Will Supreme Court Curb Criminal Deportations?

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court could hamper the federal government’s ability to deport immigrants convicted of dangerous crimes, the U.S. told the justices during oral argument Jan. 17 ( Lynch v. Dimaya , U.S., No. 15-1498 , argued 1/17/17 ).

The Obama administration has prioritized deporting immigrants convicted of crimes, and President-elect Donald Trump has vowed to continue that policy.

That may be why the Justice Department urged the Supreme Court not to find an existing immigration catch-all provision too vague to stand. The catch-all provision mandates deportation for immigrants convicted of crimes that carry a “substantial risk” of physical harm.

But that measure is substantially similar to a criminal provision struck down by the court as too vague in 2015 in Johnson v. United States, 83 U.S.L.W. 4576, 2015 BL 204915 (U.S. June 26, 2015). This case is just one of many dealing with the fallout from that case.

It wasn’t clear from oral argument which way the justices would ultimately rule. Justice Elena Kagan told the government’s lawyer she was trying to figure out the difference, but that there didn’t appear to be any.

Still, the case might turn on whether deportation is considered a punitive sanction—or merely just a civil matter.

Even though the provision at issue is similar to that struck down in Johnson, the same rules don’t apply, Deputy Solicitor General Edward Kneedler argued. That’s because the vagueness standard used in Johnson isn’t implicated in civil matters like this immigration dispute, he said.

But deportation carries “draconian” consequences, often worse than criminal sanctions, Justice Sonia Sotomayor said. One such consequence is a permanent ban from the country, she said.

That would be an especially dramatic consequence for the plaintiff here, James Garcia Dimaya, who has lived in the U.S. as a lawful permanent resident since he was 13.

The same protections that apply to criminal provisions should also protect Dimaya, said his lawyer, E. Joshua Rosenkranz, of Orrick, Herrington & Sutcliffe LLP, New York.

Replicating Confusion?

The federal government argued in Johnson that if the criminal provision in that case were struck down, it would require striking down the immigration provision in this case, too, Rosenkranz pointed out.

Therefore, both parties—even the government—agree that the problems with the provision struck down in Johnson are present in this case, he said.

Despite Kneedler’s attempts to distinguish the two provisions, several justices seemed to agree that there was little difference between them.

In Johnson, the court struck down a provision in the Armed Career Criminal Act that enhanced prison terms for crimes that involve “conduct that presents a serious potential risk of physical injury to another,” at 18 U.S.C. §924(e)(2)(B).

That required courts to look at the “ordinary case” of a crime, the court said in Johnson. But how does one do that, it asked, ultimately determining that that analysis was untenable.

Here, immigration law requires deportation for an immigrant convicted of a crime 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,” at 18 U.S.C. §16(b).

Doesn’t that also put the “ordinary case” at the center of the inquiry? Sotomayor wanted to know.

Kneedler tried to convince the justices that the “by its nature” phrase made Section 16(b) more precise. But few justices seemed to buy that argument.

It just seems like Section 16(b) is “replicating” the same “kind of confusion” as the provision in Johnson, Kagan said.

‘Revisionist History.’

Still, even though Kagan said she couldn’t see the difference between the two statutes, she thought that the lower courts could.

The lower courts don’t seem to be having the same inconsistent results in interpreting Section 16(b) as they did with the ACCA provision at issue in Johnson, Kagan said.

Kneedler confirmed that section 16(b) hasn’t given rise to the same kinds of “interpretive confusion.”

But Rosenkranz said that was just “revisionist history.”

The lower courts have come to inconsistent results in several cases trying to determine whether a particular crime falls within Section 16(b), Rosenkranz said. In fact, those circuit splits are already making their way to the Supreme Court, he said.

So it’s just not true that the lower courts aren’t having trouble with Section 16(b), Rosenkranz said.

Criminal Versus Civil

But even if the court agrees that the Johnson provision is substantially similar to that at issue here, that doesn’t end the matter.

That’s because Johnson‘s vagueness standard only applies in criminal cases, Kneedler argued.

Civil cases, like the immigration statute at issue here, are subject only to an unintelligible standard, he said. That’s a much lower standard for the government to meet, Kneedler said.

That lower bar is appropriate here because immigrants don’t have a constitutional right to fair notice, like criminal defendants do, he said.

Applying a different standard would make “no sense,” Rosenkranz countered.

Section 16(b) is actually a criminal statute that Congress chose to incorporate into the immigration context, he said.

So applying two different standards could create two different meanings—one in the criminal context and another in the civil—for the exact same provision, Rosenkranz said.

National Security at Stake

Justice Stephen G. Breyer said Rosenkranz’s argument had appeal.

He was troubled, though, by its implications.

Wouldn’t it invalidate phrases commonly used in the civil context that might be considered too vague for the criminal context? Breyer asked. He pointed to phrases regulating price fixing as examples.

Moreover, Kneedler told the justices that finding Section 16(b) unconstitutionally vague would put national security at stake. It would make it harder for the government to deport violent criminals, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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