In this special two-part Think Immigration blog post, Mary Kramer, author of Immigration Consequences of Criminal Activity:  A Guide to Representing Foreign Born Defendants, is joined by Michael Vastine and Sui Chung, co-authors of AILA’s upcoming book, Winning on Paper. The trio attended the oral arguments Monday and reported back the following (see below the post for our new video featuring Mary and Michael as well). Read Part 2 here:

Batter Up!  October 2nd and 3rd mark the beginning of the Supreme Court’s fall argument calendar and it’s an important week for immigration lawyers.  Batting lead-off this Monday morning was Sessions v. Dimaya, which asks whether the definition of “crime of violence” at 18 U.S.C. § 16(b) as it applies to the aggravated felony definition (and domestic violence charge of deportability) is void for vagueness. In a criminal case decided two years ago, Johnson v. United States, the late Justice Scalia wrote that the following phrase is unconstitutionally void for vagueness:  “any felony that involves conduct that presents a serious potential risk of physical injury to another.”  And truly, does anyone really know what that means?

Our immigration law contains a similar definition, the so-called “crime of violence” provision at 18 U.S.C. § 16(b).  Following Johnson, a few circuits threw out aggravated felony charges based on 18 U.S.C. § 16(b) because, well, no one really knows what it means, and the Johnson court had found that the historic “ordinary person” test was too subjective and unpredictable.  After all, consider this phrase from the BIA’s decision in Matter of Francisco-Alonzo defining crime of violence:  “whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the ordinary case.”  Okay…so, conduct that invites violence is a pretty broad concept, and unfortunately, depends upon the various opinions of a myriad of 330 or so immigration judges across the country.  (And we all know how even-handed and consistent they are.)

The argument on Monday was actually a re-run, as an eight-person court heard argument last term and could not decide ball or strike.  Here’s the takeaway from today:  New to the field Justice Neil Gorsuch was the star of the game and we wouldn’t be surprised if he pens the ultimate decision.  For Justice Gorsuch, the issue is separation of powers:  the abdication of Congressional authority to “low level officers” (e.g. Immigration and Customs Enforcement (ICE) or immigration judges) to decide whether a particular crime is likely to result in an act of violence.  Further, if Congress didn’t say what the statute meant, the Court shouldn’t impose its own view.

To answer this question, the Court must decide if the “void for vagueness” doctrine applies in a civil immigration context, or if the concept is reserved solely for criminal law, where Sixth Amendment rights clearly attach.  According to today’s argument, the standard for that question lies in the severity of the consequence, and lifetime banishment is a pretty tough consequence, perhaps even more so than punishment under criminal law.  The best authority for application of criminal law protections to immigration law lies in Padilla v. Kentucky, wherein the Supreme Court ruled that Sixth Amendment rights apply to immigrants facing deportation.  Of course, the Court also decided Jae Lee v. United States last term, in which the Court observed that lifetime banishment from the United States was such a heavy sanction that an immigrant defendant could reasonably risk a lengthy jail sentence if it meant avoiding deportation.   As a counterpoint, Justice Alito questioned whether immigration was distinguishable and should not borrow from criminal law in a literal manner, comparing “the void for vagueness” objection at issue here to a civil matter deserving deference, like a state barring professional licenses for persons with certain objectionable bad conduct.  If the Court leans toward the former (that the sanction is comparable to criminal punishment) over the latter (it does not), the immigrant will win.

Dimaya’s counsel made an effective point that the court must follow Johnson and reject 18 U.S.C. 16(b) in the immigration context, in order to avoid arbitrary outcomes.  Counsel described a likely scenario, where – if 16(b) is upheld as constitutional – an immigrant is deported as an “aggravated felon” for a crime that could have triggered risk of danger under the “ordinary case” test.  That same immigrant, if they illegally reentered the U.S. post-deportation (as often happens), would be subject to criminal charges that lead to enhanced sentencing if they had committed an “aggravated felony.”  However, that same person could not be prosecuted as such because 16(b) has been found unconstitutional in the criminal context, notwithstanding the fact that they had been deported because of 16(b).   Complicated, but not logical.

And tomorrow, October 3, will be another busy day, when the court hears a second round of oral argument in Jennings v. Rodriguez.  While Dimaya involves constitutional due process and whether a law should be struck as void for vagueness, Jennings asks whether it is constitutionally—ah…troublesome?—to hold noncitizens indefinitely without even an objective bond hearing to determine the immigrant’s dangerousness and likelihood of flight.  The initial argument was heard in December 2016, but then the Court ordered supplemental briefing to include important nuances such as IJ jurisdiction over arriving aliens’ custody (arriving aliens are subject to mandatory detention even after establishing they have due process rights in the asylum context, for example), the terrorism grounds, and the burden of proof.

In the Ninth and Second circuits, a non-immigrant who ostensibly falls under INA § 236(c)’s provisions is entitled to a bond hearing once their detention reaches the six-month mark and the burden of proof against release from custody lies with the government.  In other circuits, there is no bright-line six-month demarcation:  it’s a case-by-case basis and a habeas order, achieved via a suit in federal district court is typically required.  That’s a lot of work.

Going into extra innings, the immigrant community is in pretty good shape on Jennings, as every circuit acknowledges civil detention cannot just go on for, well, forever. The Court’s task is to determine whether six months is an appropriate line of demarcation, whether this applies to arriving aliens under § 1225(b) (INA § 235(b)) and which party has the burden of proof when that all-important bond hearing rolls around.

Let’s see what tomorrow brings…


Want to know more? You’re in luck! Mary Kramer and Michael Vastine reported on these two cases from the AILA studio on October 3 –  watch this video to hear more about how the arguments went and what these two cases mean for immigration attorneys:

And Mary will be joining other expert AILA members in an upcoming audio seminar, The Categorical Approach Across Jurisdictions: A Step-by-Step Approach. The audio seminar will take place October 17 and is an ideal way to learn the practical application of the modified categorical approach, as well as how recent court decisions have shaped defense strategies.