Definition of Crime of Violence Unconstitutionally Vague
In a landmark decision, Dimaya v. Lynch ( 9th Cir. Oct. 19, 2015) a divided panel, relying on recent U.S. Supreme Court precedent, held that burglary under California law is not a “crime of violence” for immigration purposes; moreover 18 USC §16(b) which provides the federal definition of “crime of violence” is unconstitutionally vague. This decision will likely impact not only a plethora of immigration matters, but federal sentencing and bail matters as well. The United States Sentencing Guidelines (USSG) and the Bail Reform Act of 1984 ( 18 USC § 3142 et. seq.) both rely specifically on such federal definition.
In Dimaya, the petitioner, a native of the Philippines, who had immigrated to the United States as a Legal Permanent Resident almost 20 years earlier, was convicted of two first-degree residential burglaries under California Penal Code (CPC) §459. Under California law, as is the case in many states, a residential burglary occurs whenever a defendant “enters” a residential structure with “intent to commit … any felony.” See CPC § 459. Dimaya was subsequently placed into deportation proceedings
Initially holding that each California burglary was a “crime of violence” (“COV”) under 18 USC § 16(b) because each was an offense “that by its nature, involves a substantial risk that physical force against the person or property,” the Immigration Judge (IJ), ordered Dimaya deported, positing that that “unlawful entry into a residence is by its very nature an offense where is apt to be violence [sic], whether in the efforts of the felon to escape or in the efforts of the occupant to resist the felon.” See Dimaya v. Lynch, supra at 5.
Note that the Immigration Judge’s threshold finding that Dimaya had committed an 18 USC §16 “crime of violence” in effect condemned Dimaya to virtually automatic deportation as an “aggravated felon” [8 U.S.C. § 1101(a)(43)(F)], notwithstanding his 18 years of legal residency.
The 9th Circuit, rejecting the IJ’s reasoning, reversed. Relying on recent U.S. Supreme Court precedent, Johnson v. United States, 135 S.Ct. 2551 ( June 26, 2015), the panel reasoned rather that the definition of “crime of violence” contained at 18 USC §16(b), broadly encompassing any felony “that by its nature, involves a substantial risk that physical force against the person or property”) requires judges, like the IJ, to engage in impermissible “judge-imagined abstraction[s]. ” Dimaya supra at 15 quoting Johnson, supra at 2558.
In other words, the language of § 16(b) is so broad and unclear that it does not put “ordinary people” on notice of exactly “what conduct is prohibited.” Dimaya supra at 6, 23. This violates, the 9th Circuit held, the Fifth Amendment Due Process Clause. Id.at 23.
Therefore, the IJ, impermissibly relying on the vague definition contained in §16(b) erred in determining that Dimaya’s California burglary convictions were categorically “crimes of violence.”. Id. at 23. The 9th circuit voided Dimaya’s order of deportation, remanding the case back to the immigration courts.
In my view, Dimaya will resonate not just through in the world of immigration law, but reach federal criminal matters where both the Sentencing Guidelines and the federal bail statutes rely on the same definition for determinations.
For example, under the Bail Reform Act of 1984 (codified at 18 USC § 3142), the government can ask to detain outright (no bond at all) a person, even if not a flight risk, accused of “a crime of violence”.” See 18 USC §3142(f)(1)(A). Since the definition of “crime of violence” has now been held unconstitutionally vague, detentions pursuant to this provision are now arguably subject to challenge. Other commentators agree. See Ninth Circuit Blog, October 25, 2015. I have previously written about federal pretrial detention under §3142 in Detaining for Danger under the Bail Reform Act of 1984, 35 Ariz. Rev. 1091 (Winter 1993).
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