Defining Violence: the Vagueness Doctrine in Criminal Removal Law

• Publication year: 2017
• Author: By J. Domenic Martini

DEFINING VIOLENCE: THE VAGUENESS DOCTRINE IN CRIMINAL REMOVAL LAW

By J. Domenic Martini^*

Introduction

Immigration law stands at the center of the current American political conversation. While immigration law may appear to be merely arrests and removals, the removal process holds difficult complexities that implicate lesser-known constitutional doctrines and reach the heart of due process.

Under the Immigration and Nationality Act (INA), the removal process begins with apprehension of the person and a determination of ineligibility into the United States.¹ The Department of Homeland Security (DHS) must then make an administrative arrest that officially charges the person with removal as justified by the INA.² An Immigration Judge then makes the final determination, subject to an appeal to the Board of Immigration Appeals (BIA) and the Circuit Court of Appeals that has jurisdiction.³ At each step in this process, an alien charged with removability is guaranteed due process of law by the Constitution.⁴

The removal process often intertwines with criminal law to the point where the two are inseparable. The Ninth Circuit's 2015 decision in Dimaya v. Lynch shows just how attenuated distinctions between these two areas of law can be.⁵ At issue was the definition of violence.

Dimaya held that the statutory definition of crime of violence was unconstitutionally vague.⁶ The vagueness doctrine states that a person has the due process right to fair notice that the law forbids an action.⁷ Thus, vague statutes are held unconstitutional because they do not provide sufficient notice that certain conduct has legal consequences.⁸ The Dimaya holding had broad consequences in the Ninth Circuit because of the number of immigration cases the Circuit hears each year.⁹

The Government appealed the holding to the Supreme Court, setting the national stage for a decision on the INA's definition of crime of violence. The Supreme Court's pending decision will affect immigration cases across the country because the federal government often uses the crime of violence definition as a catchall to warrant removal of an alien for a state criminal conviction. If the Supreme Court holds crime of violence unconstitutional, the government will have less leeway to place convictions into this catchall and remove criminals from the United States. The decision could also implicate other provisions of the INA, and lead to vagueness challenges to other federal laws that incorporate the crime of violence definition. This article first discusses the vagueness doctrine that stems from the Due Process Clause of the Fifth Amendment. Second, it explains the Dimaya case, which held the INA's definition of a crime of violence unconstitutionally vague,¹⁰ and narrowed the grounds on which criminals are subject to removal. Finally, this article concludes by analyzing the effects that the Supreme Court's ruling on Dimaya will have on criminal removal law in both the Ninth Circuit and the rest of the United States.

The Vagueness Doctrine

The Fifth Amendment of the United States Constitution protects the due process rights of criminal defendants.¹¹ The Supreme Court has long recognized that due process rights includes the right to notice that certain conduct is forbidden.¹² Statutes must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited."¹³ The vagueness doctrine also requires that statutes establish guidelines for those enforcing the law to ensure it is not arbitrarily enforced.¹⁴ As Justice Sutherland put it, "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential due process of law."¹⁵ The Supreme Court has held that aliens have due process rights in removal proceedings.¹⁶ It has also applied the vagueness doctrine to removal proceedings.¹⁷ Unconstitutional vagueness in criminal removal law was the issue before the Ninth Circuit in Dimaya v. Lynch.¹⁸

The Dimaya Case

James Garcia Dimaya was a lawful permanent resident who was subject to removal from the United States because of two first degree burglary convictions in California.¹⁹

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First degree burglary is considered an aggravated felony because it is a crime of violence, and an aggravated felony conviction triggers removal under the INA.²⁰ The Board of Immigration Appeals upheld Dimaya's removal, and Dimaya subsequently appealed to the Ninth Circuit.²¹ Dimaya challenged the definition of crime of violence as unconstitutionally vague.²²

The INA defines an aggravated felony as "a crime of violence...for which the term of imprisonment [is] at least one year."²³ The statute then refers to Title 18 of the U.S. Code for the definition of crime of violence, which it defines as "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."²⁴ The Ninth Circuit held that this definition was unconstitutionally vague.²⁵

The Ninth Circuit based its decision on the Supreme Court's reasoning in Johnson v. United States, decided earlier that year.²⁶ At issue in Johnson was the Armed Career Criminal Act (ACCA), which defined violent felony in language similar to the INA.²⁷ The ACCA defined a violent felony as a felony that "involves conduct that presents a serious potential risk of physical injury to another."²⁸ In an opinion by Justice Scalia, the Court held this residual clause unconstitutionally vague for two reasons.²⁹ First, the statute left uncertainty in estimating the risk of physical injury in an ordinary crime.³⁰ Second, the statute did not state how much risk was required to reach the level of violent felony.³¹ The Court found these estimations too...