Supreme Court to Consider Whether Part of INA's Crime of Violence Provision is Void for Vagueness

 

Introduction: Supreme Court Grants Cert in Lynch v. Dimaya

Lynch v. DimayaOn September 29, 2016, the Supreme Court agreed to hear Lynch v. Dimaya, 15-1498, on appeal from the United States Court of Appeals for the Ninth Circuit. The case concerns whether part of the Immigration and Nationality Act's (INA's) definition of an aggravated felony crime of violence in section 101(a)(43)(F) is unconstitutionally vague. Specifically, the question regards the INA's incorporation of 18 U.S.C. 16(b), a non-immigration federal criminal statute. It is important to note that the issues presented do not call into question the INA's incorporation of 18 U.S.C. 16(a) in the same provision.

In this article, we will examine briefly the question presented, the underlying statutes, the procedural history, and what the Supreme Court's decision may ultimately mean for immigration law.

To learn more about the background of Lynch v. Dimaya, please see our full article on the Ninth Circuit decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [PDF version], that we published last year [see article].

Relevant Statutes and Question Presented

Before examining the question before the Supreme Court, we must first understand the pertinent statutes at play in the case.

Relevant Statutes

Dimaya concerns the INA's provision for aggravated felony crime of violence in section 101(a)(43)(F) of the INA. The provision defines as an aggravated felony:

a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment was at least one year…

“Section 16 of title 18” refers to a federal criminal statute, 18 U.S.C. 16. In short, rather than include a specific definition of the term “crime of violence,” the INA relies upon the definition found in a non-immigration provision of the U.S. Code. The only thing that the INA adds is that the crime must carry a term of imprisonment of at least one year.

18 U.S.C. 16 contains two parts, (a) and (b). 18 U.S.C. 16(a) is not at issue in Dimaya. However, for comparison's sake, the following is the definition of “crime of violence” found in 18 U.S.C. 16(a):

[A]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another…

The definition for crime of violence in 18 U.S.C. 16(a) comes up often in the immigration context, and we have discussed specific cases and examples extensively on this site. For example, please refer to the following links about cases and issues involving 18 U.S.C. 16(a) in the immigration context:

  • Leocal v. Ashcroft: Narrowing the Scope of “Crime of Violence [see article];
  • Matter of Guzman-Polanco: BIA Holds that State Statute Requires “Violent” Physical Force to be a Crime of Violence [see article; BIA clarification];
  • Voisine v. U.S.: Question of Whether “Crime of Violence” Includes “Reckless Conduct” [see article; update]; and
  • Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) — Board Follows Mathis Regarding Determining Divisibility [see article].

The second provision, which is at issue in Dimaya, is found in 18 U.S.C. 16(b). It defines as a crime of violence:

[A]ny 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.

A summary reading of the statute reveals that 18 U.S.C. 16(b) is more vague than 18 U.S.C. 16(a). While part (a) defines as a crime of violence an offense that actually has “as an element the use, attempted use, or threatened use of physical force against the person or property of another,” 18 U.S.C. 16(b) includes within its scope offenses that, by their nature, “[involve] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Thus, while 18 U.S.C. 16(a) only requires adjudicators to determine whether an element of conviction under a statute necessarily involves the use or threatened use of physical force against an individual or his or her property, 18 U.S.C. 16(b) requires adjudicators to assess whether an offense necessarily [involved] the use or threatened use of physical force against an individual or his or her property.

Question Presented

The Supreme Court set forth the question presented in Lynch v. Dimaya [PDF version]. The question is as follows:

Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.

In short, the issue presented in the case is not whether 18 U.S.C. 16(b) itself is unconstitutionally vague, but rather whether it is unconstitutionally vague as appropriated for purpose of the immigration laws.

Lower Court Decision and Other Circuit Precedent

The Supreme Court granted the government's petition for review from the Ninth Circuit decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We discuss the Ninth Circuit decision in extensive detail on site [see article]. For the purpose of this article, we will provide a brief summary of its holding.

