May 14, 2018

Supreme Court Update: What is A Crime of Violence? A review of Sessions v. Dimaya

By: Anish Parikh

If you have a temporary visa or are a lawful permanent resident, you are probably aware of the effects that a criminal conviction could have on your ability to stay in the United States. A criminal conviction—even by green card holders, can be grounds for deportation if a certain type of crime is committed which includes some acts classified as “crimes of violence”.

The law doesn’t state which specific crimes constitute “crimes of violence”, but says that “crimes of violence” are offenses that involve trying to use, threatening to use, or actually using physical force against another person or their property. A “crime of violence” could also be any offense that is a felony and, while committing that felony, the offender has a good chance of using physical force against another person or their property. Matching those federal guidelines to state criminal laws has been cause for frustration and confusion at times to non-citizen criminal defendants, their defense lawyers, and their immigration lawyers for years. But what crimes, exactly, can cause en a lawful permanent resident to be stripped of their green card status and deported? The Supreme Court addressed that question, in part, last month in a case titled Sessions, Attorney General v. Dimaya. The Supreme Court issued its ruling on April 17, 2018, upholding the Ninth Circuit’s decision that 18 U.S.C. sec. 16(b), a statute which defines “aggravated felonies” for immigration purposes, was unconstitutionally vague.

In Sessions, the Respondent James Dimaya had legally immigrated to the United States from the Philippines in the early 1990s and received lawful permanent residency status. He then committed two burglaries and was twice convicted under the State of California’s residential burglary law. However, California’s burglary law is so broad that it doesn’t necessarily require actual entry into a house—a dishonest door-to-door sales representative could, therefore, be convicted of residential burglary under this law. Therefore, if one is convicted under that state’s law it would be unclear whether the crime was aggravated or not. Subsequent to his convictions for burglary the Department of Homeland Security placed Mr. Dimaya in deportation proceedings reasoning that he had committed an aggravated felony, or “crime of violence”, and therefore could be deported under residual clause contained in the Immigration and Nationality Act clause of 18 U.S.C sec. 16(b). The immigration court then had to decide whether Mr. Dimaya’s robbery convictions were considered aggravated felonies.

One problem with the current statutory definition of an aggravated felony, or “crime of violence” is that it is vague. Our laws must be specific, or residents subject to those laws and their implications will not be able to ascertain the repercussions of their own actions. Think about a law that says “No Vehicles in the Park.” There’s a good chance driving a car into the park would be against the law. On the other hand, walking into the park is probably okay. But if you bring your bicycle into the park, are you breaking the law? What about on a motor scooter? While lawmakers of course strive for fairness in applicability, often times definitions are unclear and difficult to interpret. This often results in an unfair predicament for both citizens and non-citizens when they subject to a law for which they are unsure of its definition and applications.

We’re still stuck with our main question – were Mr. Dimaya’s robbery convictions, which could be violent or could have happened without violence— enough to be “crimes of violence” and therefore be grounds for deportation? A criminal conviction usually only states the act you were convicted of and the law you were convicted under, there is no special description area for your unique circumstances or the facts of each case. Although immigration courts in the past have looked into the language of state laws and compared them to this federal standard, they’ve often reached different conclusions. This means that a court in Chicago could say a burglary such as the one committed by Mr. Dimaya was a not crime of violence, but a court in Los Angeles could decide otherwise. Each court would be applying a different standard resulting in two different outcomes of whether someone like Mr. Dimaya could have stayed or had to be deported. Because the aggravated felony law, as it pertains to immigration proceedings, is so broad and arguably vague, either court would be correct.

There are several permanent residents encountering this same issue. The Supreme Court recognized the confusion with matching so many state-level laws to the federal “crime of violence” standard that it recently addressed it. The court opined that because immigration courts could rule either way based upon the application of a particular state’s law, the Supreme Court decided to strike down the entire “crime of violence” standard as too vague. It was further determined that this vagueness affected the standards of review when extended to deportation proceedings. The court ultimately ruled that ALL laws threatening life, liberty, or property should have to be strict enough to be understood—not just criminal laws. The impact of this ruling is an important step in recognizing the rights of non-citizens, and increases the standards for deporting lawful permanent residents. President Trump tweeted shortly after the decision, stating “Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons.” As such, the long-term impact of the court’s ruling will be uncertain for some time.