Leading one of the first cases under the Crim-Imm Pro Bono Project, Wiley Rein LLP forges ahead on appeal to argue that the law does not allow their client, a long-time green card holder, to be deported based on his criminal conviction. If successful, the team’s client will be able to keep his green card and reunite with his U.S. citizen family. Moreover, many future immigrants facing deportation due to similar types of convictions will be able to challenge their deportation.
In this case, the Wiley Rein Pro Bono team of Nick Peterson, Madeline Cohen, and Dylan Hix have worked through many stages of fighting their client’s deportation. The team’s appeal centers on the argument that their client's conviction was wrongly categorized as an aggravated felony crime of violence under immigration law, a certain type of broadly interpreted removable offense.
With much hard work, the team has already found some success at the immigration court level. The team convinced the Immigration Judge to dismiss one of two charges of removability levied by the U.S. government. Now on appeal before the Board of Immigration Appeals, the Wiley Rein team is geared up to argue that the main remaining point of contention – the second charge of removability alleging that their client committed an aggravated felony crime of violence – must also be dismissed. If successful, their client cannot be deported.
The Wiley Rein team will make two primary arguments. First, the aggravated felony crime of violence charge of removability should be dismissed because it is based solely on a statute subsection, 18 U.S.C. § 16(b), which is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133, 134 (2010). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is void for vagueness. As several circuit courts of appeals have already held, the ACCA residual clause and § 16(b) are essentially identical, and Johnson’s holding thus renders § 16(b) constitutionally invalid.
Second, the team will argue that following Johnson, the Immigration Judge applied an unconstitutional legal test under § 16(b) to determine whether their client committed a crime of violence. Under the appropriate test, their client’s conviction does not constitute an aggravated felony crime of violence.
A win on this issue would set the stage for future immigrants facing deportation due to a conviction that the government alleges is an aggravated felony crime of violence. As the Fourth Circuit Court of Appeals has yet to rule on the constitutionality of § 16(b) and the infirm legal test applied to analyze it post- Johnson, the Wiley Rein attorneys' arguments have the potential to benefit many immigrants. This is the essence of the impact component of the Crim-Imm Pro Bono Project.
