On April 17, 2018, the US Supreme Court ruled in Sessions v. Dimaya that a Filipino man with 2 burglary convictions who had become a US permanent resident as a child is entitled to a hearing before an Immigration Judge where he can apply for relief from removal.
James Dimaya immigrated to the US in 1992. In both 2007 and 2009, he was convicted of residential burglary. In one case, he burglarized a garage and in the other, an abandoned house. For these crimes, he served almost 5 years in prison.
Before we get to the rationale of the Court’s decision, it is necessary to provide some background.
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When I served as an INS prosecutor in the early 1980s, if an immigrant was convicted of a serious crime, he would almost certainly be ordered deported by an Immigration Judge.
However, it wasn’t until 1988 that a law was enacted which provided that a person convicted of murder or trafficking in drugs or firearms would be characterized as an “aggravated felon” for deportation purposes.
Then, in 1996, Congress went completely overboard and classified dozens of minor crimes as aggravated felonies.
The main problem with the 1996 law was that an immigrant who was convicted of a crime which was neither aggravated nor a felony could nonetheless be classified as an aggravated felon and be subject to deportation from the US without the right to apply for cancellation of removal from an Immigration Judge.
Thousands of immigrants with relatively minor offenses which sometimes occurred many years before have been deported as “aggravated felons” since the 1996 law went into effect. The Immigration Policy Council estimates that 68% of lawful permanent residents who were deported as aggravated felons were convicted of minor, non-violent offenses.
In 1999, the US Court of Appeals for the 3rd Circuit, in USA v. Winston C. Graham ruled that a petit larceny conviction, though a misdemeanor, made an immigrant an aggravated felon. The Court weighed in on this ridiculous outcome in their decision calling the 1996 law:
“…a carelessly drafted piece of legislation (which) has improvidently, if not inadvertently, broken the historic line of division between felonies and misdemeanors…”
Now, in Sessions v. Dimaya, the Supreme Court ruled that a portion of the 1996 law violates the Constitution because of its vagueness.
Dimaya Did Not Commit a “Crime of Violence”
The government sought to deport Mr. Dimaya for committing a “crime of violence”. However, his burglaries of a garage and an abandoned house did not involve violence.
The issue before the Supreme Court involved 18 U.S. Code, Section 16:
The term “crime of violence” means—
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
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.
The Supreme Court struck down the “residual clause” of 18 U.S.C. 16(b) as unconstitutionally vague.
Judge Neil Gorsuch, who was appointed to the Supreme Court in 2017 by President Trump, wrote in his concurring opinion that “vague laws invite arbitrary power”.
The majority opinion relied heavily on Justice Scalia’s 2015 opinion in Johnson v. United States where the Supreme Court ruled that a similar criminal law was unconstitutionally vague.
Whether Mr. Dimaya will be able to remain in the US or be deported is unknown.
However, what is important is that he and others like him will now be able to present their cases before Immigration Judges who will decide on a case-by-case basis whether to grant them relief from deportation or to order them removed from the US.
Everyone in the United States, citizens and immigrants alike, is entitled under our Constitution to due process of law.