Introduction: Dimaya v. Lynch Holds Part of the Aggravated Felony Statue for “Crimes of Violence” Unconstitutional
On October 19, 2015, a two-judge majority of a three-judge panel of the Ninth Circuit held in Dimaya v. Lynch, 803 F.3d 1110 (Oct 19, 2015) [PDF version] held that 101(a)(43)(F) of the Immigration and Nationality Act (INA), which defines aggravated felonies for a “crime of violence,” is unconstitutionally vague under the Due Process Clause of the Fifth Amendment in its incorporation of 18 U.S.C. 16(b). In rendering its decision, the Ninth Circuit relied upon the recent Supreme Court decision in Johnson v. United States — U.S. -, 135 S.Ct. 2551 (2015) [PDF version]. This article will discuss the case background, the reasoning behind the decision, and the potential future litigation over Johnson's application to 18 U.S.C. 16(b) as it is incorporated into the INA.
Facts of the Case
The petitioner was a lawful permanent resident. In both 2007 and 2009, he was convicted of first-degree residential burglary under California law and sentenced on both occasions to two years' imprisonment. The Department of Homeland Security (DHS) cited the two convictions in charging the petitioner as deportable under section 237(a)(2)(A)(iii) of the INA for a conviction of an aggravated felony under section 101(a)(43)(F). That section, which defines an aggravated felony for a “crime of violence” in the immigration context, requires that the sentence for the crime be a “term of imprisonment [for] at least one year” and incorporates 18 U.S.C. 16 to define a “crime of violence”:
- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
- (b) 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 DHS relied upon subsection (b), that is that the burglary statute criminalized activities that “[involve] a substantial risk hat physical force against the person or property of another may be used in the course of committing the offense.” The Immigration Judge (IJ) agreed with the DHS and cited the Ninth Circuit decision in United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990) [PDF version] in stating that “unlawful entry into a residence is by its very nature an offense where is apt to be violence [sic]….” The IJ found that both convictions were for “crimes of violence” because the charging documents for each conviction both alleged an unlawful entry, and because of the term of imprisonment for each was greater than 1 year. Accordingly, the IJ also found the petitioner ineligible for cancellation of removal. The Board of Immigration Appeals dismissed the petitioner's appeal on the same ground. The petitioner then appealed to the Ninth Circuit.
Decision of the Court
The court noted that after the parties had argued the case, the Supreme Court rendered a decision in Johnson v. United States — U.S. -, 135 S.Ct. 2551 (2015). In the Johnson decision, the Supreme Court considered a different provision of the ACCA in a non-immigration case. The Supreme Court held that the “residual clause” of 18 U.S.C. 924(e)(2)(B) which classified any felony that “involves conduct that presents a serious potential risk of physical injury to another” as a “violent felony” to be unconstitutionally vague under the Due Process Clause of the Fifth Amendment. The Supreme Court noted that the categorical approach as set forth in Taylor v. United States, 495 U.S. 575, 600 (1990) requires a court to study whether the defendant was convicted of a crime falling under certain categories, and not to the facts underlying the conviction. With regard to the residual clause, the Supreme Court held that it was unconstitutionally vague because:
- “By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate risk posed by a crime.”
- “[The] residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
As we will explain, the Ninth Circuit relied upon the Johnson decision in holding section 101(a)(43)(F) to be unconstitutionally vague.
The Ninth Circuit explained that the Fifth Amendment's Due Process Clause “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”1 Furthermore, it noted that it had previously applied the vagueness doctrine in the context of withholding of removal in Alphonsus v. Holder, 705 F.3d 1031, 1036-37 (9th Cir. 2013), and that extending the vagueness doctrine to cancellation of removal was appropriate. The Ninth Circuit also relied upon the 1951 Supreme Court decision in Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) which applied the vagueness doctrine to a statute involving the term “crime involving moral turpitude,” which was under the existing statutory scheme, “a type of offense that allowed for a non-citizen to 'be taken into custody and deported.'”2
In applying the Johnson decision, the Ninth Circuit noted similarities between 18 U.S.C. 16(b), at issue in Dimaya v. Lynch, and the residual clause in 18 U.S.C. 924(e)(2)(B)(ii), which was struck down in Johnson. The similarities include:
- The statutes share similar language. 18 U.S.C. 16(b) covers offenses that, by their nature, involve a substantial risk of the use of physical force. The residual clause covered conduct that presented a serious potential risk of injury to another.
