Both Sessions v. Dimaya and Jennings v. Rodriguez were argued before Gorsuch joined the court in April and the order for new arguments suggests the other eight justices were evenly divided on how they should be decided.
In Dimaya the court has been asked to decide whether burglary under California law meets federal "crime of violence" standards for deporting a permanent legal resident. Rodriguez questions the constitutionality of lengthy immigration holds.
Chief Justice John Roberts announced Monday that both cases, which began during the Obama administration, will be heard in the fall.
Eleanor Acer with Human Rights First criticized the move.
"The Court’s decision to punt this case to its next session was a missed opportunity to uphold the Constitution’s commitment to liberty and U.S. human rights treaty obligations that prohibit arbitrary detention,” Acer said in a statement. “It will leave many asylum seekers and immigrants locked up in U.S. immigration detention facilities for even longer periods of time. The decision allows U.S. Immigration and Customs Enforcement to continue, in most parts of the country, to act as both jailer and judge in deciding whether to continue to hold an asylum seeker or migrant in a detention facility for longer than six months.”
James Garcia Dimaya, a citizen of the Philippines and permanent legal resident of the United States, successfully challenged the Board of Immigrations' decision not to review a deportation order following his two burglary conviction in California.
A three-judge panel of the Ninth Circuit ruled - following a Supreme Court decision in 2015 that the federal definition of "violent felony" in Armed Career Criminal Act was unconstitutionally vague - that the federal definition of a crime of violence in the Immigration and Nationality Act suffered from a similar lack of specificity and ordered the board to review Dimaya's petition.
Specifically, the Ninth Circuit panel noted that the "harsh consequences" of deportation - and the fact that relief available in other criminal cases isn't available to non-citizens facing deportation - means that definitions of deportation standards must be ironclad in order to pass muster with constitutional due-process guarantees.
But the panel found that as with the Armed Career Criminal Act's definition of violent felony, the Immigration and Nationality Act "requires courts to 1) measure the risk by an indeterminate standard of a 'judicially imagined "ordinary case,"' not by real world-facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial.
"Together, under Johnson, these uncertainties render the Immigration and Nationality Act provision unconstitutionally vague," the panel found.
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