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.
Here we have the latest fallout from Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down as unconstitutionally vague the residual clause of the Armed Career Criminal Act. That clause enhanced sentences where the defendant had three prior convictions for a “violent felony,” defined as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”
The challenged provision here bars withholding of removal for non-citizens who have committed “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 Department of Homeland Security sought to apply this provision to deport Dimaya, who had been convicted of a burglary. Dimaya, however, convinced the Ninth Circuit that this definition, like the one in Johnson, was vague because of “indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify” under the provision. Dimaya, 803 F.3d at 1117.
Beyond its obvious significance to immigration practitioners, the result of this case will be important to criminal defense lawyers advising clients about the immigration consequences of potential (and past) convictions. Stay tuned.