The Supreme Court decided Sessions v. Dimaya on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.
Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings. See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. It is this provision that the Supreme Court scrutinized.
The first subsection of the crime of violence definition provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. 18 U.S.C. § 16(a). However, the definition alternatively states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015).
If you have a client who the Department of Homeland Security is trying to remove for an aggravated felony crime of violence under 18 U.S.C. § 16(b), you should immediately take action. If the case is currently pending before an immigration court, the Board of Immigration Appeals or a U.S. court of appeals, file an appropriate pleading to obtain the benefits of this decision. Remember that aggravated felonies render non-citizens ineligible for many immigration benefits and relief from removal, so a client held to have an aggravated felony crime of violence under 18 U.S.C. § 16(b) may now be eligible for immigration benefits or relief from removal thanks to this decision. If your client was previously ordered removed under 18 U.S.C. § 16(b), consider filing a motion to reopen, even if the removal order was issued long ago or the client has already been deported. See Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) (granting a motion to reopen based on a change of law where the noncitizen acted quickly to protect his rights as soon as he learned of the change).
For guidance on motions to reopen, please refer to CLINIC’s Motions to Reopen for DACA Recipients with Removal Orders Practice Advisory as this resource discusses the law on motions to reopen including Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) and the legal principle of equitable tolling. For case assistance, please send a request to Training and Legal Support online at cliniclegal.org/ask-experts.