This week the Supreme Court issued its long-awaited decision in Sessions v. Dimaya, where it held that an aggravated felony crime of violence as defined in 18 U.S.C. § 16(b) was unconstitutionally void for vagueness where the adjudicator uses the "ordinary case approach." This case limits what convictions are deemed aggravated felony crimes of violence. It’s an important decision because of the serious consequences of an aggravated felony determination. As the Supreme Court noted, an aggravated felony conviction makes removal a "virtual certainty" for noncitizens. Sessions v. Dimaya, 584 U.S. __, No. 15-1409 slip op. at 1-2 (2018).
In other non-Dimaya related news, on April 23, 2018, The Supreme Court heard oral argument in a case about Notices to Appear and the stop-time rule for cancellation. The Supreme Court will also be hearing oral arguments on the travel ban this week. And, the BIA held that the California stalking statute was overbroad and did not fall under the federal definition of stalking. No published decisions came down from the Ninth Circuit.
The Court in Dimaya held that Section 16(b) is "Mostly Dead" and Under the Categorical Approach is "Mostly Harmless"
Dimaya is a very limited decision and eliminates one half of one aggravated felony ground – there are still another 21 ½ other aggravated felonies. But, this decision will keep hundreds, if not thousands, of immigrant families together here in the United States. It’s a wild decision, and a very fun read. Well, let me temper that claim; the majority opinion and the majority dissent are typical Supreme Court cases. But, Gorsuch’s concurrence and Thomas’s dissent are unbelievable. Gorsuch starts his concurring opinion with a history of the vagueness doctrine. It cites cases from the 1800’s (not terribly unusual in a Supreme Court case) but then the cases start getting older and older. I became so distracted that, for a while, I just tracked the cites. I thought I had found gold when he cited Coke, The Second Part of the Institutes of the Laws of England, (1797) but it was fool’s gold. The winner was Goldington v. Bassingburn, Y.B. Trin. 3 Edw. II, f. 27b (1310). Yes, Gorsuch cited a case from 1310! Thomas, gave his own history lesson citing the Federalist Papers, the Alien and Sedition Act of 1798 and the Chinese Exclusion Act cases in support of his position that noncitizens do not have due process rights. The rest of the decision is fairly normal and I shall stop geeking out and discuss the actual case. If you read the decision, I think it important to read Gorsuch’s concurrence carefully, because it gives us clues on how to proceed in these cases.
Here is what is important: First, the ordinary case approach is dead. Second, 18 U.S.C. § 16(b) is on life support. Third, noncitizens who commit crimes are still removable in most cases. Here’s the factual and procedural background of the case. Mr. Dimaya is a lawful permanent resident who immigrated to the United States from the Philippines in 1992, when he was a child. He had two convictions for first degree burglary in California (Cal. Penal Code § 459, 460(a) burglary of a dwelling). ICE placed him in removal proceedings and charged him as an aggravated felon under INA § 101(a)(43)(F) (crime of violence as defined in 18 U.S.C. § 16(b)). The Immigration Court and the Board of Immigration Appeals ordered him removed. The Ninth Circuit reversed, holding that a crime of violence involving a "substantial risk" of injury was unconstitutionally vague as a ground of removal. The Ninth Circuit’s decision was based on a 2015 Supreme Court decision that came down while the appeal was pending holding that a similar statute under the Armed Career Criminals Act (ACCA) was unconstitutionally void. See, Johnson v. United States, 567 U.S. __, 135 S.Ct. 2551 (2015). Dimaya was appealed to the Supreme Court. The government argued that Johnson did not apply in immigration proceedings, because the statutes were different. The Supreme Court held that the statute as interpreted under the ordinary case approach is unconstitutionally vague. So, is 18 U.S.C. § 16(b) gone? Is it void for vagueness? Well, as Max the Wizard says in The Princess Bride: "Turns out your friend here is only mostly dead." And, as Max the Wizard notes, "mostly dead is still slightly alive." It is definitely dead under the ordinary case approach, but it might be slightly alive under the categorical approach.
