Saturday, October 24, 2015
Analysis of Dimaya v. Lynch - U.S. Court of Appeals for the Ninth Circuit (2015) by Nicole Zanardi, UC Davis Law Student
Jennifer Koh blogged about this decision earlier this week. Here is additional analysis by Nicole Zanardi, a student at UC Davis School of Law:
Dimaya v. Lynch - U.S. Court of Appeals for the Ninth Circuit (2015)
Summary of Decision
A panel for the U.S. Court of Appeals for the Ninth Circuit granted petitioner’s petition for review of the Board of Immigration Appeal’s (BIA) decision holding that his conviction of burglary under CA Penal Code § 459 is a categorical “crime of violence” as defined by 8 U.S.C. § 1101(a)(43)(F). The panel held that the language of 18 U.S.C. §16(b), incorporated into the “crime of violence” definition within 8 U.S.C. § 1101(a)(43)(F), is unconstitutionally vague. Accordingly, the panel remanded the case to the Board of Immigration Appeals for further proceedings consistent with this opinion.
Petitioner James Garcia Dimaya, a native and citizen of the Philippines, was admitted to the United States in 1992. In 2007 and 2009, Dimaya was convicted of first-degree residential burglary under CA Penal Code § 459 and sentenced each time to two years in prison.
The Department of Homeland Security, citing those two convictions, charged that Dimaya was removable because he had been convicted of a “crime of violence for which the term of imprisonment was at least one year” – which is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge affirmed that Dimaya had in fact committed a “crime of violence,” which is defined in 18 U.S.C. §16(b) as:
(a) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or,
(b) Any other 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 the course of committing the offense.
The judge, citing 18 U.S.C. §16(b) and United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990), explained that “unlawful entry into a residence is by its very nature an offense where there is apt to be violence, whether in the efforts of the felon to escape or in the efforts of the occupant to resist the felon.” The judge concluded that, because the charging documents for each conviction alleged an unlawful entry, and because the term of imprisonment for each conviction was greater than one year, these convictions were crimes of violence and thus Dimaya was removable for having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). In addition, he was ineligible for any relief.
Dimaya appealed this decision, but the BIA dismissed his claim. Instead, the BIA affirmed the Immigration Judge’s holding, finding that Dimaya’s conviction for burglary under CA Penal Code § 459 is a categorical “crime of violence” within 8 U.S.C. § 1101(a)(43)(F).
In an opinion by Judge Stephen Reinhardt, and joined by Judge Kim McLane Wardlaw, the U.S. Court of Appeals for the Ninth Circuit granted Dimaya’s petition for review of the BIA’s finding under the idea that a noncitizen may bring a “void for vagueness challenge” to the definition of a crime of violence within the Immigration and Nationality Act.
The panel asserts that the Due Process Clause requires that a penal statute define the criminal defense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. It goes on to analogize Dimaya’s case with United States v. Johnson, 135 S. Ct. 2551 (2015) in order to reach its finding. In Johnson, the Supreme Court found that the “residual clause” definition of a violent felony in the Armed Career Criminal Act was indeterminate and thus unconstitutionally vague.
The panel explains that the language of 18 U.S.C. § 16(b) is unconstitutionally vague and arbitrary because it is subject to the same method of interpretation as the language of the residual clause in the Armed Career Criminal Act. Both the language of 18 U.S.C. § 16(b) and the residual clause at issue in Johnson are subject to the categorical approach. This means that the court in each case must “look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” This, explains the panel, in turn requires that the court engage in two analytical steps that are both unduly vague. First, it must decide what a “’usual or ordinary’ violation” of the statute entails, and then it must determine by vague and uncertain standards when a risk is sufficiently substantial as to go beyond the risk involved in an “ordinary case.” There is no guidance given to the court in determining what an ordinary case is, rather the “ordinary case” itself is imagined, not based on real facts or statutory elements. Nor is there guidance to direct the court on how to measure risk or how much risk there needs to be in order for the risk to go beyond the risk in an “ordinary case.” The panel concludes that because the categorical nature of the 18 U.S.C. § 16(b) language is subject to identical unpredictability and arbitrariness as the ACCA’s residual clause, it is another example of an unconstitutionally vague statutory standard.
The government challenges the panel’s position by arguing that the doctrine of statutory vagueness has been rejected in cases involving removal. However, the court counters that previously, it has recognized the vagueness doctrine’s applicability in the context of withholding of removal “because of the harsh consequences attached to . . . denial of withholding of removal.” For example, In Jordan v. De George, 341 U.S. 223, 231 (1951), the Supreme Court rejected the argument that the vagueness doctrine did not apply to deportation cases. In this case, Dimaya challenges a statute as unconstitutionally vague in the context of denial of cancellation of removal. This clearly falls within the “deportation case” context because denial of cancellation of removal renders an alien ineligible for relief, making deportation “a virtual certainty.” Further, As the Supreme Court recognized in Jordan, a necessary component of a non-citizen’s right to due process of law is the prohibition on vague deportation statutes. This promotes efficiency, fairness and predictability by protecting alien’s ability to “anticipate the immigration consequences of guilty pleas in criminal court.”
