This “substantial risk” provision is part of a long litany of aggregated felony definitions, some nonviolent, that require deportation under federal law. Murder, rape and a range of other violent acts are separate from the “substantial risk” provision that the court invalidated, said Rose Cahn, an attorney with the Immigrant Legal Resource Center in San Francisco.
An immigration judge—whose discretionary power is limited—and subsequently, the Board of Immigration Appeals turned down Dimaya’s appeal. But the 9th Circuit Court of Appeals —followed by the U.S. Supreme Court — agreed with Dimaya that the “substantial risk” provision was vague and violated due process. To the surprise of some, Justice Neil M. Gorsuch, who was appointed by President Donald Trump, joined with more liberal justices in the majority.
As Kevin Johnson, an immigration law professor at the University of California at Davis explains, the court referred to its ruling in 2015 that a federal crime act’s “similarly worded definition of ‘violent felony’ was so vague as to violate the due process clause.”
The vague nature of language declaring that a crime “by nature” could be a crime of violence leaves courts guessing about the relevant threshold, the majority found. “Does a car burglary qualify as a violent felony?” Justice Elena Kagan wrote. “Some courts say yes, others say no.”
“How about evading arrest?” she also asked. Gorsuch wrote in a concurring opinion that the provision leaves “people to guess about what the law demands—and leaves judges to make it up.”
Upset with the decision, a White House press release urged Congress to close “loopholes” or the government “will be unable to remove from our communities many noncitizens convicted of violent felonies” that can include “domestic assault and battery, burglary and child abuse.”
But Cahn said that officials do have a long list of offenses that under the law definitively constitute crimes of violence or other deportable offenses that can continue to be invoked to deport convicted felons.
She said this latest ruling could mean that some legal immigrants currently facing deportation due to the “substantial risk” provision could now argue that they should not be subject to mandatory deportation. They could ask judges, she said, to consider what’s called “discretionary relief” from deportation based on how long they’ve been here, their history and the impact that permanent deportation could have on a family and other circumstances.
This latest ruling, Cahn said, “reinforces that due process still matters. We cannot make people suffer lifelong immigration consequences for something that is not clearly defined under law.”
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