Subsection of Crime of Violence Definition Declared Unconstitutional by the 9th Circuit Court of Appeals

In an important decision issued this week, the 9th Circuit Court of Appeals held that subsection 16(b) of the United States Code, Title 18, is unconstitutionally vague in the context of the Immigration and Nationality Act (“INA”). Dimaya v. Lynch, No. 11-71307, slip op. (9th Cir. Oct. 19, 2015). This subsection is incorporated into the definition of a crime of violence, and also domestic violence, in the INA and will open many doors for new arguments in immigration court and also before U.S. Citizenship and Immigration Services.

The petitioner in this case was a lawful permanent resident, twice convicted of first-degree burglary in violation of California Penal Code section 459. After his second conviction, the Department of Homeland Security charged him as removable for having been convicted of a crime of violence – an aggravated felony as defined in section 101(a)(43)(F) of the INA.

The Court’s decision in Dimaya v. Lynch succeeded Johnson v. United States, 135 S. Ct. 2551 (2105) – a United States Supreme Court decision, which held that the Armed Career Criminal Act’s (“ACCA”) definition of a “violent felony” is unconstitutionally vague. The ACCA defines a violent felony as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. section 924(e)(2)(B)(ii). This language is strikingly similar to the INA’s definition of a crime of violence. The INA defines a crime of violence by referencing 18 U.S.C. section 16. Subsection 16(b), at issue here, requires that any crime of violence must “involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The Court compared the two statutory provisions and relied heavily on the Johnson decision to ultimately hold that section 16(b) is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause. The Due Process Clause requires that a penal statute define the criminal offense with enough particularity that ordinary people can understand what conduct the law prohibits. The overriding problem with section 16(b) in the immigration context is that it requires courts to determine the risk of the use of force by “an indeterminate standard of a judicially imagined ordinary case, not by real world-facts or statutory elements.”

Dimaya v. Lynch’s holding comes on the heels of the Priority Enforcement Memo outlining three priorities for immigration enforcement. The memo includes as a priority crimes of domestic violence that satisfy the definition of a “crime of violence” in 18 U.S.C. section 16(b). It has been said, anecdotally, that between 50{b6b8f04f7bd4b863c4cfed8339fd19419bda3e071c79bc5ac8c810cb9c52e30f} and 70{b6b8f04f7bd4b863c4cfed8339fd19419bda3e071c79bc5ac8c810cb9c52e30f} of all crimes charged (at least in Colorado) are tagged as domestic violence offenses. Dimaya v. Lynch’s impact remains to be seen, but, given that statistic, its impact could be sweeping.