Although the government can point to a couple of minor distinctions between the text of the residual clause and that of the INA’s definition of a crime of violence, the panel maintains that not one undermines the applicability of Johnson’s fundamental holding to this case.
In dissent, Judge Consuelo Callahan focuses on these minor distinctions between 18 U.S.C. § 16(b) and the residual clause to assert that 18 U.S.C. 16(b) is not unconstitutionally vague under the Court’s decision in Johnson. Callahan concludes that 18 U.S.C. 16(b) does not suffer from either of the specific shortcomings that the Court identified in the residual clause: 18 U.S.C. § 16(b) does not leave grave uncertainty about how to estimate the risk posed by a crime in the burglary context, nor does it leave uncertainty about how much risk it takes for a burglary to qualify as a violent crime.
Callahan begins his argument by reminding us that § 16(b) is broader than § 16(a). Section 16(b) states that a crime of violence means “any other 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 the course of committing the offense.” Thus, in using 16(b), a court will only have to decide whether, by the nature of the crime, there was a risk that the use of physical force against another might be required in committing the offense.
Callahan then turns back to Johnson to describe why 16(b) is not tainted by unconstitutional vagueness in the way that the residual clause was. First, he mentions that the Johnson decision does not prevent all uses of the “ordinary case” standard. Rather, it only prohibits uses that leave uncertain both how to estimate the risk and amount of risk necessary to qualify as a violent crime. Thus, reasons Callahan, the use of the “ordinary case” standard is functional in the present case, as there is no uncertainty in risk assessment: citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004), he points out that § 16(b) has been found to cover burglary crimes because by their nature crimes of burglary involve a substantial risk that the burglar will use force against a victim in completing the crime. Thus, burglary has been easily held an aggravated felony under § 16(b), as a “crime of violence” using the “ordinary case” approach. Callahan asserts that the Ninth Circuit and Supreme Court (such as in Leocal v. Ashcroft) have consistently followed this reasoning. Callahan then asserts that there is no uncertainty as to how much risk it takes for a burglary to qualify as a crime of violence. Section 16(b) requires “substantial risk” of the use of physical force, and until now, the courts have not had trouble applying this standard in burglary cases to determine what substantial risk means, as seen in cases including Leocal v. Ashcroft and U.S. v. Becker.
The difference in opinion between the majority and Callahan’s dissent seems to hinge on 1) the difference in opinion on the scope of the Johnson decision and 2) the difference in opinion about how fact-specific v. generic a court’s assessment of risk in evaluating a crime should be.
The majority maintains that the present case falls directly within the scope of the Johnson opinion, whereas Callahan suggests that the Court in Johnson did not intend to do away completely with the “ordinary case” categorical approach in evaluating crimes, but only to limit this approach when evaluating risk is too uncertain. The majority argues that the court, in incorrectly using the “ordinary case” approach, was forced to guess, without any guidance, in measuring risk in Dimaya’s case and figuring out how much risk should be deemed too much. Callahan, on the other hand, found that because the crime of burglary by its nature involves substantial risk, and the standard “substantial risk” has been easily evaluated in burglary cases before, the court actually did have a form of generic guidance, and thus there was no unconstitutional uncertainty stemming from any lack of case-specific analysis.
Importance for Immigration Law
The outcome of the Dimaya v. Lynch case is significant in its positive effect on immigration law for noncitizens. Specifically, the decision alters the scope of the effect that criminal convictions have on one’s risk of deportation. The court held that the INA’s definition for “crime of violence,” one of the several categories of convictions that amount to an aggravated felony under immigration law, is unconstitutionally void due to its vagueness. In doing so, the court reaffirmed the important right of noncitizens to bring a “void for vagueness challenge” to a crime of violence within the INA.
This is hugely important because it has the potential provide removal relief to countless noncitizens who face deportation. Hopefully, fewer noncitizens will be found deportable on this aggravated felony ground in the first place, because of the new potential for successful challenges against it. In addition, this decision will quite possibly lead to other categories of aggravated felony being challenged in circuit courts for the same sort of unconstitutional vagueness.
The decision also asserts the due process rights of noncitizens facing deportation. This is important because noncitizens do not enjoy many of the due process rights enjoyed by criminal defendants in the U.S., such as the right to counsel and the right to a jury trial. Hopefully, this decision is a step towards recognizing full due process rights for noncitizens.