Gorsuch Joins 5-4 Ruling for Immigrant in Vagueness Dispute

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By Jordan S. Rubin

Part of a federal law used to deport immigrants is too vague and therefore violates the Constitution, a divided U.S. Supreme Court held April 17.

The 5-4 decision saw Justice Neil M. Gorsuch side against the government and his Republican-appointed colleagues.

His vote for the immigrant in the case, James Dimaya, was expected by some, given the newest justice’s apparent skepticism of the government’s position at oral argument.

Under the part of the Immigration and Nationality Act at issue here, an immigrant convicted of an “aggravated felony” is subject to mandatory removal. Such a felony includes an offense 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.”

This language is impermissibly vague, Justice Elena Kagan wrote for the majority.

“This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” Dimaya’s lawyer, Orrick partner E. Joshua Rosenkranz, told Bloomberg Law.

“Today’s decision, years in the making, is a victory for due process and fair notice that will help countless long-term immigrants remain in the U.S. with their families and communities,” Sejal Zota told Bloomberg Law. She’s legal director of the National Immigration Project of the National Lawyers Guild, which filed a brief supporting Dimaya in the case.

The decision addressed the problem of a statute that’s “amorphous and sweeping” and contributes “to arbitrary decision making and excessive sentences (in addition to racial disparities in federal sentencing),” Leah Litman told Bloomberg Law. She’s a professor at University of California, Irvine School of Law.

“But whether Dimaya is ultimately able to correct the errors of the past will depend on whether courts allow prisoners to challenge prior convictions and sentences in light of the decision, as well as whether courts are willing to hold the materially identical provision in section 924(c) unconstitutionally void for vagueness,” Litman said, referring to a law that increases sentences for firearms offenses.

But the ramifications of the majority’s decision “are significant,” Chief Justice John G. Roberts Jr. warned in dissent. The immigration law has ensured “that dangerous criminal aliens are removed from the United States,” he said, quoting a government brief.

The decision could also jeopardize other laws that use similar language, including firearms offenses, Roberts cautioned.

“Today’s ruling significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes, including sexual assault, kidnapping, and burglary, from the United States,” Department of Homeland Security Press Secretary Tyler Q. Houlton said in a statement on the department’s website.

“By preventing the federal government from removing known criminal aliens, it allows our nation to be a safe haven for criminals and makes us more vulnerable as a result,” Houlton said.

“The Secretary has met with hundreds of members of Congress over the last few months to implore them to take action on passing legislation to close public safety loopholes, such as these, that encourage illegal immigration and tie the hands of law enforcement,” he said.

The Justice Department didn’t reply to a request for comment.

Johnson Applies

Dimaya, a lawful permanent resident, appealed an immigration court’s ruling that his two burglary convictions were “aggravated felonies” that could get him deported under the immigration act.

The U.S. Court of Appeals for the Ninth Circuit ruled for Dimaya in a decision by recently deceased “liberal lion” Judge Stephen Reinhardt.

He relied heavily on Johnson v. United States, a 2015 opinion authored by Gorsuch’s predecessor, Justice Antonin Scalia. There, the high court struck down similar “crime of violence” language in the Armed Career Criminal Act . The ruling prompted a mountain of litigation regarding the vagueness of similar language in other statutes.

The reasoning from Johnson applies here, too, Kagan wrote for the court. Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined her opinion in full.

The part of the immigration law at issue here has the same unconstitutional “features” as the part of the law struck down in Johnson, Kagan wrote.

Along with Jennings v. Rodriguez—another case at the intersection of immigration and criminal law, but decided in the government’s favor Feb. 27— Dimaya was argued before an eight-member court last term. It was set for re-argument this term after Gorsuch joined the court.

‘Arbitrary Power’

Gorsuch joined Kagan but wrote his own opinion that examined the history of vagueness in the law at length.

“Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death,” Gorsuch observed.

“Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up,” he said.

Gorsuch went on to conclude that the immigration law used against Dimaya here “is such a law.”

Different Dissents

In dissent, Roberts argued that the court’s ruling in Johnson doesn’t require striking down similar language in the immigration law here. Justices Thomas, Anthony M. Kennedy, and Samuel A. Alito Jr. joined him.

Thomas wrote his own dissent, partially joined by Kennedy and Justice Samuel A. Alito Jr.

He agreed with Roberts, but called into question whether the court is even empowered to strike down laws as unconstitutionally vague at all.

The case is Sessions v. Dimaya, U.S., No. 15-1498, affirmed 4/17/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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