There has always been some uncertainty as to what crimes could constitute a “crime of violence” and thus an aggravated felony, for immigration purposes. This is a serious issue because an alien that is convicted, at any time, of an aggravated felony is deportable. In a long awaited decision, the Supreme Court recently held, in Sessions v. Dimaya, that one of the statutes affecting deportable aggravated felons is vague enough to be unconstitutional.

8 USC 1101 (a)(43) gives a list of crimes that are considered aggravated felonies for immigration purposes. This list includes any “crime of violence” (as defined in the criminal code) for which the term of imprisonment is greater than one year.

The criminal code 18 USC 16 defines a crime of violence as one of two types of crimes:

(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.

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Determining what is a “crime of violence” under section (a) is pretty straightforward. Criminal statutes include “elements” and each of those elements has to occur before a person can be convicted of that crime. If one of the criteria for being convicted of the crime includes the use of physical force, and the term of imprisonment is more than one year, then an alien would be deportable.

The recent Supreme Court case Sessions v. Dimaya addressed the constitutionality of section (b), the second type of a crime of violence. If the crime statute does not include an element of physical force, then an alien could still be ineligible under section (b) if the crime, by its nature, involves a substantial risk that physical force may be used against a person or property.

But, circuit courts were split on whether crimes such as evading arrest, statutory rape, or residential trespass involved a substantial risk of the use of physical force. Therefore, the Supreme Court accepted cert in Sessions v. Dimaya to resolve the issue, ultimately holding that section (b) was too vague and therefore unconstitutional.

A few years ago, in Johnson v. U.S., the Supreme Court decided that the term “violent felony” was unconstitutionally vague, as it was being used in a criminal statutory context for enhanced sentencing, and Dimaya was able to successfully argue that a similar standard of clarity should apply in a civil immigration context.

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What is the impact of Dimaya?

The Supreme Court made it clear that the laws regarding deportation and removal are subject to the same test for vagueness as criminal laws. While this is significant, the Court only invalidated the second subsection involving crimes that do not include an element of physical force.

Evading arrest is a good example. Evading arrest may not necessarily involve violence, but some of the circuit courts had ruled that there was a substantial risk that physical force could be used; therefore evading arrest was an aggravated felony in some jurisdictions.

Under Dimaya, a crime such as this would likely not be an aggravated felony unless the statute in the state where the crime was committed included an element of physical force or threat of physical force.

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Dimaya will not affect most immigrants facing deportation as aggravated felons. All the other crimes that are listed as aggravated felonies are still grounds for deportation. This includes murder, rape, drug trafficking, many theft crimes, tax evasion etc. Additionally, a crime of violence that is not specifically listed but where the crime includes an element of physical force is still a deportable offense. But, in certain circuits, where section 16b was liberally interpreted to include non-violent crimes not specifically listed in other sections of the INA, there could be a significant impact.

If you believe that your immigration case is affected by the Dimaya decision, there may be filing deadlines that apply, so you should speak with a licensed attorney that specializes in U.S. immigration law.