Published April 24, 2018
Last week, the U.S. Supreme Court, in a 5 to 4 decision struck down a significant portion of a federal statute exposing foreign nationals to deportation on the basis of having committed a “crime of violence”. The court ruled it incorporates too vague a definition and therefore violates the Due Process clause of the U.S. Constitution’s Fifth Amendment. The case – Sessions v. Dimaya – involves the reversal of a deportation order against a long time U.S. lawful resident from the Philippines who in 2007 and 2009 was convicted of residential burglary in California.
A “crime of violence” basis of deportation is just one among dozens Congress has established and made available to law enforcement to facilitate a foreign national’s deportation. In the context of this case, the “crime of violence” category is part of the “aggravated felony” basis of deportation and forces the players in the immigration justice system – especially judges, to engage in fairly complicated mental gymnastics in order to reach the appropriate legal conclusion. According to the Supreme Court though, Congress cast too broad of a net in enacting a basis of deportation that employed overly general and inclusive language. Such general language, according to the court, fails to provide prospective deportees and their legal counsel sufficient notice of the type of conviction that might expose them to permanent banishment from the U.S.
Specifically, the Supreme Court found problematic the currently employed legal definition of “crime of violence” i.e. a felony involving the “substantial risk” that physical force might be used while the violation is being committed. In confirming its agreement with a previous lower court decision, the court ruled as legally invalid the directive requiring courts to hypothesize about the kind of facts and criminal action that would constitute an “ordinary” case, and without clear instructions how to “estimate the risk posed by the crime” and “what threshold level of risk made any given crime a ‘violent felony.’” According to the Supreme Court, prior to this new ruling, courts across the country were forced to engage in too speculative an analysis in their decision making processes, leading to inconsistent interpretations.
Notably, and likely to the surprise of the Trump administration, Justice Neil Gorsuch, a Trump nominee and the most recent addition to the Supreme Court sided with the court’s most liberal members to support the decision, although he filed a separate concurring opinion. This ruling does not stop the federal government from seeking deportation of criminal actors they might have previously sought to deport under the crime of violence section. Rather, for now, ICE attorneys will have to find a different deportation basis upon which to prosecute and Congress will be forced to revisit their statutory creation and refine their language to address the Supreme Court’s more than legitimate concerns.
PUBLISHED April 24, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois