In a decision issued on April 17, 2018, the Supreme Court ruled that 18 U.S.C. § 16(b), as incorporated into the aggravated felony definition in section 101(a)(43)(F) of the Immigration and Nationality Act (INA) was unconstitutionally vague, affirming a circuit court decision. The Court's decision will potentially have a significant effect as relates to aliens convicted of crimes that endanger the public.
Section 101(a)(43)(F) of the INA defines "aggravated felony" as follows:
[A] crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.
The referenced criminal provision, 18 U.S.C. § 16, in turn, states:
The term "crime of violence" means—
(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.
As noted, it was subsection 16(b) that was at issue in the Supreme Court case. The Court noted:
"The prohibition of vagueness in criminal statutes," . . . 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. And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. In that sense, the doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not.
(Internal citations omitted). It concluded that: "§16(b) 'produces more unpredictability and arbitrariness than the Due Process Clause tolerates.'"
Justice Gorsuch issued a concurrence in that case, in which he more pointedly stated:
Before holding a lawful permanent resident alien . . . subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien's crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law's silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.
Notwithstanding the merits of the Court's decision, the decision itself could have serious consequences as it relates to the removability of otherwise dangerous aliens. Specifically, certain burglary, indecent assault and battery, stalking, and manslaughter convictions will no longer render an alien removable.
Critics of the president's immigration policies (including them many members of Congress) frequently argue that U.S. Immigration and Customs Enforcement should focus on criminal aliens, not aliens whose only crime is illegal entry. Plainly, Congress can, and needs to, act to plug the holes created by the Supreme Court's decision. As Justice Gorsuch stated in his concurrence:
Just as Blackstone's legislature passed a revised statute clarifying that "cattle" covers bulls and oxen, Congress remains free at any time to add more crimes to its list. It remains free, as well, to write a new residual clause that affords the fair notice lacking here. Congress might, for example, say that a conviction for any felony carrying a prison sentence of a specified length opens an alien to removal. Congress has done almost exactly this in other laws. . . . What was done there could be done here.
Those members of Congress most critical of the removal of "non-criminal" aliens should be the first to propose that fix.