DiMaya challenged a provision of the Immigration and Nationality Act that requires almost automatic deportation of any alien—documented or not—who is convicted of an “aggravated felony.” That term, according to the statute, includes a serious “crime of violence” as defined in another federal statute, 8 U.S.C. § 16. That statute, in turn, offers two definitions of “crime of violence”; one is any crime that by legal definition includes violence or force (for example, attempted murder); the second definition, contained in § 16(b), covers any serious crime that “by its nature, involves a substantial risk that physical force … may be used in the course of committing the offense.”
DiMaya challenged 16(b), known as the “residual clause.” What does “by its nature” mean? The Court’s five-justice majority, including Gorsuch, said, in effect, that they can’t figure it out either—and a statute that judges can’t understand is, under long-established doctrine, “void for vagueness.” A void statute violates constitutional due process for two reasons. First, it doesn’t provide “notice” of what conduct will violate it; and, second, it permits judges to “make law” by deciding cases based on subjective interpretation alone.
James DiMaya, a native of the Philippines who has been a lawful permanent resident for 25 years, was convicted twice of first-degree burglary in California. An immigration judge ruled that burglary was an “aggravated felony” under 16(b) and ordered DiMaya deported.
But in 2015, while his case was pending, the Supreme Court struck down as vague a provision of another statute, the Armed Career Criminal Act; that provision imposed a longer criminal sentence on anyone convicted of three “violent felonies,” defined as posing “a serious potential risk of physical injury to another.” DiMaya cited that case and brought a vagueness challenge to 16(b); on Tuesday, the majority held that despite slightly different wording, 16(b) is also vague, and void.
In order to apply 16(b), previous courts had said, a judge must analyze how much risk of violence is posed by the “ordinary case” of a given crime. I wouldn’t know how to do that; neither, said the Court majority, do they.
Chief Justice John Roberts wrote a dissent for himself and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. He pointed out that the wording of the ACCA is different from that of 16(b). For example, the ACCA had used the phrase “serious potential risk,” while 16(b) said only “substantial risk.”Roberts found two other verbal distinctions between the two statutes; the three combined, he claimed, rendered 16(b) not vague. I could explain those too, but, reader, do you really want me to? Word games are never the chief’s best work; I read them so you don’t have to. Kagan good-naturedly wrote that adopting Roberts’s reading “would be slicing the baloney mighty thin.”