The Supreme Court’s 2015 decision in Johnson is critical to understanding Dimaya. In Johnson, the Supreme Court found that the residual clause of the ACCA, that the government used to prosecute Mr. Johnson was unconstitutionally vague. It did not give Mr. Johnson proper notice of the charges against him. (I love it when white supremacist cases are used to help immigrants.) The ACCA residual clause and 18 U.S.C. § 16(b) are almost identical.
ACCA 18 U.S.C. § 924(e)(2)(B)
18 U.S.C. § 16(b)
"[A]ny crime punishable by imprisonment for a term exceeding one year …[that] is burglary, arson, or extortion or involves the use of explosives or otherwise involves conduct that presents a serious potential risk of injury to another."
"[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."
The Important Holdings
First, the majority, held that the "substantial risk" language of the statute combined with an "ordinary case approach" made the statute unconstitutionally vague. The good news for practitioners is that we no longer have to understand the ordinary case approach. We can just forget it ever existed. But, before we forget about it, we have to understand it. The "ordinary case approach" instructs the adjudicator to ask whether the "ordinary case" of an offense poses the requisite risk. The Court points out that glaring problem with the ordinary case approach is how can an adjudicator determine what an ordinary case is? Does the adjudicator use a statistical analysis of every state case? A survey? Expert testimony? Google? It’s impossible to figure out what constitutes an ordinary case.
The Court held that the term "substantial risk" in 18 U.S.C. § 16(b) combined with the ordinary case approach made the statute unconstitutionally vague. The Court was concerned about vagueness for two reasons: 1) a denial of Due Process for the immigrant (people have no fair notice of the conduct that the statute proscribes); and, 2) a separation of powers concerns. The denial of Due Process is fairly straight forward and is not surprising. But while I was surprised by the concern over the separation of powers doctrine, both the majority and Gorsuch were very concerned about violation of separations of powers. The majority explained its concerns about the vagueness doctrine and the separation of powers doctrine as follows:
And the [void-for-vagueness] doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provides standards to govern the actions of police officers, prosecutors, juries, and judges. See Kolender v. Lawson, 461 U.S. 352, 357-358 (1983). In that sense, the doctrine is a corollary of the separation of powers – requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not."
Dimaya, slip op. at 4-5.
The Court goes on to discuss the separation of powers issue. The Court also explicates the Due Process issues holding that vagueness protections apply in removal proceedings where the grave nature of consequence of deportation amounts to a lifelong banishment or exile. Gorsuch would have extended the Due Process concerns to all civil cases. He noted that civil penalties can be more extreme than criminal penalties in that they may include forfeiture provisions, stripping of professional licenses, and the power to commit persons against their will indefinitely. I can’t disagree.
Roberts’s dissent (joined by Kennedy, Thomas, and Alito) found that § 16(b) was not unconstitutionally vague. It found that there were three material differences between the ACCA residual clause and § 16(b): First, the ACCA directed the adjudicator to consider whether the offender’s conduct presented a potential risk of injury. Second, § 16(b) focuses exclusive on the risk that the offender will use physical force against the person or property of another. Finally, § 16(b) has a temporal limit. The "substantial risk" of force must be in the course of committing the offense. Thomas’s dissent was ugly, but was joined by Kennedy and Alito in some sections.
In summary, a crime of violence as defined by 18 U.S.C. § 16(b) is unconstitutional when the adjudicator uses the ordinary case approach. It might be constitutional under the categorical approach. However, the majority decision seems to indicate that the language of "substantial risk" of harm requires the ordinary case approach. "More precisely, § 16(b) requires a court to ask whether "the ordinary case" of an offense poses the requisite risk." Dimaya, slip op. at 3. This language is very ambiguous, making the statute only mostly dead. It might still be alive under the categorical approach where the adjudicator looks to the minimum conduct required for a prosecution under the statute.
Sessions v. Dimaya, No. 15-1498 (2018).
Upcoming Supreme Court Argument
On April 23, 2018, the Supreme Court heard oral arguments in Pereira v. Sessions. The issue is whether a Notice to Appear (NTA) that does not include the time and place at which proceedings will be held, triggers the stop-time rule for cancellation of removal for non-lawful permanent residents. For cancellation of removal, the noncitizen must prove that s/he has been continuously residing in the United States for ten years before being served with an NTA. In this case, Mr. Periera entered the United States in 2000 and had overstayed a tourist visa. In 2006, he was served with a NTA, but the NTA did not specify the date and time of his removal hearing. It just said that he was ordered to appear before an immigration court in Boston, "on a date to be set at a time to be set." We have all seen these NTAs. More than a year later, the court mailed Mr. Pereira a second NTA scheduled the removal hearing for October 31, 2007 at 9:30 am. He never received the second NTA because it was sent to his street address instead of to his post office box. When he did not show up, he was ordered removed in absentia. In 2013, he was arrested for a motor vehicle violation and was placed in ICE custody. He moved to reopen the old removal order based on the lack of notice. The Immigration Judge granted the motion to reopen. Mr. Pereira argued that because the first NTA was defective it did not stop time and he was eligible to apply for cancellation of removal. The Immigration Judge denied his cancellation application finding that he had not established 10 years continuous physical presence prior to service of the NTA. The BIA affirmed the IJ’s holding, based on its decision in Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011).
The First Circuit denied Mr. Periera’s petition for review. First, they rejected Mr. Periera’s claim that the notice to appear needed to include the specific time and date of the removal hearing before it could trigger the stop-time rule. Second, the First Circuit held that that the BIA’s reasoning was a permissible interpretation of an ambiguous statute under the Chevron deference doctrine. The Third Circuit came to the opposite conclusion in a different case. The Third Circuit found that the stop time rule, INA § 240A(d) necessarily required specification of time and place of the hearing to be valid. The Third Circuit held, that the NTA served on the noncitizen was devoid of "fundamental, statutorily required information and misinforming him of the proceedings’ location." The Supreme Court granted certiorari to decide this case.
Board of Immigration Appeals
Stalking Under California Law Does Not Meet the Federal Definition of a Stalking Offense
In a very hard-fought case that was remanded by the Ninth Circuit twice and has resulted in two published Board of Immigration Appeals cases; the BIA held that a stalking conviction under Cal. Penal Code § 646.9(b) is not a categorical match to the federal crime of stalking as defined by INA § 237(a)(2)(E)(i). The BIA found that the California statute was overbroad as it included nonphysical threats of harm; as opposed to the federal definition which only included physical threats of harm.
Mr. Sanchez-Lopez became a lawful permanent resident in 1993. In 2011, he was convicted of stalking under Cal. Penal Code § 646.9(b) and was placed in removal proceedings. In 2012 the Immigration Judge found him removable, and the BIA issued a published decision in the case holding that Cal. Penal Code § 646.9(b) was a crime of stalking. Matter of Sanchez-Lopez, 26 I.&N. Dec. 71 (BIA 2012). The case went to the Ninth Circuit and in January 2014, the Ninth Circuit asked the BIA to reconsider its holding in Sanchez-Lopez. The BIA reconsidered it, thought that it was right, and upheld the finding of removability. The case went back to the Ninth Circuit and in 2015, the Ninth Circuit asked the BIA to once again consider Mr. Sanchez-Lopez’s removability – even after the published decision.
This time, the BIA held that because the federal stalking statute was limited to threats of physical harm, the California statute was overbroad and included non-physical threats of harm; so there was no categorical match. The BIA found it dispositive that under the California stalking law, there was no requirement that the threat be against the life of the victim or his or her family, or that the stalker threatened great bodily injury. People v. Zavala, 30 Cal. Rptr. 3d 398, 404 (Ct. App. 2005). The government urged the BIA to redefine the term "stalking" in immigration proceedings to include cover threats of nonphysical harm. The BIA said no. They said that while they recognized that the common elements of stalking have evolved since INA § 237(a)(2)(E)(i) was added to the Act, the BIA is constrained to define offenses based on the generic, contemporary meaning of the words at the time the statute was enacted.
Matter of Sanchez-Lopez, 27 I.&N. Dec. 256 (BIA 2018).