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April 26, 2018

Crime-based removal provision is unconstitutionally vague

By Michael H. Joseph

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On April 17, 2018 the Supreme Court announced that an immigration law that allowed deportation of immigrants who committed crimes of violence was unconstitutionally vague when it comes to defining what a “crime of violence” is, with the surprising swing vote coming from Justice Neil Gorsuch, a Trump appointee.  It has long been an established principal of due process that the law must be sufficiently clear, so that people have fair warning when criminal or other penalties will be imposed for their actions.

In the case, before the Supreme Court, a  Philippine native James Dimaya, who was a permanent legal resident thathad been living in California since 1992, was convicted of two separate burglaries. An immigration judge ruled that the burglaries were crimes of violence, making Dimaya deportable as an aggravated felon.  This was an unusual ruling in and of itself becuase burglary is typcially thought of as a crime against property or a larceny, but not necessary a violent crime,  as opposed to robbery, which by definition involves taking property by force or the threat of force.   Our Westchester New York immigration lawyers who also practice criminal defense in New York, know that deportation can be worse than the sentence imposed by the underlying criminal charge and is equivalent to a banishment. After Dimaya was ordered deported in 2010, he challenged the law as too vague. Since the burglaries were not violent, he argued, they should not have warranted deportation.  While his case was pending, the Supreme Court overturned the Armed Career Criminal Act (ACCA), and held that its definition of “violent felony” was unconstitutionally vague. The 9th U.S. Circuit Court of Appeals applied that ruling in Dimaya’s case and ruled in his favor.

The Supreme Court thus ruled Tuesday April 17, 2018 that a federal law allowing deportation of immigrants who commit “crimes of violence” was unconstitutionally vague.

“Does a conviction for witness tampering ordinarily involve a threat to the kneecaps or just the promise of a bribe? Does a conviction for kidnapping ordinarily involve throwing someone into a car trunk or a noncustodial parent picking up a child from daycare?” wrote Justice Neil Gorsuch, the surprise swing vote in the 5-4 decision.  Judge Gorsuch also  wrote, “Vague laws can invite the exercise of arbitrary power … by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up. The law before us today is such a law.”This ruling stirred a lot of discussion and was welcomed by immigration attorneys, who said the aggravated felony standard was a “difficult subject” for accused immigrants and their lawyers. This decision was hailed by Arizona immigration lawyers as a “promising step forward.”

Another Immigration Attorney quoted saying that “This case doesn’t just change for Dimaya, It changes for a whole group of people who otherwise would be set up for deportation under a very vague standard that has been used to hammer people – I think, abusively so.”

Joshua Rosenkranz, who represented Dimaya at the high court on the 2017 term’s first day in October, hailed the verdict.  “This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” he said.  This ruling provides a strong weapon for lawful residents who have been convictied of crimes and are facing deportation.

This ruling by Gorsuch has been totally contrary to Trumps agenda.  What makes this ruling most interesting is that Justice Gorsuch was appointed by Trump. The result of this decision is that many people that could have been deported under this statute in the future cannot be deported under this ground in immigration court now.  It is interesting to see how Trumps agenda is seemingly failing as we see that Republicans in his own party and his own appointed judge seem not to be in his side with deporting criminally charged or convicted aliens. If you or a loved one are a permanent resident and our facing deportation, call our New York deportation defense lawyers today.

 
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