Supreme Court Strikes Down One Clause of Aggravated Felony Crime of Violence Definition

Wendy Barlow's picture

On April 17, 2018, the Supreme Court of the United States issued its much anticipated decision in Sessions v. Dimaya, 584 U.S. __ (2018) [PDF version].

Under section 101(a)(43)(F) of the Immigration and Nationality Act (INA), a “crime of violence” is an immigration aggravated felony. Section 101(a)(43)(F) incorporates the Federal criminal statute, 18 U.S.C. 16, for the definition of an “aggravated felony.” 18 U.S.C. 16 contains two clauses, 16(a) and (b). 18 U.S.C. 16(b) is the “residual clause” of the crime of violence statute, sweeping up “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.”

The question before the Supreme Court was whether 18 U.S.C. 16(b), as incorporated into the INA, is unconstitutionally “void for vagueness.” The United States Court of Appeals for the Ninth Circuit held that it was, in a decision that we analyzed in detail on site [see article]. The Supreme Court took the case on appeal in 2016 [see article] and heard oral arguments [see article] before rescheduling the case for a second round of oral arguments in January 2018 [see article].

In Sessions v. Dimaya, the Supreme Court held by a 5-4 margin that 18 U.S.C. 16(b) is void for vagueness, affirming the Ninth Circuit. The opinion of the Court was authored by Justice Elena Kagan, and joined in full regarding the vagueness analysis by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Neil Gorsuch. Justice Gorsuch's vote was likely decisive in light of the fact that the Supreme Court had rescheduled the case after not reaching a decision when it had only eight justices, suggesting that the Court had been deadlocked. However, Justice Gorsuch, who filled the vacant seat on the Court, did not join in part of Justice Kagan's opinion, which distinguished cases involving deportation from other civil cases. Justice Gorsuch wrote his own opinion concurring in part and concurring in judgment.

Two separate dissenting opinions were authored. The first was by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. The second was authored by Justice Thomas, which was joined in part by Justices Kennedy and Alito. Interestingly, Justices Kennedy, Thomas, and Alito were the three dissenters in Johnson v. United States, 135 S.Ct. 2551 (2015) [PDF version], wherein the Court held that a similar residual clause provision was unconstitutional in the criminal sentence enhancement context [see article]. In that case, Chief Justice Roberts joined a majority opinion authored by former Justice Antonin Scalia, who was of course replaced by Justice Neil Gorsuch.

In effect, the decision effectively writes 18 U.S.C. 16(b) out of the INA, meaning that a “crime of violence” under section 101(a)(43)(F) encompasses only those offenses defined in 18 U.S.C. 16(a). For examples of such offenses, please see our BIA decisions on section 101(a)(43)(F) [see section] and our article on the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 [see article].

In the coming days, we will post a series of articles on Dimaya along with a topic index containing these articles and past articles we have published on the issue. Please continue to follow our site for these articles and other important updates on immigration law.

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Supreme Court Strikes Down One Clause of Aggravated Felony Crime of Violence Definition