTSD and brain injuries during two Afghanistan tours, was recently deported to Mexico for a 2010 “aggravated felony” clause-qualifying drug crime for which he served half of a 15-year sentence. His drug addiction, he said, was the result of PTSD that went untreated by Veterans Affairs. Perez said that he arrived in the US as a child and believed he was a citizen. The man reportedly didn’t know he was being deported until he was at the border.

While James Dimaya’s appeal was pending in the 9th Circuit, the U.S. Supreme Court issued a similar ruling in Johnson v. United States, finding that the federal Armed Career Criminal Act’s definition of a “violent felony” was vague enough that it violated the Fifth Amendment’s right to due process.

Pointing back to the high court’s decision in Johnson, the 9th found INA’s “crimes of violence” clause to be similarly unconstitutionally vague.

Justice Elena Kagan wrote the opinion for the majority, which included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and, in part, Neil Gorsuch. The INA “crimes of violence” provision “has the same two features as ACCA’s residual clause—an ordinary—case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way,” Kagan wrote. “ACCA’s residual clause created ‘grave uncertainty about how to estimate the risk posed by a crime’ because it ‘tie[d] the judicial assessment of risk’ to a speculative hypothesis about the crime’s ‘ordinary case,’ but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise ‘serious potential risk’ standard on top of the requisite “ordinary case” inquiry.” The INA clause suffers from the same problems, according to the justices.

The court has established previously that deportation is “a particularly severe penalty”—one that could be “of greater concern to a convicted alien than ‘any potential jail sentence,'” Kagan wrote. Immigration courts may no longer hang this serious penalty on a such a “hopelessly indeterminate” provision, thanks to the Supremes.

Justice Gorsuch agreed in part with the majority opinion, and in the final judgment and penned his own opinion, saying that “[v]ague laws invite arbitrary power.”

The U.S. Constitution “looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin applying it,” Gorsuch wrote.

“Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products,” Gorsuch said. “How, on that vast spectrum, is anyone supposed to locate the ordinary cases and say whether it includes a substantial risk of physical force? The truth is, no one knows.”

Civil laws, too, should be closely examined to ensure that they are not vague, Gorsuch said. “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

Chief Justice John Roberts dissented. He was joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.

The clause in question, Roberts wrote, “asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender ‘grave uncertainty about how to estimate the risk posed by a crime.’ And the provision’s use of a commonplace substantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable ‘uncertainty about how much risk it takes for a crime to qualify.’”

Thomas wrote a second dissent saying that he doubted that the high court’s “practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” Moreover, he did not find the statute to be vague when the immigration court applied it to Dimaya’s case.

The case was argued before the high court last term, but the justices—then evenly split without the late Justice Antonin Scalia or his successor, Justice Gorsuch—ordered reargument.

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