In Sessions v. Dimaya, the Supreme Court confirmed what we already know: deportation is a “drastic measure, often amounting to lifelong banishment or exile.” Drawing upon the principle that all laws should be clear, the Court held that the definition of crime of violence found in 18 U.S.C. § 16(b) is unconstitutionally vague. The importance of this decision lies in the fact that a “crime of violence” is one way to classify a conviction as an aggravated felony, which will generally result in automatic deportation with no waiver available. To be clear, the immigration code contains a list of specific serious offenses that are aggravated felonies such as murder, rape, and other violent crimes–and the Court’s decision does nothing to alter that list. Dimaya addresses what was known as a residual, or catch-all, clause that used poorly-defined terms such as “substantial risk” to define crime of violence. The unfortunate result: across the country immigration judges and bureaucratic officials were left scratching their heads to figure out which crimes were crimes of violence. The ultimate result was the inconsistent application of the law, lots of confusion, litigation, like Dimaya—and tragically, many people being wrongly labeled, detained and deported.
There will be plenty of analysis of this decision, down to every sentence, citation, and footnote. But what are the immediate lessons for immigration attorneys? What are the implications for noncitizens who are, or have been, the victims of this now-unconstitutional section of the statute? For attorneys who practice in immigration court, we may have clients placed in removal proceedings on the sole basis of having committed what was previously characterized as a crime of violence and ultimately an aggravated felony. Now, under Dimaya they may no longer be deportable.
Another category of immigrants who may be positively impacted by Dimaya are people with strong family, employment, and community ties who may have been told they did not qualify for certain waivers such as cancellation of removal and faced certain banishment. But now they will at least able to present their cases to an immigration judge because their convictions may no longer bar them from relief. There are even immigrants whose lives are in danger if they return to their home countries who appeared to be ineligible for asylum before Dimaya because they were convicted of a crime like engaging in self-defense in a bar fight. They can now proceed and present their cases to an immigration judge. Beyond those currently facing removal, there are people who were already deported based on now-unconstitutional grounds who may be able to request a review or reopening of their cases.
The Court’s decision addresses the right of certain detained immigrants to request a hearing to request release from detention, offering the opportunity for someone to avoid indefinite detention that can stretch into months and sometimes years. Dimaya throws a lifeline to those deprived of their liberty based on a vague law that varied from one courtroom to another. In addition, Dimaya affects some immigrants hoping to adjust their status or even become U.S. citizens.
While there are already some outcries from restrictionists and anti-immigrant quarters, the truth is that this decision is one that should be embraced by anyone who believes our nation’s laws should be clear and apply in the same way to all. While finding common ground on immigration issues seems like a hard thing to do lately, this important Supreme Court decision provides an opportunity for us to avoid talking over each other and point out some common goals.
Due process, clarity, and fairness demand laws that everyone can understand. As Justice Gorsuch wrote in his concurrence, “A government of laws and not of men can never tolerate … any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it.” Such logic compelled Justice Gorsuch to join the four liberal justices, Kagan, Ginsberg, Breyer and Sotomayor in the majority holding. When the stakes are so high, and present the threat of deportation and permanent banishment applied in arbitrary and inconsistent ways, the Dimaya decision offers a welcome return to the rule of law and its consistent application nationwide.
Those of you interested in learning more about the intersection of immigration law and criminal law, several panels at the AILA Annual Conference June 13-16, 2018 will dive into this subject, including a panel with Mary Kramer, author of Immigration Consequences of Criminal Activity. And keep an eye out for more information on AILA’s page about this case.