In Dimaya v. Lynch, a two-judge majority of a three-judge panel on the Ninth Circuit held that the INA's incorporation of 18 U.S.C. 16(b) (through section 101(a)(43)(F) of the INA) is unconstitutionally vague. Specifically, the majority found that it was void for vagueness in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution. The majority found support for its position in the Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 [PDF version]. In Johnson, the Supreme Court struck down the incorporation by the Armed Career Criminal Act's (an enhanced sentencing statute) of a residual clause provision on void for vagueness grounds. In issuing its decision in Dimaya, the Ninth Circuit found that the similarities between the issue in Johnson and the issue in Dimaya v. Lynch were such that it was bound by Supreme Court precedent in Johnson.

Both the Sixth and Tenth Circuits reached the same conclusion as the Ninth Circuit regarding the unconstitutionality of the INA's incorporation of 18 U.S.C. 16(b):

  • Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016) [PDF version]; and
  • Golicov v. Lynch, 2016 WL 4988012 (10th Cir. 2016) [PDF version].

The issue has also been addressed by the Fifth and Seventh Circuits outside of the section 101(a)(43)(F) context. In United States v. Viva-Ceja, 808 F.3d 719 (7th Cir. 2015) [PDF version], the Seventh Circuit found 18 U.S.C. 16(b) unconstitutionally vague in a non-immigration context. However, in United States v. Gonzalez-Longoria, —- F.3d —— (5th Cir. 2016) [PDF version], the Fifth Circuit disagreed with Dimaya v. Lynch and found that 18 U.S.C. 16(b) is not, on its face, unconstitutionally vague (the issue regarded its incorporation in enhanced sentencing that affected the respondent's immigration situation).

It is quite possible that the split between the Sixth, Seventh, and Tenth Circuits and the Fifth Circuit played a role in the Supreme Court's decision to review Dimaya. In general, the Supreme Court is more likely to review issues in which the law is being applied differently in different Circuits. Furthermore, because immigration laws are federal, it is not merely an issue of courts reading state statutes differently. Additionally, the disagreement between the Circuits, with most Circuits yet to weigh in, specifically involves questions regarding how to interpret a recent Supreme Court decision (Johnson).

One thing that will bear watching is that if the case is ultimately decided by an eight-member Supreme Court instead of a full nine-member Supreme Court, a split decision will leave standing the Ninth Circuit's decision in Dimaya without creating binding precedent on the issue. We recently saw this very thing occur in the high profile case regarding the legality of the enactment of the DAPA program [see blog].

Supreme Court Alignment in Johnson

No two cases are the same, and we cannot say for certain whether the Supreme Court will find the situation in Dimaya similar to that in Johnson. However, a careful analysis of Johnson may provide clues as to where the Justices may stand on some of the issues in Dimaya.

The majority opinion, upon which the Ninth Circuit relied in Dimaya, was authored by the late Justice Antonin Scalia [see blog]. He was joined in full by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There were two separate concurring opinions filed by Justices Anthony Kennedy and Clarence Thomas, respectively. These concurring opinions agreed with the majority opinion in judgment only (that the petitioner was not subject to enhanced sentencing), but they did not agree with the reasoning of the majority that the residual clause statute in question was void for vagueness. Rather, both Justices Kennedy and Thomas applied the categorical approach to analyzing the language of the statute. Justice Samuel Alito agreed with Justices Kennedy and Thomas that the residual clause provision at question was not unconstitutionally vague, but he disagreed with the majority and Justices Kennedy and Thomas in judgment as well.

Conclusion

Lynch v. Dimaya joins Lynch v. Morales-Santana [see article] as an interesting immigration case pending before the Supreme Court. If the Supreme Court ultimately agrees with the Ninth Circuit, it would greatly limit the scope of the immigration aggravated felony crime of violence provision by striking 18 U.S.C. 16(b) from its scope. In such a case, adjudicators could only rely on the definition of a crime of violence found in 18 U.S.C. 16(a) in charging an alien as having committed an aggravated felony crime of violence. However, if the Supreme Court decides against the Ninth Circuit majority, the current precedent of the Sixth and Ninth Circuits, and most likely the Seventh, would likely no longer be good law. Such a decision would allow immigration adjudicators to continue relying upon 18 U.S.C. 16(b) in charging aliens with having committed an aggravated felony crime of violence.

We will update the site with more information on the proceedings as the case moves forward.