Metropolitan News-Enterprise


Tuesday, October 20, 2015


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Panel Says Law Defining ‘Crime of Violence’ Is Void as Vague




A Board of Immigration Appeals ruling calling for deportation of a twice-convicted burglar is invalid because the statute defining each of his crimes as an “aggravated felony” is unconstitutionally vague, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a 2-1 decision, the panel granted James Garcia Dimaya’s petition for review and sent his case back to the BIA.

Dimaya, a citizen of the Philippines, has been a permanent U.S. resident since 1992. He was convicted of first degree burglary in 2007 and again in 2009, under Penal Code §459.

Each conviction drew a two-year prison term. After the second conviction, the Department of Homeland Security initiated removal proceedings charging Dimaya with having been convicted of an aggravated felony.

Unlike other categories of removable aliens, those convicted of an aggravated felony are not eligible for discretionary relief.

Aggravated Felony

The DHS charged that each of his offenses was an aggravated felony because it met the definition of a “crime of violence” punishable by at least one year in prison, set forth in 8 U.S.C. §1101(a)(43)(F).  

That provision of the Immigration and Nationality Act incorporates the definition in 18 U.S.C. §16, which says that a crime of violence is “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…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.”

Based on that definition, as well as Ninth Circuit precedent, an immigration judge found that a residential burglary is categorically a crime of violence because of the risk of violence inherent in the unlawful intrusion into a residence. The IJ also found Dimaya removable because he had been convicted of crimes of moral turpitude and of a “theft…or burglary offense for which the term of imprisonment [was] at least one year,” but the BIA only ruled on the aggravated felony, Judge Stephen Reinhardt noted in his opinion for the Ninth Circuit.

High Court Case

While Dimaya’s petition was pending before the Ninth Circuit, the U.S. Supreme Court Court decided Johnson v. United States (2015) 135 S. Ct. 2551, declaring the definition of “violent felony” in the Armed Career Criminal Act unconstitutionally vague. That statute provided that any crime punishable by more than a year in custody was a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another.”

After supplemental briefing and argument, the Ninth Circuit majority—Reinhardt and Judge Kim Wardlaw—concluded that the definition of “crime of violence” in the immigration statute suffers from the same defects as the definition considered by the high court in Johnson.

“The [Johnson] Court’s reasoning applies with equal force to the similar statutory language and identical mode of analysis used to define a crime of violence for purposes of the INA,” Reinhardt wrote. “The result is that because of the same combination of indeterminate inquiries, § 16(b) is subject to identical unpredictability and arbitrariness as ACCA’s residual clause.”

Dissenting Opinion

Judge Consuelo Callahan, dissenting, noted that the Johnson court expressly declared that it was not calling other statutes into question, adding:

“[W]e are asked whether the statutory scheme is somehow so vague or ambiguous as to preclude the BIA from concluding that Dimaya’s two first-degree burglaries are ‘crimes of violence’ under § 16(b). Supreme Court precedent and our case law answer the question in the negative.”

Unlike in Johnson, Callahan explained, “[t]here is no uncertainty as to how to estimate the risk posed by Dimaya’s burglary crimes,” that risk being inherent in every such crime, nor does the definition of the crime permit uncertainty as to “how much risk it takes for a crime to qualify.”

The case was argued in the Ninth Circuit by Andrew M. Knapp of Southwestern Law School for Dimaya, Nancy Canter of the Department of Justice for the government, and Sejal Zota of the National Lawyers Guild for amici in support of Dimaya.

The case is Dimaya v. Lynch, 11-71307.


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