On June 26, 2017, the Supreme Court ordered re-argument in Sessions v. Dimaya, No 15-14498, for next term.
The issue in Dimaya concerns section 101(a)(43)(F) of the Immigration and Nationality Act (INA). Section 101(a)(43)(F) contains the provision for the immigration aggravated felony of “crime of violence.” It incorporates the Federal criminal definition of “crime of violence” found in 18 U.S.C. 16. 18 U.S.C. 16 contains two sections, (a) and (b). The question before the Court in Dimaya is whether 18 U.S.C. 16(b) is “unconstitutionally vague” as incorporated into the INA. The provision reads as follows:
“The term 'crime of violence' means 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.”
18 U.S.C. 16(b) is what is called the “residual clause” of the crime of violence provision.
The Court did not give a reason for ordering re-argument of Dimaya. One possibility concerns the fact that Justice Neil Gorsuch was not yet on the Court when Dimaya was argued, leaving the Court with 8 justices and, potentially, a 4-4 split decision. When there is a split decision, the decision on appeal stands [see example].
In any event, we will update the site with more information on the Dimaya proceedings, including a recap of the oral arguments next term, when it becomes available. In the meantime, please see our full selection of articles on the Dimaya proceedings thus far:
- Dimaya v. Lynch (9th Cir): Part of Statute For Aggravated Felonies For Crimes of Violence is Unconstitutionally Vague [see article];
- Supreme Court to Consider Whether Part of INA's Crime of Violence Provision is Void for Vagueness [see article]; and
- Review of the Oral Arguments Before SCOTUS in Sessions v. Dimaya (Crime of Violence Case) [see article].
Additionally, please see our brief discussion of Johnson v. United States, 135 S.Ct 2551 (2015) [see section], a 2015 decision applying the void-for-vagueness doctrine to a Federal sentence enhancement statute. Johnson is highly relevant to the Dimaya litigation.
Finally, please see our brief blog on a Supreme Court decision holding that the void-for-vagueness doctrine does not apply to Federal sentencing guidelines [see blog]. Although the issues are distinguishable from Dimaya, it is noteworthy in that this decision also examined the applicability of Johnson to a different issue.