Is Conviction for "Crimes of Violence" too Unconstitutionally Vague a Standard for Deportation?

By Dan Cadman on October 11, 2016

In an earlier blog posting, I mentioned that during its current term, the Supreme Court will be reviewing and deciding an immigration-related case having to do with birthright citizenship.

But that isn't the only immigration matter that the high court will hear this term. It will also be considering the question of whether the phrase "crime of violence", as used in its immigration enforcement context, is unconstitutionally vague.

Section 101(a)(43) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1101(a)(43), provides that an alien convicted of an "aggravated felony" is deportable and, equally important, is also ineligible for relief from deportation, for instance through withholding of removal, or cancellation of removal for resident aliens convicted of some offenses.

Aggravated felonies include convictions for "a crime of violence ... as defined in section 16 of title 18 ... for which the term of imprisonment is at least one year."

18 U.S.C. § 16, in turn, has this to say:

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.


That seems straightforward enough, but here's where it gets tricky: In past decisions, the Supreme Court has said that analysis of crimes to see if they meet a certain standard should ordinarily be done by the "categorical" method — that is to say, the judges or triers of fact consider the general category of crime and decide whether it fits into the standard, in this case the definition for a "crime of violence".

That's a snap if, say, the crime is assault with a deadly weapon or attempted murder. But what about burglary? In the case being presented, a resident alien was convicted on two different occasions of burglary. Is burglary inherently an offense that "involves a substantial risk that physical force against the person or property of another may be used"?

The immigration judge said yes, opining that by its nature, burglary is a crime in which a homeowner may be met with violence if the burglar is discovered or confronted. The Board of Immigration Appeals (BIA) also said yes. Then the Ninth Circuit Court of Appeals reversed the BIA and said no, holding that the phrase is unconstitutionally vague because the categorical method won't lead to consistent results. This led the government to appeal to the Supreme Court.

The case was probably accepted by the high court because the federal circuit courts of appeal that have dealt with the phrase are seriously split on whether it is unconstitutionally vague. Even the ordinarily conservative Fifth Circuit has held that it doesn't meet constitutional muster.

How the Supreme Court will resolve the dilemma is anyone's guess. To void the phrase entirely in order to bring consistency to the federal courts (as well as the immigration courts) would be to throw the baby out with the bath water. Is it in society's interest to have no connection between "aggravated felonies" and "crimes of violence"? Hardly. That doesn't seem to be a reasonable way forward.

If the Supreme Court does nullify the phrase as unconstitutionally vague, it would be left to Congress to act. Does anyone really expect that to happen in a hotly contested election year, or believe that this lame duck president (who has been profligate in recent days with his commutation of hundreds of sentences for federal prisoners, including convicts who used or possessed weapons in committing their offenses) would sign any amending legislation into law? The Court would essentially be washing its hands of the matter at the expense of the common weal.

One possibility might be to adopt use of a "modified categorical method" in judicial review of such cases. This would permit judges to look behind the mere statute for which an alien is convicted and delve into the particulars of the conduct that resulted in the conviction(s). For instance, was the alien in this case armed with a gun or a knife when he committed the burglaries? Alternately, did he possess burglar tools that could be used as weapons such as a crowbar or long jimmy? Did he in fact destroy property, such as breaking down doors, to gain access to the home(s)? How about the alien's rap sheet? Are there any prior arrests for offenses that would show a predilection for violence, such as assault and battery?

Let us hope the Court shows itself capable of striking a middle course that maintains public safety and protects American communities against dangerous alien felons — something both presidential candidates claim to want.