Fifth Amendment - Due Process - Void-for-Vagueness Doctrine - Sessions V. Dimaya

Harvard Law Review, November 2018 | Go to article overview

Fifth Amendment - Due Process - Void-for-Vagueness Doctrine - Sessions V. Dimaya


Recent Terms have brought a sequence of cases challenging portions of the criminal code for unconstitutional vagueness. (1) Criminal defendants have sought relief from long sentences on the grounds that the statutory definitions of their crimes gave insufficient notice of their actions' consequences--notice the Due Process Clause requires--and therefore that these statutory definitions were void for vagueness. And the Court has shown itself willing to grant that relief. (2) Last Term, in Sessions v. Dimaya, (3) the Supreme Court took the next logical step, applying its vagueness analysis, set forth in Johnson v. United States, (4) to a provision of the criminal code incorporated into the Immigration and Nationality Act (5) (INA). Given the severe sanction the INA contemplates (deportation), the Court was right to apply Johnson. But the Court should limit its extension of Johnson to circumstances where the consequences are severe; to do so the Court ought to import the distinctions it has already drawn in the procedural due process realm. This will allow it to develop a determinate standard by which it can judge when applying Johnson is appropriate, and thus avoid needlessly encroaching on the civil code.

James Dimaya, a native of the Philippines, lawfully entered the United States in 1992 and lived in California as a legal permanent resident. (6) He was twice convicted of first-degree residential burglary, first in 2007, then again in 2009, and sentenced to a two-year prison term for each. (7) Under California law, burglary is defined as entering any of a list of dwellings "with intent to commit ... any felony." (8) In 2011, the Department of Homeland Security (DHS) initiated removal proceedings against Dimaya. (9) Under the INA, an alien is subject to removal if he is "convicted of an aggravated felony at any time after admission." (10) The statute defines "aggravated felony" by pointing to the criminal code, 18 U.S.C. [section] 16, and its definition of "crime of violence." (11) Under [section] 16(b), the "residual clause," "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" constitutes a crime of violence. (12) DHS sought Dimaya's removal under [section] 16(b), arguing burglary inherently involved substantial risk of physical force and thus was grounds for removal. (13)

The immigration judge (IJ) agreed, finding that California's burglary statute, which required entry into a residence, dealt with crimes that "by [their] very nature" likely create risk of violence. (14) Because the crime satisfied [section] 16(b), the IJ ordered Dimaya deported. (15) The Board of Immigration Appeals (BIA) affirmed. (16)

Dimaya appealed to the Ninth Circuit, arguing that the BIA had erred in classifying California burglary as a [section] 16(b) crime of violence. (17) But while his appeal was pending, the Supreme Court decided Johnson. (18) There, the Court addressed the Armed Career Criminal Act's (19) (ACCA) definition of "violent felony," which--like the statute at issue in Dimaya--included a residual clause, encompassing any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." (20) The Court held that this residual clause violated the Fifth Amendment's due process requirement by "den[ying] fair notice to defendants and invit[ing] arbitrary enforcement by judges." (21) It was unconstitutionally vague and thus void. (22) In light of the Court's holding in Johnson, the Ninth Circuit ordered supplemental briefing and arguments on the question of whether [section] 16(b), too, was unconstitutionally vague. (23)

The Ninth Circuit ultimately reversed the BIA. (24) Judge Reinhardt, (25) writing for the panel, first explained that both Ninth Circuit and Supreme Court precedent supported applying vagueness doctrine to deportation proceedings because of the "harsh consequences attached. …

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