Dimaya v. Lynch, No. 11–71307.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT, Circuit Judge
Citation803 F.3d 1110
PartiesJames Garcia DIMAYA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
Decision Date19 October 2015
Docket NumberNo. 11–71307.

803 F.3d 1110

James Garcia DIMAYA, Petitioner
v.
Loretta E. LYNCH, Attorney General, Respondent.

No. 11–71307.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 2015.
Filed Oct. 19, 2015.


803 F.3d 1111

Andrew M. Knapp (argued), Southwestern Law School, Los Angeles, CA, for Petitioner.

Nancy Canter (argued) and Jennifer Khouri, Trial Attorneys; Stuart F. Delery, Assistant Attorney General; Jennifer P. Levings, Senior Litigation Counsel, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Sejal Zota (argued), National Immigration Project of the National Lawyers Guild, Boston, MA, for Amici Curiae Immigrant Legal Resource Center, Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A043–888–256.

Before: STEPHEN REINHARDT, KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge REINHARDT ; Dissent by Judge CALLAHAN.

OPINION

REINHARDT, Circuit Judge:

Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a “crime of violence” as defined by 8 U.S.C. § 1101(a)(43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the Armed Career Criminal Act's (“ACCA”) so-called “residual clause” definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA's residual clause that is incorporated into § 1101(a)(43)(F)'s definition of a crime of violence is also void for vagueness. We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.

I

Petitioner, a native and citizen of the Philippines, was admitted to the United States in 1992 as a lawful permanent resident. In both 2007 and 2009, petitioner was convicted of first-degree residential burglary under California Penal Code section 459 and sentenced each time to two years in prison. If a non-citizen is convicted of an aggravated felony, he is subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). Citing petitioner's two first-degree burglary convictions, the Department of Homeland Security (“DHS”) charged that petitioner was removable because he had been convicted of a “crime of violence ... for which the term of imprisonment [was] at least one year”—an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).1 That statute

803 F.3d 1112

defines a “crime of violence” by reference to 18 U.S.C. § 16, which provides the following definition:

(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.

The Immigration Judge (IJ) agreed with DHS that first-degree burglary in California is a crime of violence. Citing § 16(b) and United States v. Becker, 919 F.2d 568, 573 (9th Cir.1990), the IJ explained that “unlawful entry into a residence is by its very nature an offense where is apt to be violence [sic], whether in the efforts of the felon to escape or in the efforts of the occupant to resist the felon.” Because the charging documents for each conviction alleged an unlawful entry, and because the term of imprisonment for each conviction was greater than one year, the IJ determined that these convictions were crimes of violence. On the basis of this conclusion, the IJ held that petitioner was removable and ineligible for any relief. The BIA dismissed petitioner's appeal on the same ground. Citing § 16(b) and Becker, the BIA concluded that “[e]ntering a dwelling with intent to commit a felony is an offense that by its nature carries a substantial risk of the use of force,” and therefore affirmed the IJ's holding that petitioner was convicted of a crime of violence.2

Petitioner filed a timely petition with this Court for review of the BIA's decision. After the parties argued this case, the United States Supreme Court decided Johnson and, because the definition of a crime of violence that the BIA relied on in this case is similar to the unconstitutional language in ACCA's residual clause,3 we ordered supplemental briefing and held a supplemental oral argument regarding whether § 16(b), as incorporated into the INA, is also unconstitutionally vague. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law, including whether language in the immigration statutes is void for vagueness. See Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th Cir.2013). That question, as a pure question of law, receives de novo review from this Court. Aguilar–Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010).

II

The Fifth Amendment's Due Process Clause “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Alphonsus, 705 F.3d at 1042 (quoting Kolender

803 F.3d 1113

v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ). Although most often invoked in the context of criminal statutes, the prohibition on vagueness also applies to civil statutes, including those concerning the criteria for deportation. Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (“Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.”); see also A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239, 45 S.Ct. 295, 69 L.Ed. 589 (1925) (“The defendant attempts to distinguish [prior vagueness] cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions.”).

Previously, we have recognized the vagueness doctrine's applicability in the context of withholding of removal “because of the harsh consequences attached to ... denial of withholding of removal.” Alphonsus, 705 F.3d at 1042 (citing Jordan, 341 U.S. at 230–31, 71 S.Ct. 703 ). In this case, Petitioner challenges a statute as unconstitutionally vague in the context of denial of cancellation of removal.

For due process purposes, this context is highly analogous to denial of withholding of removal because both pose the harsh consequence of almost certain deportation. Under withholding of removal, a non-citizen who is otherwise removable cannot be deported to his home country if he establishes that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.”8 U.S.C. § 1231(b)(3)(A). Under cancellation of removal, immigration authorities may cancel the removal of a lawful permanent resident who satisfies certain criteria based on length of residency, good behavior, and exceptional hardship. Id. § 1229b(b)(1). Non-citizens who commit certain criminal offenses are ineligible for these forms of relief. See id. §§ 1231(b)(3)(B)(ii), 1229b(b)(1)(C). As with denial of withholding of removal, then, denial of cancellation of removal renders an alien ineligible for relief, making deportation “a virtual certainty.” United States v. Bonilla, 637 F.3d 980, 984 (9th Cir.2011).

The government argues that our circuit's reliance on Jordan “is misguided as Jordan did not authorize vagueness challenges to deportation statutes.” We find this suggestion baffling. Jordan considered whether the term “crime involving moral turpitude” in section 19(a) of the Immigration Act of 1917, a type of offense that allowed for a non-citizen to “be taken into custody and deported, ” was void for vagueness. 341 U.S. at 225–31, 71 S.Ct. 703 (emphasis added). In considering this challenge, the Court explicitly rejected the argument that the vagueness doctrine did not apply. Id. at 231, 71 S.Ct. 703. The government also argues that subsequent Supreme Court decisions rejected due process challenges to various immigration statutes. See Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) ; Galvan v. Press, 347 U.S. 522, 530–31, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ; Harisiades v. Shaughnessy, 342 U.S. 580, 588–91, 72 S.Ct. 512, 96 L.Ed. 586 (1952). None of these cases, however, suggests that the Due Process Clause does not apply to deportation proceedings. Nor could they, for it “is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Demore v. Kim, ...

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    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 9, 2017
    ...808 F.3d 719, 723 (7th Cir. 2015) (applying Johnson to find language identical to § 924(c) void for vagueness), and Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (same), with United States v. Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016) (declining to find § 924(c) void for vagueness ......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...an increased sentence under the ACCA's residual clause violates due process. 135 S.Ct. at 2557. On October 19, 2015, in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the Ninth Circuit extended Johnson II to a materially identical residual clause in 18 U.S.C. § 16, which defined a "crime o......
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 25, 2017
    ...Court is currently considering a constitutional vagueness challenge to Section 16(b) in the wake of Johnson . See Dimaya v. Lynch , 803 F.3d 1110 (9th Cir. 2015), cert. granted , ––– U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016). For now, though, Leocal 's recognition—that courts may more......
  • United States v. Simms, No. 15-4640
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    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 24, 2019
    ...Johnson was decided in 2015. Indeed, the Ninth Circuit held § 16(b) unconstitutionally vague four months later. See Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015), aff’d sub nom. Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). But a full year thereafter, t......
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  • United States v. Hill, No. 14-3872-cr
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    • U.S. Court of Appeals — Second Circuit
    • August 3, 2016
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    • July 31, 2017
    ...that the residual clause in § 924(c)(3)(B) is unconstitutionally vague for the reasons explained in Johnson II. See Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015) (holding the residual clause of 18 U.S.C. § 16(b), which is virtually identical to § 924(c)(3)(B), unconstitutionally vag......
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    • July 25, 2017
    ...Court is currently considering a constitutional vagueness challenge to Section 16(b) in the wake of Johnson . See Dimaya v. Lynch , 803 F.3d 1110 (9th Cir. 2015), cert. granted , ––– U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016). For now, though, Leocal 's recognition—that courts may more......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...an increased sentence under the ACCA's residual clause violates due process. 135 S.Ct. at 2557. On October 19, 2015, in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the Ninth Circuit extended Johnson II to a materially identical residual clause in 18 U.S.C. § 16, which defined a "cr......
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