On October 19, 2015, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed a removal order, holding that 18 U.S.C. § 16(b), part of the definition of the phrase “crime of violence,” was unconstitutionally void for vagueness. Garcia-Dimaya v. Lynch, No. 11-71307 (9th Cir. Oct. 19, 2015).
What was this case about?
Two grounds of removability incorporate the phrase “crime of violence as defined in 18 U.S.C. § 16.” See INA §§ 101(a)(43)(F) (crime of violence aggravated felony); 237(a)(2)(E)(i) (crime of domestic violence). Section 16 is, in turn divided into two subsections. Subsection (a), which remains valid, defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Subsection (b), however was ruled unconstitutional by the Ninth Circuit. Under 18 U.S.C. § 16(b), a crime of violence is an 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.”
Why is the statute unconstitutional?
This year, the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), which declared unconstitutional a statute that was very similar to 18 U.S.C. § 16(b). The statute at issue in Johnson was part of the Armed Career Criminal Act, and provided for a longer federal sentence if the defendant had previously been convicted of “any crime punishable by imprisonment for a term exceeding one year … that … involves conduct that presents a serous potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The Fifth Amendment’s Due Process Clause requires that a law define the criteria for deportation “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” See Kolender v. Lawson, 461 U.S. 352, 357 (1983); Jordan v. De George, 341 U.S. 223, 231 (1951). A statute that fails this test is said to be “void for vagueness.” According to the Ninth Circuit, § 16(b) failed this test because (like the statute in Johnson) the statute did not focus on real-world facts or the elements of the crime, but rather called on judges to surmise whether the crime involved a “substantial risk of force” in the “ordinary case.” See Garcia-Dimaya, slip op. at *11.
What does this mean for my clients?
Garcia-Dimaya is likely to be only the first of many cases in the Courts of Appeals to consider the constitutionality of 18 U.S.C. § 16(b). It is likely to be an issue that will only be decided by higher courts. It is important, for the time being, for advocates to preserve the argument that 18 U.S.C. § 16(b) is unconstitutionally void for vagueness so that higher courts will have jurisdiction to review the claim during the appellate process.