828 F.3d 440 (6th Cir. 2016), 15-3835, Shuti v. Lynch

Docket Nº:15-3835
Citation:828 F.3d 440
Opinion Judge:COLE, Chief Judge.
Party Name:ALTIN BASHKIM SHUTI, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent
Attorney:Russell Reid Abrutyn, Marshal E. Hyman, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioner. Briena L. Strippoli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Ami...
Judge Panel:Before: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.
Case Date:July 07, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

Shuti, from Albania, entered the U.S. as a permanent resident in 2008 at age 13. In 2014, Shuti and some friends committed a “larceny of marijuana.” Shuti pleaded guilty to felony unarmed robbery, defined as “larceny of any money or other property” accomplished by “force or violence against any person” or “assault[ing] or put[ting] the person in fear.” Mich. Comp. Laws 750.530. Shuti was sentenced... (see full summary)

 
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828 F.3d 440 (6th Cir. 2016)

ALTIN BASHKIM SHUTI, Petitioner,

v.

LORETTA E. LYNCH, Attorney General, Respondent

No. 15-3835

United States Court of Appeals, Sixth Circuit

July 7, 2016

On Petition for Review from the United States Board of Immigration Appeals. No. A060 254 668.

ON BRIEF:

Russell Reid Abrutyn, Marshal E. Hyman, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioner.

Briena L. Strippoli, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amicus Curiae.

Before: COLE, Chief Judge; CLAY and GIBBONS, Circuit Judges.

OPINION

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COLE, Chief Judge.

In Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held the Armed Career Criminal Act's residual definition of " violent felony" void for vagueness. 18 U.S.C. § 924(e)(2)(B)(ii). In this case, we consider whether that pathmarking decision applies to the Immigration and Nationality Act's parallel definition of " crime of violence," a phrase that encompasses any felony 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." 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b). We conclude that the wide-ranging inquiry required by these two statutory phrases are one and the same, and therefore hold that the immigration code's residual clause is likewise unconstitutionally vague.

I.

Petitioner Altin Bashkim Shuti, who hails from Albania, entered the United States as a lawful permanent resident in October 2008. He was 13 years old when his parents, who are now American citizens, decided to flee their home-country for fear of persecution at the hands of the Albanian Socialist Party.

Nearly six years later, in May 2014, Shuti and a few of his high-school cohorts allegedly committed a " larceny of marijuana" and " in the course of that conduct possessed a shotgun." Shuti pleaded guilty, for his part, to the lesser offense of felony unarmed robbery, defined under Michigan law as " larceny of any money or other property" accomplished by using " force or violence against any person who is present" or " assault[ing] or put[ting] the person in fear." Mich. Comp. Laws § 750.530.

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The state trial court sentenced Shuti to at least two and a half years in prison and, several months later, the Department of Homeland Security initiated removal proceedings against him.

Under the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1101 et seq., the Attorney General may remove certain classes of non-citizens from this country--for instance, those who have been convicted of crimes involving moral turpitude, firearms offenses, and various drug offenses. 8 U.S.C. § 1227(a)(2). In the ordinary course, a non-citizen may apply to immigration officials for discretionary relief from removal. See, e.g., 8 U.S.C. § § 1158 (asylum), 1229b (cancellation of removal), 1231(b)(3)(A) (withholding of removal). But aggravated felonies are different: if a non-citizen has been " convicted of an aggravated felony at any time after admission," 8 U.S.C. § 1227(a)(2)(A)(iii), he is ineligible for most forms of discretionary relief, 8 U.S.C. § § 1158(b)(2)(B)(i), 1229b(a)(3), 1231(b)(3)(B)(iv). Removal is " virtually inevitable" in such cases. See Padilla v. Kentucky, 559 U.S. 356, 360, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

The term " aggravated felony" is defined expansively under the INA. Among the numerous state and federal offenses that qualify, the immigration code lists " 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." 8 U.S.C. § 1101(a)(43)(F). This cross-reference, in turn, leads to the general criminal code, which defines a " crime of violence" as: (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.

18 U.S.C. § 16. We deal here with the provision's latter subsection.

In this case, the government alleged that Shuti's Michigan conviction was an aggravated felony. Shuti acquiesced to the charge, and opted to file an application for asylum, withholding of removal, and protection under the Convention Against Torture. He also maintained that his criminal attorney " never discussed" the immigration consequences of his state court plea. But in 2015, an immigration judge denied all discretionary relief and ordered Shuti removed to Albania.

The Board of Immigration Appeals (" BIA" ) affirmed. The BIA first determined that unarmed robbery was " categorically a crime of violence" as defined in 18 U.S.C. § 16(b). " [A]n individual who engages in robbery," the BIA opined, " clearly involves a substantial risk that physical force will be used in the ordinary case." For this proposition, the BIA relied on two analogous precedents: our decision in United States v. Mekediak, 510 Fed.Appx. 348, 353-54 (6th Cir. 2013) (applying U.S.S.G. § 4B1.2(a)(2)'s definition of crime of violence to Mich. Comp. Laws § 750.530), and the Seventh Circuit's decision in United States v. Tirrell, 120 F.3d 670, 681 (7th Cir. 1997) (applying 18 U.S.C. § 924(e)(2)(B)(ii)'s definition of violent felony to Mich. Comp. Laws § 750.530). Shuti responded that the BIA improperly comingled statutory definitions, but the agency skirted this minor " distinction." Matter of Francisco-Alonzo, 26 I. & N. Dec. 594, 597-98 (BIA 2015). That would have been the last word. But while the appeal was pending, the Supreme Court handed down Johnson. Shuti argued, through supplemental briefing, that the INA's definition of crime of violence was unconstitutionally

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vague in light of this intervening precedent. The BIA balked, declaring that it " do[es] not address the constitutionality of the laws [it] administer[s]." Matter of G-K-, 26 I. & N. Dec. 88, 96 (BIA 2013). Nevertheless, the agency concluded that the void-for-vagueness doctrine simply does not apply to " civil" deportation proceedings.

We now grant Shuti's petition for review as to the " constitutional claim[]," 8 U.S.C. § 1252(a)(2)(D), and vacate the order of removal.1

II.

" No person," the Fifth Amendment says, " shall . . . be deprived of life, liberty, or property without due process of law." The Constitution's prohibition of vague laws springs from this well. Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510 (1914). A statute " so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement," Johnson, 135 S.Ct. at 2556, " violate[s] the fundamental principles of justice embraced in the conception of due process of law," Collins, 234 U.S. at 638. The Supreme Court has, for over a hundred years, reviewed legislation of all sorts on this basis. See, e.g., Johnson, 135 S.Ct. at 2557 (sentencing enhancement); Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (stop-and-identify statute); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (vagrancy ordinance); Int'l Harvester Co. of Am. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284 (1914) (price-control statute). And, in case after case, the Court has deployed the void-for-vagueness doctrine to strike down laws that violate this " first essential of due process." Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

Johnson applied these principles to the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e). Under that statute, any person who violates the federal felon-in-possession laws, 18 U.S.C. § 922(g), and has at least three prior convictions for a " violent felony" is subject to an enhanced 15-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). Congress defined violent felony, in relevant part, as any offense " punishable by imprisonment for a term exceeding one year" that " is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). This italicized portion of the definition is called the " residual clause," and the Johnson Court held it void for vagueness.

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To arrive at that conclusion, the Court emphasized " [t]wo...

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