SCOTUS just threw a wrench in Trump’s deportation machine—and Gorsuch is in on it

Jessica James / Flickr How Neil Gorsuch could affect the...
Jessica James / Flickr

The Supreme Court just got something right in a big way, and its decision has huge implications for immigrants in the U.S., most of all for thousands at risk of or awaiting deportation. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, along with Neil Gorsuch, decided that one provision of legislation mandating the deportation of immigrants who commit certain types of crimes is so vague, and generates such unpredictable results, that it’s unconstitutional.

Until this ruling, the Immigration and Nationality Act, or INA, required authorities to deport aliens, a.k.a. immigrants, convicted of an aggravated felony, including crimes of violence. It also ruled out cancelation of removal—a way to halt deportation proceedings—for those immigrants. Problem was, the statutory definition of “crime of violence” upon which the INA relied was rather hazy:

“(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.”

It’s that second part, referred to as the “residual clause,” that inspired this case. Courts have been deciding what constitutes a crime of violence under (b) based on categories of offenses and the “ordinary nature of the offense”—meaning the generic version of that crime—rather than the facts of a particular offense.

For James Dimaya, that meant that even if he didn’t harm or attempt to harm anyone, burglary was a deportable offense.

In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under §16(b). “[B]y its nature,” the Board reasoned, the offense “carries a substantial risk of the use of force.” Dimaya sought review in the Court of Appeals for the Ninth Circuit.

The Ninth Circuit Court of Appeals—which hears federal appeals from Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon, and Washington—determined on the basis of a prior Supreme Court case, Johnson v. United States, concerning the definition of a “violent felony,” that the residual clause is unconstitutionally vague. The Supreme Court, led by Kagan, agreed.

“The prohibition of vagueness in criminal statutes,” our decision in Johnson explained, is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have “fair notice” of the conduct a statute proscribes.

In other words, the residual clause creates an unconstitutional amount of uncertainty because, to paraphrase another portion of the opinion, that standard means you’d not know how to measure risk nor the amount of risk that would qualify actions as an aggravated felony.

Though much has been made of Gorsuch aligning with the four liberal justices, he’s just following in predecessor Antonin Scalia’s footsteps. Scalia wrote Johnson. As is his wont, Gorsuch harkens back to the Revolution in his first sentence and barely waits a page before citing Scalia.

It’s more notable that Gorsuch was the only conservative in the majority given that Johnson was decided 8-1 with Justice Samuel Alito as the lone holdout. The difference here, according to Chief Justice John Roberts, joined by Clarence Thomas, Anthony Kennedy, and Alito, is that this clause creates less uncertainty than did the clause at issue in Johnson. Roberts considers the residual clause adequately specific because of its direction to consider the potential risk of injury, the risk that the offender will use force against a person or property, and the requirement that the risk arise during the offense.

The most likely explanation for the distinction—aside from immigrant-specific sentiment—is that Gorsuch lacks Scalia’s gravitas within his own right-leaning bloc, even when parroting Scalia’s reasoning,

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