Is 18 U.S.C. § 16(b), as incorporated into a civil deportation statute, unconstitutionally vague?
The Supreme Court will decide whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions regarding deportation, is unconstitutionally vague. In doing so, the Court will also decide whether it should assess the constitutionality of this provision under the vagueness standard applicable to criminal statutes or under a less strict standard. Attorney General Jeff Sessions argues that the Court should apply a less strict vagueness standard to § 16(b) in this case because of its civil rather than criminal context. Sessions also argues that § 16(b) is not unconstitutionally vague under the proposed lower standard because its language is plainly intelligible. James Garcia Dimaya contends, however, that the Court should apply the vagueness standard applicable to criminal statutes in this case because the Court applied this standard to a deportation statute in Jordan v. De George, 341 U.S. 223 (1951). Dimaya also asserts that § 16(b) is unconstitutionally vague because it shares the same features that made a provision unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015). The outcome of this case will have consequences for the validity of § 16(b) as it is incorporated into other criminal and civil laws and for the government’s ability to remove some aliens from the United States.
Questions as Framed for the Court by the Parties
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.
Respondent James Garcia Dimaya, a citizen of the Philippines, immigrated to the United States as a lawful permanent resident in 1992 at the age of thirteen. Since entering the country, Dimaya has attended high school and community college as well as held several jobs. On two separate occasions, in 2007 and 2009, Dimaya was convicted in California of first-degree residential burglary and was sentenced to two years in prison.
In 2010, U.S. Attorney General Lynch brought removal proceedings against Dimaya citing 8 U.S.C. § 1227(a)(2)(A)(iii), which allows for the deportation of non-citizens who are convicted of aggravated felonies. Lynch claimed that, inter alia, both of Dimaya’s convictions qualified as aggravated felonies because first-degree burglary in California is a “crime of violence” under the Immigration and Nationality Act (“INA”), which adopts a definition for “crime of violence” corresponding to 18 U.S.C. § 16. The immigration judge agreed with Lynch that Dimaya’s convictions for first-degree burglary satisfied the requirements for “crime of violence,” holding that Dimaya could be subject to removal due to the inherently violent nature of the offense and the dual sentences of over a year in prison. After the Board of Immigration Appeals rejected his appeal, Dimaya filed a petition in the United States Court of Appeals for the Ninth Circuit.
While Dimaya’s petition was pending in the Ninth Circuit, the United States Supreme Court ruled in the case of Johnson v. United States, 135 S. Ct. 2551 (2015), that the definition of “crime of violence” under the Armed Career Criminal Act's residual clause, which has similarities to that of § 16(b), was void for vagueness. In response to the holding in Johnson, the Ninth Circuit concluded that § 16(b)’s definition of “crime of violence” was likewise unconstitutionally vague when used to determine whether prior convictions qualify as aggravated felonies for immigration removal proceedings. In its application of the Due Process Clause’s vagueness doctrine, the Ninth Circuit reasoned that the “grave nature” of removal proceedings requires that the court apply a vagueness standard for deportation proceedings that is applicable to the standard used during criminal proceedings. The Ninth Circuit concluded that the “substantial risk” requirement in § 16(b) is “indetermina[te]” as to how a court should measure risk and how much risk is required to categorize a crime as a “crime of violence.” The Ninth Circuit remanded Dimaya’s removal proceeding to the Board of Immigration Appeals for analysis on the other claims. Lynch appealed the Ninth’s Circuit’s decision, and the Supreme Court granted the petition for certiorari on September 29, 2016. The Court originally heard arguments in January of 2017; but, rather than issuing a ruling in June of that year, it ordered re-argument this term on October 2, 2017.
Note: Because this case was briefed and argued once by one administration but is being re-argued by another without additional briefing, this Preview will refer to the Appellant Attorney General simply as "the government" throughout.
ARE CIVIL STATUTES GOVERNING DEPORTATION SUBJECT TO THE STANDARD OF VAGUENESS APPLICABLE TO CRIMINAL LAWS?
The government argues that deportation laws, which are civil rather than criminal matters, are not subject to the vagueness doctrine as it is applied to criminal laws and are instead subject to a less strict version of the doctrine. The government notes that since the Court first struck down a statute under the vagueness doctrine, the Court has described the doctrine as a limitation on criminal statutes. Further, the government asserts that while the Court has analyzed whether civil statutes fail under the vagueness doctrine, these cases, including one challenging an immigration statute, reflect the Court’s understanding that the doctrine is less strict in the context of civil cases than in criminal cases. The Court’s decision in Jordan v. De George, 341 U.S. 223 (1951), is consistent with and reinforces this distinction between the vagueness doctrine in civil and criminal cases. While the Court in that case analyzed an immigration statute under the standard of vagueness applicable to criminal laws, the government asserts that the Court did not hold that the same standard applies to all civil deportation statutes. It also contends that subjecting civil deportation statutes to a less strict vagueness standard still comports with the due process concerns of the vagueness doctrine—providing fair notice of the punishable conduct and avoiding arbitrary enforcement. The government argues that because the Court has held that Congress may retroactively subject an alien to removal based on a past criminal conviction, an alien has no constitutional expectation of fair notice of the conduct for which he or she may be removed. Further, the government asserts that the framework under which the executive branch administers the Immigration and Nationality Act reduces the potential for arbitrary interpretation or enforcement.
