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How the New SCOTUS Decision Striking Down A Law That Effectively Requires Mandatory Removal/ Deportation of Certain Felons Can Help You

Breaking News - SCOTUS Edition!

The U.S. Supreme Court (SCOTUS) has struck down part of the Immigration and Nationality Act (INA) that effectively renders certain felons subject to mandatory removal/deportation, by barring these felons from any relief from removal/ deportation. A decision like this means that many individuals with Orders of Removal/ Deportation may be able to file a Motion to Reopen his or her Immigration Case.

What law did SCOTUS strike down?

A part of the Immigration and Nationality Act (INA) that refers to types of criminal offenses that renders a person ineligible for relief from removal/ deportation. This effectively subjects an individual to mandatory deportation. SCOTUS found that INA §1101(a)(43)(F), which states that a “crime of violence” is an “aggravated felony” is void for vagueness.

The specific section found to be unconstitutional by SCOTUS in Sessions v. Dimaya renders any offense considered to be a “crime of violence” for which the term of imprisonment is at least one year to be an aggravated felony.

The section of the INA that refers to a “crime of violence” cross-references a federal criminal statute, 8 U.S.C. § 16(a)-(b). In this decision, SCOTUS found that a “crime of violence” as defined in §16(b) is void for vagueness.

What is an Aggravated Felony (AF)?

There is no actual definition of an AF anywhere in the INA or federal criminal code. The INA, however, lists a number of offenses and types of offenses, often cross-referenced with federal criminal statutes, that are considered an “aggravated felony.” See INA § 1101(a)(43)(A)-(U)

What is a “Crime of Violence?”

The INA references 18 U.S.C. § 16, a federal criminal statute, to define a “crime of violence.” It defines a “crime of violence” as:

(a) an offense that has an element the use, attempted use, or threatened use of physical force against a person or property of another,


(b) any other offense that is a felony and that, by its nature, includes a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

A “crime of violence” as defined in §16(a) is still valid, but as defined in §16(b) is not.

Why did SCOTUS find this section to be unconstitutional?

As Justice Gorsuch stated in his concurring opinion, “[v]ague laws invite arbitrary power.”

SCOTUS found this provision to be “void-for vagueness.” This means that this provision violates Due Process because it does not give ordinary people “fair notice” of the conduct a statute prescribes. In other words, the Constitution requires that ordinary people can understand what consequences and penalties will stem from their conduct. In order to do that, Congress must pass laws that clearly define what conduct will result in what penalty. Congress cannot pass a broad law and ask the courts to make this decision.

In this context, before an Immigration Judge can find that a lawful permanent resident is subject to removal for having committed a crime, the judge must first determine that the "ordinary case" of the alien’s crime of conviction involves a "substantial risk" that "physical force" may be used to commit that crime.

But what does this mean? Well, it depends. In this case, the California law at issue was about burglary, which covered everything from armed intruders to a door-to-door salesman peddling shady products. Both scenarios would render an individual guilty of burglary, but the former certainly involves a "substantial risk" that "physical force" will be used in the commission of the crime (the armed intruder), while the "ordinary case" involving a shady salesman would not involve a "substantial risk" that "physical force" would be used. Under the INA, the armed intruder and the shady salesman would both be order removed/ deported, even though the conduct involved in committing the crime is drastically different.

So, the statute struck down here required the immigration judge to guess what facts would fall under the “ordinary case of the crime of conviction” and then guess whether a “substantial risk” of “physical force” attends its commission. In declaring this provision unconstitutional SCOTUS determined that the provision leaves too much guessing to the judges.

What does this mean if you are in removal/ deportation proceedings or were previously ordered removed/ deported based on having been convicted of a “crime of violence?”

This decision means that if you are currently in removal/ deportation proceedings based on having committed a “crime of violence” and you thought there was no hope, there may now be! You may now be eligible for relief from removal that you were previously ineligible for because your conviction fell under the broad “crime of violence” category.

If you have previously been ordered removed/ deported, then you may be able to file a motion to reopen your case based on the this decision. You will need to act fast though because the INA requires motions to reopen to be filed within a reasonable time period!!

Regardless of if you are currently in removal/ deportation proceedings or if you have an order of removal/ deportation, you may be ineligible for relief for other reasons. Your best bet is to contact us IMMEDIATELY for a consultation. We always carefully review the facts of each case before we start filing expensive motions! We will not do anything in your case unless we believe that we can actually help you.

So contact an experienced immigration attorney at The Shapiro Law Firm, LLC today if you believe that this new ruling can help you!

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