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 U.S.C. § 16. This statute includes an “elements clause,” § 16(a), and a “residual clause,” § 16(b). Under the residual clause, a crime of violence includes “any . . . 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.” Id. This definition, the Court held, is unconstitutionally vague.
Such a conclusion, Justice Kagan writes, is compelled by Johnson v. United States (2015) (striking down the residual clause of the Armed Career Criminal Act (ACCA)). As with the ACCA’s residual clause, there are two features of § 16(b) that render it unconstitutionally vague: its “ordinary-case inquiry” and its “hazy risk threshold.” Dimaya, slip op. at 16. First, the residual clause requires judges to speculate as to whether the “ordinary case” of a crime involves a substantial risk of force. The clause, however, “‘offer[s] no reliable way to discern what the ordinary version of any offense look[s] like.” Id. at 8 (quoting Johnson). Second, the residual clause “leav[es] unclear what threshold level or risk made any given crime a ‘violent felony.'” Id. Together, these two features ensure that “§ 16(b) produces, as the ACCA’s residual clause did, ‘more unpredictability and arbitrariness than the Due Process Clause tolerates.'” Id. at 11 (quoting Johnson).
Dimaya‘s holding will likely extend beyond the INA. Section 16(b) is materially identical to the residual clause definition of “crime of violence” under 18 U.S.C. § 924(c)(3)(B). The Second Circuit rejected a vagueness challenge to § 924(c)’s residual clause in United States v. Elvin Hill. The Chief Justice’s dissenting opinion in Dimaya speculates, however, that convictions under § 924(c)’s residual clause are now called into question.
The Dimaya majority is silent as to the implications of its holding for § 924(c)’s residual clause, but the logic of its analysis seems to require that the clause be struck down. For example, in Dimaya the majority rejected the government’s argument that minor textual discrepancies between the ACCA’s residual clause and § 16(b) made the latter more determinate. As the Court explained, none of the differences between the two clauses “relates to the pair of features—the ordinary-case inquiry and the hazy risk threshhold—that Johnson found to produce impermissible vagueness.” Slip op. at 16. Likewise, there appear to be no structural or semantic differences between § 16(a) and § 924(c)(3)(B) that relate to the pair of problematic features that rendered § 16(b) unconstitutional.
The Supreme Court’s next orders list will provide more information, particularly if the Court GVRs any § 924(c) petitions in light of Dimaya.