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SCOTUS Rules Deportation for 'Violent' Felons Unconstitutional

By George Khoury, Esq. on April 17, 2018 | Last updated on March 21, 2019

While it has long been a practice of the United States to deport non-citizens who commit a violent felony, what qualifies as a crime of "violence" has been a moving target. As the High Court's opinion in Session v. Dimaya explained, the federal statute requiring deportation defines violent crime in a way that is unconstitutionally vague.

The defendant in the deportation action, James Garcia Dimaya, was convicted of burglary in California. As the majority notes, in some courts, this is considered a violent crime, while in others it is not. Dimaya argued successfully to a lower court that the law was unconstitutionally broad, as his crime resulted in no injuries to his victims. And while Justice Kagan penned the ruling, interestingly, it was Justice Gorsuch's concurring opinion that swung the decision in Dimaya's favor.

Vague Laws Invite Arbitrary Power

As Gorsuch explained in his concurrence, "vague laws invite arbitrary power." He further added that "the law's silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more."

Despite Justice Gorsuch's singular understanding, which some highlight would do Justice Scalia proud, the Court was generally divided along the usual partisan lines. Justices Kagan, Sotomayor, Ginsberg, and Breyer agreed that the law was unconstitutional, while Justices Thomas, Kennedy, Alito, and Roberts disagreed.

The dissent, authored by Justice Roberts argues that the ruling extended the Court's past precedent in Johnson too far, and that Johnson was not meant to be applied in such a way. That case similarly found a provision of the ACCA to be invalid because it was unconstitutionally broad. Roberts disagreed with the ruling in Johnson and further warned that extending Johnson to the INA provision would cause significant consequences.

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