Monday, October 3, 2016

Immigration Article of the Day: Crimmigration and the Void for Vagueness Doctrine, by Jennifer Lee Koh

  Koh Website Profile Photo

 Crimmigration and the Void for Vagueness Doctrine, Jennifer Lee Koh, Western State College of Law, 2016 Wisconsin Law Review __ (forthcoming, 2016)


Since the Supreme Court’s 2015 decision in Johnson v. United States, a federal sentencing decision holding that the residual clause of the Armed Career Criminal Act was void for vagueness, the vagueness doctrine has quietly and quickly exploded in the legal landscape governing the immigration consequences of crime. On September 29, 2016, the Supreme Court granted certiorari in Lynch v. Dimaya, an immigration case in which the Court will resolve a circuit split addressing whether part of the federal definition of a “crime of violence”—a classification that triggers nearly automatic deportation and immigration detention – is unconstitutionally vague.

This Article argues in favor of applying the void vagueness doctrine to various statutory provisions that lie at the crossroads of immigration and criminal law, including the provision before the Court in Dimaya. The vision of vagueness articulated in this Article complements the Supreme Court’s recent jurisprudence with respect to the categorical approach, the methodology for assessing the immigration consequences of crime, and is consistent the Court’s decision in Johnson as well as the values animating the vagueness doctrine. Those twin values — providing reasonable notice, and preventing arbitrary or discriminatory law enforcement practices — apply with exceptional force in immigration, an area of law in which the liberty stakes of the crime-based removal grounds are high, notice is critical, and the risk of arbitrariness and discrimination by government actors at multiple levels is acute.


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