- Both statutes are subject to the categorical approach.
After establishing the similar characteristics of the two statutes, the Ninth Circuit assessed whether the Supreme Court majority's reasoning in Johnson applied to 18 U.S.C. 16(b) such that the statute is “unconstitutionally vague.” The court noted that Johnson struck down the residual clause both because it “tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime” and it left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
First, the court noted that like the residual clause, 18 U.S.C. 16(b) requires courts to “inquire whether 'the conduct encompassed by the elements of the offense, in the ordinary case, presents'” a substantial risk of force.3 The Ninth Circuit noted, that the INA's definition of a crime of violence using 18 U.S.C. 16(b) offers (quoting Johnson) “no reliable way to choose between these competing accounts” of what a crime looks like in the ordinary case.
With regard to evaluating “risk,” the Court again noted the similarities between 18 U.S.C. 16(b) and the residual clause. It noted in Johnson that the Supreme Court stated it required judges to apply “an imprecise 'serious potential risk standard' … to [the] judge-imagined abstraction” or a crime in the ordinary case. The Court stated that 18 U.S.C. 16(b) “gives judges no more guidance than does the [residual clause] as to what constitutes a substantial enough risk of force to satisfy the statute.”
The Ninth Circuit rejected the government's three primary arguments that the holding in Johnson did not apply to 18 U.S.C. 16(b). We will briefly examine the first two.4
First, the government argued that the residual clause was distinct because it 'force[d] courts to interpret 'serious potential risk' in light of the four enumerated crimes” in the provision (burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”). This point was accepted by the dissent. However, while the majority agreed that this increased the uncertainty of the residual clause, it believed that Johnson was reached because the residual clause was vague in and of itself.
Second, the government argued that the residual clause required courts to consider the risk after the completion of the offense, whereas 18 U.S.C. 16(b) applies to violence occurring “in the course of committing the offense.” However, the Court rejected this distinction entirely.
Accordingly, the majority held that consistent with Johnson, the INA's incorporation of 18 U.S.C. 16(b) renders that portion of section 101(a)(43)(F) unconstitutionally vague. The Court accordingly granted review and remanded the case to the BIA for further proceedings.
It is worth discussing in brief that the majority decision drew a dissent. The dissent argued that Johnson's holding does not apply to 18 U.S.C. 16(b), and that 18 U.S.C. 16(b) is not unconstitutionally vague. Additionally, the dissent notes that in Johnson, the Supreme Court did not so much as note its decision in Leocal v. Ashcroft, 543, U.S. 1, 125 S.Ct [see our article], which addressed 18 U.S.C. 16(b) as incorporated into the INA.
It quoted from Johnson, “we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct.” Furthermore, citing Leocal, it noted that 18 U.S.C. 16(b) sets forth the test of a “substantial risk that physical force against the person or property of any many be used in the course of committing an offense.” The dissent concluded with, “I fear that we have again ventured where no court has gone before and that the Supreme Court will have to intervene to return us to our proper orbit.”
Conclusion: Dimaya v. Lynch Holds Part of the Aggravated Felony Statue for “Crimes of Violence” Unconstitutional
Dimaya v. Lynch is certainly an interesting ruling by the Ninth Circuit, and the first major application of Johnson in the immigration context. However, it is important to note that Dimiya v. Lynch is only precedent in the Ninth Circuit, and will likely be subject to further litigation. It is not at all clear that the majority's holding of the applicability of Johnson to 18 U.S.C. 16(b), and by effect section 101(a)(43)(F) of the INA, will be followed by other circuits or, ultimately, the Supreme Court. For these reasons, future litigation regarding the applicability of Johnson to section 101(a)(43)(F) will bear close watching.
- Alphonsus v. Holder, 705 F.3d 1031, 1036-37 (9th Cir. 2013); quoting from Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct 75 L.Ed.2d 903 (1983)
- The government argued that Jordan does not apply to deportation statutes.
- Delgado-Hernandez v. Holder, 697 F.3d 1125, 1128 (9th Cir.2012); quoting James v. United States, 550 U.S. 192, 211, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)
- The government argued that the residual clause created greater confusion among courts than 18 U.S.C. 16(b). However, the Ninth Circuit majority neither accepted the conclusion nor found it relevant in any case to whether 18 U.S.C. 16(b) is unconstitutionally vague.