Hope for the application of the Supreme Court’s decision in Dimaya regarding deportation for “violent crimes” to refugee cases
Written by: Michelle Cardona Vinasco, University of Minnesota
In April 2018 the U.S. Supreme Court in Sessions v. Dimaya determined that 18 U.S.C. § 16(b) defining "crime of violence" created too much unpredictability. This section of the Immigration and Nationality Act (INA) made immigrants convicted of violent crimes deportable, but this decision could lead to some changes in the INA's application.
Facts and Procedural Posture
This case arrived at the U.S. Supreme Court after the Ninth Circuit decided, on appeal, that the appellant's cancellation of removal proceedings should not have been denied, since the statute that made the crime of burglary an aggravated felony was unconstitutionally vague.
Appellant James Dimaya was a lawful permanent resident of the U.S. since 1992 who received two convictions for first-degree burglary in California. After the second conviction, the Department of Homeland Security (DHS) attempted to classify Dimaya as an aggravated felon in order to deport him. An immigration judge concluded and, on appeal, the Board of Immigration Appeals (BIA) affirmed, that a conviction under California's first-degree burglary statute qualified as a "crime of violence" under 18 U.S.C. § 16(b), thus permitting removal proceedings and denying relief. Dimaya then challenged the denial of canceling his removal and appealed the BIA decision to the Ninth Circuit. While his case was pending, the Supreme Court decided Johnson v. U.S. and concluded that a similar phrase in another U.S. statute - the Armed Career Criminal Act (ACCA) - that defined violent felony was unconstitutionally vague and therefore void. Based on that decision the Ninth Circuit similarly concluded that § 16(b) was unconstitutionally vague and the government appealed to the Supreme Court.
The Immigration and Nationality Act (INA) gives examples of what an "aggravated felony" is, and includes that it can be a "crime of violence" that has a term of imprisonment of at least one year; Mr. Dimaya received two-year sentences for each of the two burglary charges he was convicted for. When determining whether the crime in question falls within the definition of 18 U.S.C. § 16 a court must determine whether the nature of the offense poses the requisite risk of the use of force. The BIA concluded that first-degree burglary carries a substantial risk of use of force so as to qualify as a crime of violence under 18 U.S.C. § 16(b). The INA not only makes any alien convicted of an "aggravated felony" deportable but also makes them ineligible for relief such as cancellation of removal, as occurred with Mr. Dimaya. Cancellation of removal occurs when immigration authorities cancel the removal of a lawful permanent resident who satisfies the requirements of length of residency, good behavior, and exceptional hardship. See 8 U.S.C. § 1229b(b)(1). The denial of a request for cancellation of removal makes it nearly certain that any alien convicted of an aggravated felony will be deported. In a 5-4 decision, the Supreme Court affirmed the Ninth Circuit's conclusion that the denial of Mr. Dimaya's cancellation of removal was improper.
Like the Supreme Court had previously determined in Johnson v. U.S. that the residual clause of the Armed Career Criminal's Act (ACCA) was unconstitutionally vague the Supreme Court concluded in Dimaya that 18 USC § 16(b) that defined a crime of violence as including a felony that involves the substantial risk that physical force may be used in the course of committing the offense was also unconstitutionally vague.
Relevance and implications
One major way this decision benefits U.S. migrants is in having the potential to increase consistency. Since immigration law in the U.S. is a federal issue, but criminal law is state specific, the court determining that 16(b) is too broad limits some of the discretion courts have in classifying a state crime that is not violent, as a violent act. Thus, where acts which would not be classified as a crime of violence in one state, but may have been classified as such in immigration matters under 16(b) to make someone deportable may be reduced as a result of Dimaya. This broadening of criminal acts was not only inconsistently applied because of its broadness, but also unfair to migrants who already suffer large amounts of discretion on who is targeted, whether it be as a result of age group, location, or place of origin.
Another benefit resulting from this decision is the increase in predictability. Because the Supreme Court in part decided the constitutionality of the phrase in question in Dimaya based on the Fifth Amendment's guarantee of due process and the "prohibition of vagueness in criminal statutes" that the Supreme Court reiterated in Johnson, it reaffirmed and strengthened the requirement that penal statutes be written in a way that permits ordinary people to understand what type of conduct is prohibited. The Supreme Court's conclusion that this was not met in the definition of crimes of violence in 16(b) that could lead to deportation has potential to change deportation trends in the U.S. and to force changes in dialogue. To start with, a lot of the anti-immigrant rhetoric revolving around the deportation of undocumented persons has implied that those who are being deported are violent criminals. While that conversation is plagued by a variety of different issues, the Dimaya decision by the Supreme Court limiting what can be classified as a "violent crime" for deportation purposes may add to the discourse demonstrating what is wrong with the argument.
Another important implication of the Dimaya decision relates to a clarification made in Johnson. In the Johnson decision, the Supreme Court clarified that physical force means "force capable of causing physical pain or injury" and it applied this definition to the INA. The Supreme Court's application of this definition of physical force to the INA's section on crimes of violence, 18 U.S.C. § 16(b), should, in theory, reduce the number of deportations based on nonviolent crimes, which were previously able to result in deportation through the broader definitions of "aggravated felony" and "crime of violence."
This decision also holds importance when considering instances where a person may be justified in the use of force, such as in cases of self-defense. Under the law, as it was, there was the possibility that an alien who engaged in self-defense may have been found deportable as a result of engaging in an act that classified as an aggravated felony under the vagueness of the crime of violence definition of 18 U.S.C. § 16(b). Through declaring 18 U.S.C. § 16(b) unconstitutionally vague, this may limit instances such as the above.
A final important implication of the Dimaya decision is that courts may be able to apply its conclusion not only to lawful permanent residents, like Mr. Dimaya, but also to other types of immigrants, to refugees, and to asylum seekers. This is because an alien is defined as any person not a citizen or national of the US in 8 U.S.C. § 1101(a)(3) and a refugee is any person who is outside the country of their nationality and who is unwilling or unable to return to and to avail him / herself to the protection of that country because of a well-founded fear of persecution on account of the five convention grounds. The Dimaya decision is important for refugees and for refugees who become lawful permanent residents. Under to 8 U.S.C. § 1227(a)(2)(A)(iii) an alien who enters as a refugee and then becomes a lawful permanent resident pursuant to 8 U.S.C. § 1159(a) and is then convicted of an aggravated felony may be placed into removal proceedings, but if Dimaya is applicable to refugees, as it should be based on the definition of "alien", then the types of crimes which will result in deportation should decrease and exclude nonviolent crimes. Original sentence: Additionally, a deportable alien is any alien who can be deported after receiving either multiple criminal convictions or an aggravated felony conviction, if they are convicted of a crime involving moral turpitude that has a sentence of one year or longer. If a refugee qualifies as a deportable alien, then the Supreme Court's decision in Dimaya restricting what constitutes an aggravated felony should extend to actions by refugees.
Since the Supreme Court's decision in Dimaya numerous U.S. circuit courts and courts of appeal have remanded cases for review in consideration of the decision. The results of these remanded cases will be telling in relation to U.S. immigration law, but of interest will also be whether the decision is applied outside of the U.S. immigration context to asylum and refugee law, which remains to be seen.