Supreme Court tallies important victory for immigrant due process

On Tuesday, in the case of longtime green card holder James Dimaya, the U.S. Supreme Court struck down a section of the law that all but requires the deportation of noncitizens convicted of certain criminal offenses. In so doing, the court, in a decision written by Justice Kagan and joined by Justices Sotomayor, Breyer, Ginsburg and, in large part by recent Trump appointee Justice Gorsuch, struck an important blow to the deportation machine and chalked up a victory for due process. Justice Gorsuch wrote separately regarding the gravity of deportation as a penalty; he also addressed Justice Thomas’s dissent.

The Immigration and Nationality Act (INA) is a labyrinth of cross-referenced statutory provisions that contain the grounds on which a noncitizen can be excluded from the United States, or deported from the United States once here. Included in the grounds of deportation are a category of offenses considered “aggravated felonies.” Curiously, these offenses need neither be aggravated nor felonies. Among them are certain so-called “crimes of violence” for which the term of imprisonment is at least one year.

{mosads}There are two types of “crimes of violence,” but for the purposes of Tuesday’s decision, the  court grappled with just one. Specifically, those crimes of violence under Section 16(b) of the United States Code including “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.”

Mr. Dimaya, a resident of the United States for nearly 30 years, had been convicted of two burglary offenses in California, neither involving violence. On this basis, he was facing mandatory deportation from the United States. Both the immigration judge and the Board of Immigration Appeals ordered him removed on that basis. But in 2015, the 9th Circuit, relying on Johnson v. United States, a decision written by the late Justice Scalia, finding that a similar provision in the Armed Career Criminal Act violated due process for being unconstitutionally vague, overturned Mr. Dimaya’s removal order.

Relying on the Johnson case, in Dimaya’s case the court explained that in order to determine whether a particular crime fits within the ambit of 16(b), judges are asked to do the nearly impossible — determine, without looking at the underlying facts of the case, whether the “ordinary case” of this kind of offense poses the risk required by the language of 16(b). Perhaps unsurprisingly, the litigation and confusion arising from such an ask is legion:

Does the “ordinary case” of unauthorized use of a motor vehicle pose the requisite risk? What about residential trespass? Possession of a firearm? On each, federal courts are divided. As Justice Kagan noted, “Precious few crimes (of the thousands that fill the statute books) have an obvious, non-speculative — and therefore undisputed — ‘ordinary case.’” And as Justice Gorsuch explained in his concurrence, “Vague laws invite arbitrary power.” Ultimately, the court concluded, 16(b) is one such law.

The court’s decision is important because it serves to reinforce the growing notion that constitutional norms, such as due process, apply in the immigration context. It means that vague laws resulting in deportation — “a particularly severe penalty,” which may be of greater concern to a convicted noncitizen than “any potential jail sentence” — will not be tolerated.

In this particular political moment, as the Trump administration dramatically increases immigration enforcement efforts, apprehending and detaining unprecedented numbers of noncitizens, the lessons of Mr. Dimaya’s case came not a moment too soon.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.