Author Archive | Anthony O'Rourke

Courtesy of Sentencing Resource Counsel Sissy Phleger.  (See yesterday’s post for a quick take on Dimaya‘s implications for the Second Circuit’s holding, in United States v. Elvin Hill, that § 924(c)(3)’s residual clause is not constitutionally vague).

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Today, in Sessions v. Dimaya, the Supreme Court struck down the residual clause in 18 U.S.C. § 16(b) as unconstitutionally vague. Kagan authored the opinion, joined by Ginsburg, Breyer, Sotomayor, and in operative part, Gorsuch. Though it turned on the constitutionality of § 16(b)—a broadly applicable criminal statute—the case itself was an immigration proceeding in which the petitioner was challenging his pending deportation for an aggravated felony. The definition of aggravated felony in the Immigration and Nationality Act includes crimes of violence defined by § 16(b). 8 U.S.C. § 1101(a)(43)(F).

Section 16(b) defines “crime of violence” as any felony “that, by its nature, involves a substantial risk that physical …

Today, in Sessions v. Dimaya, the Supreme Court held in a long-awaited, 5-4 opinion that the  residual clause definition of a “crime of violence” incorporated by the Immigration and Nationality Act (INA), 18 U.S.C. § 16(b), is unconstitutionally vague. Justice Kagan wrote the majority opinion, which Justice Gorsuch joined in relevant parts while also writing an opinion concurring in part and concurring in the judgment. The opinions are available here. We will try to provide a deeper account of Dimaya in the near future. In the meantime, here is a quick summary of the majority opinion and a take on its implications.

The INA makes non-citizens removable, and ineligible for cancellation of removal, if they have been convicted of an “aggravated felony” after entering the United States. 8 U.S.C. §§  1227(a)(2)(3), 1229(b)(a)(3), (b)(1)(C). The Act defines “aggravated felony” to include a “crime of violence” as defined under 18 …