WASHINGTON (CN) – After the death of Justice Antonin Scalia added an asterisk to some of the country’s most divisive legal battles last year, the Supreme Court returns from summer hiatus Monday to rehear the deportation challenge of a convicted burglar.
James Garcia Dimaya’s first round of oral arguments occurred in January, mere weeks after President Donald Trump took office. Because of the unprecedented obstructionism in the Senate during the last administration, however, the Supreme Court seat that Scalia’s death opened the previous February remained unfilled.
Opting to get input from Justice Neil Gorsuch, who joined the court in April, the court closed out its term in June with an order to rehear Sessions v. Dimaya, as well as another case, Jennings v. Rodriguez.
A green card holder who emigrated from the Philippines at age 13, Dimaya is fighting deportation after pleading “no contest” to residential burglary charges in 2007 and 2009.
His challenge stems from a section of the Immigration and Nationality Act that mandates the deportation of people who are convicted of aggravated felonies.
Of particular issue here, however, Dimaya faced aggravated felony charges but did not physically hurt anyone during the robberies.
Though the Immigration and Nationality Act has an expansive definition of what crimes qualify as “aggravated,” it also includes a provision of another law that defines a “crime of violence” as an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.”
Referred to as a “residual clause,” the troublesome phrasing bears resemblance to a clause defining “violent felony” in the Armed Career Criminal Act that the Supreme Court struck down in the 2015 case Johnson v. United States.
Relying on that precedent, the Ninth Circuit found the residual clause of the Immigration and Nationality Act unconstitutionally vague.
“[The residual clause] gives judges no more guidance than does the ACCA provision as to what constitutes a substantial enough risk of force to satisfy the statute,” U.S. Circuit Judge Stephen Reinhardt wrote for the majority, using the abbreviation for the Armed Career Criminal Act.
Attorneys for the government say this reversal was wrongly decided wrongly because the executive branch has traditionally had “broad authority” over enforcement of immigration laws. They also say that the vagueness doctrine applied to criminal law should not extend to civil immigration law.
Another factor that the government hopes will save the residual clause is that it is not as vague as the provision from Johnson. That clause inspired confusion among lower courts and other, similar laws the Supreme Court has struck down as vague have been “so unintelligible as to effectively supply no standard at all,” the government argued in a 2016 brief.
By contrast, the government argues, no lower court challenged the residual clause before the Johnson decision because its text is much more specific.
“Rather, this court, based on the limits imposed by the plain text of the provision, should confirm that the statute has a comprehensible core that ensures that the commission of a clearly dangerous felony triggers removal under the immigration laws,” the government’s brief states.
But the government’s point might be weakened by its own argument of the 2015 Johnson case. As Dimaya’s attorneys point out in their brief, dated Dec. 14, 2016, the government argued in Johnson that striking the clause at issue in that case would open up the INA’s residual clause to the same treatment.
Leaning heavily on Johnson, Dimaya argues the residual clause requires judges to divine whether a specific crime might “by its nature” cause injury to another person, an unconstitutionally vague standard that violates the due process clause.
“In the end, the government seeks to deport a lawful permanent resident based on his conviction for California’s extraordinarily broad ‘burglary’ crime because an imagined ‘ordinary case’ of the offense involves some high-enough risk of physical force,” Dimaya’s brief states. “That analysis is far too arbitrary to permit the government to exile him forever from the only country he has known since he was 13.”
The liberal justices on the Supreme Court seemed sympathetic to this argument when they heard the case in January. Justice Elena Kagan wondered how a judge is supposed to determine which crimes might result in the use of physical force when so many different factors could transform a nonviolent crime into a violent one.
“Somebody could walk in on a burglary and all of a sudden there would be a use of force,” Kagan said at the January arguments. “But a burglary could happen in such a way that nobody walked in and there wouldn’t be a use of force. So again, it just seems as though we’re replicating the same kind of confusions and there’s nothing that separates the two.”
Deputy Solicitor General Edwin Kneedler told Kagan the INA’s residual clause is not as ambiguous as the one struck down in Johnson because it looks at the “elements” of a specific crime.
“Burglary is descended from the common law and its rationale is precisely because of the risk that the burglar will encounter someone the course of committing the burglary,” Kneedler said at the arguments.