Addressing a circuit split in a decision favorable to immigrants, on April 17, 2018 the Supreme Court held in Sessions v. Dimaya that the second part of the “aggravated felony crime of violence” category of removable offenses, 18 U.S.C. § 16(b), is unconstitutionally void for vagueness. This means that no immigrant can ever be deported, barred from defenses to deportation, or barred from the right to a bond hearing again for having an offense categorized under this constitutionally invalid subsection.
An aggravated felony, which need not be a felony or aggravated, is a broad category of criminal offenses under federal immigration law that triggers some of the harshest immigration consequences possible. A state criminal conviction labeled as an aggravated felony triggers: deportation, including for long-time lawful permanent residents (“green card holders”), a bar to almost every defense to deportation, and mandatory immigration detention without any possibility of release on bond for the entirety of removal proceedings. Out of the 21 types of aggravated felonies, crimes of violence are one sub-category that courts have interpreted particularly broadly given the vague language of 18 U.S.C. § 16(b).
For several years, CAIR Coalition in-house and pro bono attorneys have argued that the broadly-defined 18 U.S.C. § 16(b) subsection is unconstitutional. Many of our clients have remained in prolonged immigration detention for years while waiting for the Supreme Court’s ruling in Dimaya.
The Supreme Court’s holding that 18 U.S.C. § 16(b) is unconstitutionally void for vagueness relies on the Court’s reasoning in Johnson v. United States, 135 S.Ct. 2551 (2015), invalidating the Armed Career Criminal Act’s residual clause as void for vagueness. The statute at issue in Johnson is nearly identical to 18 U.S.C. § 16(b). The Court held that 18 U.S.C. § 16(b) is invalid due to the same constitutional defects.
The Dimaya case arose out of the Ninth Circuit Court of Appeals, which like the Third, Sixth, Seventh, and Tenth Circuit Courts of Appeals, had held that 18 U.S.C. § 16(b) and the vague ordinary case test used to analyze it are unconstitutionally void for vagueness. A circuit split ensued after the Fifth Circuit Court of Appeals initially reached the same conclusion but then reversed itself en banc.
Numerous detained immigrants facing deportation under 18 U.S.C. § 16(b) will benefit from this decision. Several clients who won temporary forms of fear-based protection but preserved arguments that they do not have an aggravated felony now will be eligible for the more permanent protection of asylum.
