Tuesday, October 3, 2017
Here is my recap of the oral argument yesterday in the Supreme Court in Sessions v. Dimaya. The case is a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court’s opinion in Johnson v. United States to find unconstitutionally vague a provision making a “crime of violence,” as defined in the immigration statute’s “residual clause,” 18 U.S.C. § 16(b), an “aggravated felony” subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court’s conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a “crime of violence” and had to be removed from the United States.
My conclusion is an optimistic one:
"the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court. Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson [v. United States (2015)] to Dimaya’s case – maybe even more faithfully than Scalia himself would have done. And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause."