Sessions v. Dimaya, No. 15–1498.

• Court: United States Supreme Court
• Citation: 138 S.Ct. 1204,200 L.Ed.2d 549
• Decision Date: 17 April 2018
• Parties: Jefferson B. SESSIONS, III, Attorney General, Petitioner v. James Garcia DIMAYA.
• Docket Number: No. 15–1498.

138 S.Ct. 1204
200 L.Ed.2d 549

Jefferson B. SESSIONS, III, Attorney General, Petitioner
v.
James Garcia DIMAYA.

No. 15–1498.

Supreme Court of the United States

Argued Jan. 17, 2017.
Reargued Oct. 2, 2017.
Decided April 17, 2018.

Edwin S. Kneedler, Washington, D.C., for Petitioner.

E. Joshua Rosenkranz, New York, NY, for Respondent.

Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, John F. Bash, Assistant to the Solicitor General, Donald E. Keener, Bryan S. Beier, Attorneys, Department of Justice, Washington, D.C., for Petitioner.

Andrew Knapp, Southwestern Law School, Los Angeles, CA, E. Joshua Rosenkranz, Thomas M. Bondy, Brian P. Goldman, Naomi J. Mower, Randall C. Smith, Ned Hirschfeld, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Respondent.

Justice KAGAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, and an opinion with respect to Parts II and IV–A, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. See 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

I

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an "aggravated felony" after entering the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See §§ 1229b(a)(3), (b)(1)(C). Accordingly,

138 S.Ct. 1211

removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.

The INA defines "aggravated felony" by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. § 1101(a)(43) ; see Luna Torres v. Lynch, 578 U.S. ––––, ––––, 136 S.Ct. 1619, 1623, 194 L.Ed.2d 737 (2016). According to one item on that long list, an aggravated felony includes "a crime of violence (as defined in section 16 of title 18...) for which the term of imprisonment [is] at least one year." § 1101(a)(43)(F). The specified statute, 18 U.S.C. § 16, provides the federal criminal code's definition of "crime of violence." Its two parts, often known as the elements clause and the residual clause, cover:

"(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."

Section 16(b), the residual clause, is the part of the statute at issue in this case.

To decide whether a person's conviction "falls within the ambit" of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). The question, we have explained, is not whether "the particular facts" underlying a conviction posed the substantial risk that § 16(b) demands. Ibid. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers.¹ The § 16(b) inquiry instead turns on the "nature of the offense" generally speaking. Ibid. (referring to § 16(b)'s "by its nature" language). More precisely, § 16(b) requires a court to ask whether "the ordinary case" of an offense poses the requisite risk. James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ; see infra, at 1213 - 1214.

In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. See Cal. Penal Code Ann. §§ 459, 460(a). Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a "crime of violence" under § 16(b). "[B]y its nature," the Board reasoned, the offense "carries a substantial risk of the use of force." App. to Pet. for Cert. 46a. Dimaya sought review in the Court of Appeals for the Ninth Circuit.

While his appeal was pending, this Court held unconstitutional part of the definition of "violent felony" in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). ACCA prescribes a 15–year

138 S.Ct. 1212

mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a "violent felony." § 924(e)(1). The definition of that statutory term goes as follows:

"any crime punishable by imprisonment for a term exceeding one year ... that—

"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. " § 924(e)(2)(B) (emphasis added).

The italicized portion of that definition (like the similar language of § 16(b) ) came to be known as the statute's residual clause. In Johnson v. United States, the Court declared that clause "void for vagueness" under the Fifth Amendment's Due Process Clause. 576 U.S., at ––– –-––––, 135 S.Ct., at 2561–2563.

Relying on Johnson , the Ninth Circuit held that § 16(b), as incorporated into the INA, was also unconstitutionally vague, and accordingly ruled in Dimaya's favor. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (2015). Two other Circuits reached the same conclusion, but a third distinguished ACCA's residual clause from § 16's.² We granted certiorari to resolve the conflict. Lynch v. Dimaya, 579 U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016).

II

"The prohibition of vagueness in criminal statutes," our decision in Johnson explained, is an "essential" of due process, required by both "ordinary notions of fair play and the settled rules of law." 576 U.S., at ––––, 135 S.Ct., at 2557 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) ). The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have "fair notice" of the conduct a statute proscribes. Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. See Kolender v. Lawson, 461 U.S. 352, 357–358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In that sense, the doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not. Cf. id., at 358, n. 7, 103 S.Ct. 1855 ("[I]f the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department" (internal quotation marks omitted)).

The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case. See Brief for Petitioner 13–15. As the Government notes, this Court has stated that "[t]he degree of vagueness that the Constitution [allows] depends in part on the nature of the enactment": In particular, the Court has "expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Hoffman Estates v. Flipside, Hoffman Estates,

138 S.Ct. 1213

Inc., 455 U.S. 489, 498–499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U.S. 387, 396, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Hence, the Government claims, the need for clarity is not so strong; even a law too vague to support a conviction or sentence may be good enough to sustain a deportation order. See Brief for Petitioner 25–26.

But this Court's precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases. In Jordan v. De George, we considered whether a provision of immigration law making an alien deportable if convicted of a "crime involving moral turpitude" was "sufficiently definite." 341 U.S. 223, 229, 71 S.Ct. 703, 95 L.Ed. 886 (1951). That provision, we noted,...