It has been the law in this country for decades that if a lawful permanent resident is convicted of an “aggravated felony,” the offending individual is subject to removal from the United States. The Immigration and Naturalization Act (INA) defines a “crime of violence” as an aggravated felony if it carries a penalty of at least one year. This definition is drawn from Section 16 of Title 18 of the United States Code.


Subsection (a) of § 16 is clear about what constitutes a crime of violence: “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”


But Subsection (b) of § 16 is not nearly as clear: “any other offense that is a felony and that, by its nature, involves substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”


Is Burglary a Crime of Violence?


Subsection (b) has presented to the federal appellate courts the difficult, if not impossible, task of interpreting statutes from all 50 states to determine if they fall into the federal definition of a “crime of violence.” For example, a burglary in Texas may be considered a crime of violence while it Oklahoma it may be considered a mere property crime.


Three years ago the U.S. Supreme Court in Johnson v. United States intervene to clear out the legal thicket of § 16 by declaring it unconstitutionally vague as it applied to the Armed Career Criminal Act (ACCA). Scores of convictions and/or criminal sentences had to be reversed across the federal prison landscape following Johnson.


Then came the April 17, 2018 decision, Sessions v. Dimaya, in which the Supreme Court extended the Johnson pronouncement to INA proceedings.


In an April 27 Lawfare blog, Ellot Kim succinctly set forth the factual basis for the Dimaya decision: “James Dimaya is a native of the Philippines who was admitted into the United States in 1992 as a lawful permanent resident. In 2007 and again in 2009, Dimaya was convicted of first-degree residential burglary under California law. For each conviction, Dimaya was sentenced to two years in prison. Based on these two conviction, the Department of Homeland Security said Dimaya was removal because Dimaya had committed a ‘crime of violence … for which the term of imprisonment [was] at least one year,’ which would be an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43)(F).”


Relentless War on Immigrants


It can reasonably be assumed that thousands of adjudicated removal proceedings against lawful permanent residents will now be vacated permitting the residents with opportunities to remain in this country. The Dimaya decision is certainly a gut-kick to the Trump administration which has waged a relentless war on both lawful foreign born residents and undocumented immigrants of color in this nation. That the Trump administration’s immigration policies are riddled with blatant racism is undeniable. The Dimaya decision will at least stymie some of the administration’s racially motivated removal proceedings against thousands of lawful permanent residents.


Court Says Removal Proceeding Demand Exacting Standard


Ellot Kim, a JD candidate at the Harvard Law School, effectively dissected the Dimaya decision (whose majority opinion was written by Justice Kagan) this way:


“First … the plurality considered the government’s argument that Johnson was distinguishable because it was a criminal case. According to the government, in a prior decision the court had demonstrated a greater tolerance for vagueness in ‘enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.’ While agreeing that removal from the United States is not a criminal punishment, [Justice] Kagan rejected the government’s argument, noting that the court ‘long ago held that the most exacting vagueness standard should apply in removal cases’ because of the severe consequences of deportation, which can amount to a ‘lifelong banishment or exile’ from the United States. As a result, the plurality held that it was appropriate to subject provisions of immigration law to the same ‘void of vagueness’ standard that is applied to criminal statutes. Thus, according to the plurality, the only way that the §16’s residual clause could be used in immigration hearings was for the government to show that the residual clause was ‘materially clearer than its now-invalidated ACCA counterpart.’


“The court [then] turned to that inquiry and found that the case was resolved by Johnson, ‘a straightforward decision, with equally straightforward features as ACCA’s, combined in the same constitutionally problematic way.’ The first feature of §16’s residual clause is the ordinary case analysis, which in Johnson created ‘grave uncertainty about how to estimate the risk posed by a crime.’ To illustrate the vagueness created by ordinary case analysis, Justice Kegan recounted the sample from Johnson of two different judges trying to assess the level of risk of violence involved in the ordinary case of attempted burglary …”


Trump Tweets Dissatisfaction with SCOTUS Decision


As pointed out by Kim, Trump tweeted shortly after the decision that “Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons.”


James Dimaya was not a “dangerous criminal” nor was he an “aggravated felon.” He committed two non-violent felonies for which he served two years. Those two offenses, we believe, did not warrant his removal from the United States. Members of Trump’s cabinet have committed worse offenses in the short time they have been in office.