The government then contends that though the Court has not yet established a vagueness standard for civil cases, its decisions suggest a general principle that is appropriate for deportation proceedings. Under this principle, the Court should consider whether the statute at issue is so unintelligible that it is not a rule at all. It then argues that 18 U.S.C. § 16(b) is not unconstitutionally vague under this standard because its language is plainly intelligible, as shown by the fact that lower courts have applied it without concern for over three decades. Further, the government contends that the Court should apply this standard because § 16(b) operates as an element of a civil rather than criminal provision in this case.
Dimaya, however, argues that the criminal vagueness standard applies in the deportation context. In support of this argument, Dimaya looks to Jordan, in which the Court applied the criminal vagueness standard to a deportation statute because of the grave nature of deportation. Dimaya notes that every circuit court to address this issue has followed Jordan. Dimaya further argues that this is the correct vagueness standard in this case because though deportation is a civil matter, § 16(b) is a criminal statute, is part of the criminal code, and has criminal applications. Dimaya also asserts that deportation laws have severe consequences and punitive characteristics that put them on par with criminal statutes. Further, Dimaya claims that the Court rejects drawing a sharp line between vagueness standards for civil and criminal statutes and instead focuses on the severity of the consequences of any vagueness in the statute when determining the standard to apply. Dimaya also asserts that vagueness in deportation statues raises the same due process concerns that underlie vagueness in the criminal context. Dimaya alleges that noncitizens should have fair notice as to which offenses will result in mandatory, permanent deportation and that arbitrary enforcement is a concern because though the Board of Immigration Appeals reviews immigration cases, courts do not defer to the Board’s interpretation of criminal provisions, and Board decisions themselves are often conflicting.
Dimaya then argues that the Court should not overrule Jordan and apply the government's suggested, lesser version of the vagueness standard because if the Court did so in this case, § 16(b) could be valid in deportation proceedings but invalid in criminal proceedings. Though Dimaya concedes that less punitive civil statutes can be subject to a less strict vagueness standard, Dimaya also contends that a single statute with civil and criminal applications, like § 16(b), is either vague or not across all contexts. In support, Dimaya notes that the Court treats civil and criminal applications of a statute equally when applying the lenity doctrine, from which the vagueness doctrine evolved.
IS 18 U.S.C. § 16(b) UNCONSTITUTIONALLY VAGUE UNDER THE CRIMINAL VAGUENESS STANDARD?
Though the government argues that the Court should not apply the criminal vagueness standard to the deportation statute at issue in this case, it also argues that if the Court does decide to apply this standard, § 16(b) is not unconstitutionally vague under it. It contends that three textual features of § 16(b) make its application more precise, predictable, and administrable than the Armed Career Criminal Act (“ACCA”) residual clause that the Court found to be unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015). First, it claims that § 16(b) does not ask courts to imagine risks potentially arising after an offense is completed, a critical aspect of the Court’s vagueness holding in Johnson. Second, it asserts that § 16(b)’s requirement of a risk that physical force may be used during the course of committing an offense is more concrete than the ACCA residual clause’s reference to any conduct that could result in physical injury. Third, it claims that because § 16(b) does not contain a list of example crimes, courts applying it will not have to reconcile the different risks entailed in the examples, a task that the Johnson Court found to generate confusion. The government also argues that § 16(b)’s requirement of a categorical rather than case-specific consideration of the substantial risk of the use of force does not make it unconstitutionally vague because the term “substantial risk” commonly appears in the law, and the requirement does not violate due process.Lastly, the government claims that § 16(b) has not produced interpretative confusion in the courts, unlike ACCA’s residual clause.
