JEFFERSON B. SESSIONS, III v. JAMES GARCIA DIMAYA
Supreme Court of the United States, Kagan, April 17, 2018,
Crime of Violence – The residual clause of the term “crime of violence” found in 18 USC 16 is unconstitutionally vague
(Concur in part – Gorsuch – Nothing reason to hold deportation to a higher standard of review. Also, WTF is Thomas thinking supporting the “Alien and Sedition Acts”?)
(Dissent – Thomas – If the “ordinary case” test causes a problem, why not just change it? Also, void for vagueness isn’t a due-process issue)
(JUSTICE KAGAN delivered the opinion of the Court with respect to Parts I, III, IV–B, and V
Split majority/plurality opinion, plurality only on: deportation-law to be held to as strict a standard as criminal-law (Part II) and attacking Thomas’ dissent (Part IV-A))
Facts:
Dimaya came into the United States legally in 1992.
Since that time, however, he was convicted twice of California’s 1st-degree burglary (Under California law, “every burglary of an inhabited dwelling house… is burglary of the first degree.”)
Immigration officials moved to have Dimaya deported as an “aggravated felon” due to commission of a “crime of violence.”
Dimaya appealed, arguing that burglary is not a “crime of violence.”
When the 9th Circuit found that burglary was not a crime of violence, the Government requested review by the Supreme Court.
Held: The Supreme Court found that the definition of “crime of violence” under federal law was too vague to meet Due Process requirements.
Deportation – Aggravated Felony – Any alien who is convicted of an aggravated felony at any time after admission is deportable.
Deportation – Aggravated Felony – Aggravated felony includes conviction of a “crime of violence” with a sentence of at least one year
Crime of Violence – “Crime of Violence” is defined to include:
(a) 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
(b) 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.
Crime of Violence – The first section (‘a’) is known as the “elements” clause because it includes any offense that has as an element the use, attempted use, or threatened use of physical force.
Crime of Violence – The second section (‘b’) is known as the “residual” clause because it catches some of the other “violent” crimes that don’t necessarily require physical force but are nevertheless frequently violent. These crimes involve a “substantial risk” that physical force will be used.
Crime of Violence – Residual Clause – To decide whether a crime involves a “substantial risk” of physical force, courts use the “categorical approach.” This involves looking at an ordinary example of the crime in question and deciding whether that ordinary example carries with it a substantial risk of violence. The actual facts are not used to decide this, just the “ordinary” facts that would be involved in committing the crime.
From the Case: The “ordinary case” is difficult to pin down. “How does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?”
Crime of Violence – Void for Vagueness- The “residual clause” of the definition of Crime of Violence produces “more unpredictability and arbitrariness than the Due Process Clause tolerates.”