Dimaya contends, however, that § 16(b) is unconstitutionally vague under the criminal vagueness standard because it has the same features that made the ACCA residual clause unconstitutionally vague in Johnson—it requires a determination of what kind of conduct the ordinary case of a crime involves, which is then assessed under an “imprecise” risk standard. Dimaya then notes that in Johnson, the government recognized that § 16(b) is equally susceptible to the vagueness objections to the ACCA residual clause and argues that the government’s new position on § 16(b) in this case lacks merit. Responding to the government's claim of three textual differences between the two statutes, Dimaya first counters that § 16(b)’s “in the course of committing the offense” language does not provide more clarity because the Court has rejected the interpretation that this language creates a temporal restriction on a court’s analysis under it. Dimaya then contends that “physical force” in § 16(b) is at least as vague as “physical injury” in the ACCA residual clause because the Court often treats the terms interchangeably, and Dimaya also argues that “force” is in fact more vague because it may “come and go without a trace” while an injury necessarily leaves an observable condition. Dimaya also asserts that § 16(b)’s lack of specific examples makes it more vague than the ACCA residual clause because this makes it an even broader provision. Lastly, Dimaya claims that § 16(b) has generated substantial confusion and supports this claim by noting the different approaches courts have taken to imagining what the hypothetical ordinary case of a car burglary, statutory rape, and evading arrest looks like. Dimaya also notes that courts have treated the two provisions and the interpretive confusion they create as analogous, applying ACCA cases to § 16(b) cases and vice versa.
RISK OF ARBITRARILY APPLYING § 16(b)
The government argues that the core concern of the vagueness doctrine, namely “to avoid ‘arbitrary enforcement’ of criminal laws,” does not apply with the same force in civil immigration proceedings as it does in criminal proceedings. It contends that immigration proceedings are unique as they involve matters of foreign affairs and national security, areas in which the executive branch has significant oversight. Likewise, it argues that Congress has granted “broad” powers to the executive branch for the administration of deportation proceedings under the Immigration and Nationality Act (“INA”). Thus, the government contends that imposing a more “rigid” interpretation of the vagueness doctrine, comparable to that of criminal proceedings, would go against this power and conflict with the discretion that the Attorney General exercises to maintain consistent interpretation and enforcement of the INA.
In contrast, Dimaya argues that the vague language of 18 U.S.C. § 16(b) makes it impossible to apply the definition of “crime of violence” consistently among federal courts. Dimaya notes that federal courts are split on what qualifies as “substantial risk” under § 16(b) and, therefore, disagree on what types of crimes qualify as “crimes of violence.” The Retired Article III judges, in support of Dimaya, contend that the application of § 16(b) in its current form requires that federal judges base their “enormously consequential” removal decisions on an arbitrary determination under the “ordinary case” approach that is ultimately hypothetical and based on neither the case’s concrete facts nor the judge’s personal experience. The Retired Article III judges further maintain that any judge hearing a removal proceeding, whether it be an immigration judge or an Article III judge, is “exceedingly unlikely” to understand the nuances of the state criminal code applicable to determining whether the crime in question involved a “substantial risk” as to make it a “crime of violence.” As a result, the National Immigration Project of the National Lawyers Guild, in support of Dimaya, concludes that the difficulty in consistently applying § 16(b) has created “profound confusion” resulting in indeterminate decisions, a lack of fair notice, and an unconstitutionally arbitrary application of inconsistent standards.
EFFECT ON FELONY REMOVAL GROUNDS FOR NONCITIZENS IN DEPORTATION PROCEEDINGS
The government argues that construing § 16(b) as void for vagueness would adversely affect other immigration statutes. It reasons that limiting the extent to which a judge could find an aggravated felony could possibly allow “dangerous alien criminals” to bypass some of the restrictions enacted to maintain public safety. It contends that immigration officers should be able to immediately remove noncitizens who commit certain serious offenses, such kidnapping or sexual battery, without discretionary relief. Additionally, the government maintains that finding § 16(b) as unconstitutionally void would question the application of 8 U.S.C. § 1227(a)(2)(E)(i), which categorizes non-citizen domestic abuse as a “crime of violence” regardless of the length of the non-citizen’s sentence.
Dimaya argues that the amount of process that non-citizens receive during removal proceedings is directly tied to how the immigration officer initially reviewing the case interprets § 16(b). The National Immigration Law Center, in support of Dimaya, refers to the Supreme Court’s decision in Galvan v. Press, 347 U.S. 522 (1954), to argue that non-citizens, as a part of the “American community,” are guaranteed the protection of “life, liberty, and property under the Due Process Clause as is afforded to a citizen.” . Dimaya contends that creating a less arbitrary removal proceeding by finding § 16(b) unconstitutionally vague would have only a minimal impact on the government’s ability to remove “dangerous criminal aliens” from the United States. Dimaya reasons that the government can still initiate removal proceedings in cases where there is not an aggravated felony. The National Immigration Project of the National Lawyers Guild, in support of Dimaya, argues that even if the government concludes that a non-citizen is deportable, the non-citizen should be given fair notice and the chance to fight the government’s decision under a set, non-arbitrary interpretation of § 16(b).
- Bob Egelko, US High Court to Hear Bay Area Case over Deportation Law, SFGATE (Sept. 29, 2016).
- Allissa Wickham, High Court to Hear Whether ‘Crime of Violence’ Too Vague, Law 360 (Sept. 29, 2016).