Sessions v. Dimaya

ARE CIVIL STATUTES GOVERNING DEPORTATION SUBJECT TO THE STANDARD OF VAGUENESS APPLICABLE TO CRIMINAL LAWS?

The government argues that deportation laws, which are civil rather than criminal matters, are not subject to the vagueness doctrine as it is applied to criminal laws and are instead subject to a less strict version of the doctrine. The government notes that since the Court first struck down a statute under the vagueness doctrine, the Court has described the doctrine as a limitation on criminal statutes. Further, the government asserts that while the Court has analyzed whether civil statutes fail under the vagueness doctrine, these cases, including one challenging an immigration statute, reflect the Court’s understanding that the doctrine is less strict in the context of civil cases than in criminal cases. The Court’s decision in Jordan v. De George, 341 U.S. 223 (1951), is consistent with and reinforces this distinction between the vagueness doctrine in civil and criminal cases. While the Court in that case analyzed an immigration statute under the standard of vagueness applicable to criminal laws, the government asserts that the Court did not hold that the same standard applies to all civil deportation statutes. It also contends that subjecting civil deportation statutes to a less strict vagueness standard still comports with the due process concerns of the vagueness doctrine—providing fair notice of the punishable conduct and avoiding arbitrary enforcement. The government argues that because the Court has held that Congress may retroactively subject an alien to removal based on a past criminal conviction, an alien has no constitutional expectation of fair notice of the conduct for which he or she may be removed. Further, the government asserts that the framework under which the executive branch administers the Immigration and Nationality Act reduces the potential for arbitrary interpretation or enforcement.

The government then contends that though the Court has not yet established a vagueness standard for civil cases, its decisions suggest a general principle that is appropriate for deportation proceedings. Under this principle, the Court should consider whether the statute at issue is so unintelligible that it is not a rule at all. It then argues that 18 U.S.C. § 16(b) is not unconstitutionally vague under this standard because its language is plainly intelligible, as shown by the fact that lower courts have applied it without concern for over three decades. Further, the government contends that the Court should apply this standard because § 16(b) operates as an element of a civil rather than criminal provision in this case.

Dimaya, however, argues that the criminal vagueness standard applies in the deportation context. In support of this argument, Dimaya looks to Jordan, in which the Court applied the criminal vagueness standard to a deportation statute because of the grave nature of deportation. Dimaya notes that every circuit court to address this issue has followed Jordan. Dimaya further argues that this is the correct vagueness standard in this case because though deportation is a civil matter, § 16(b) is a criminal statute, is part of the criminal code, and has criminal applications. Dimaya also asserts that deportation laws have severe consequences and punitive characteristics that put them on par with criminal statutes. Further, Dimaya claims that the Court rejects drawing a sharp line between vagueness standards for civil and criminal statutes and instead focuses on the severity of the consequences of any vagueness in the statute when determining the standard to apply. Dimaya also asserts that vagueness in deportation statues raises the same due process concerns that underlie vagueness in the criminal context. Dimaya alleges that noncitizens should have fair notice as to which offenses will result in mandatory, permanent deportation and that arbitrary enforcement is a concern because though the Board of Immigration Appeals reviews immigration cases, courts do not defer to the Board’s interpretation of criminal provisions, and Board decisions themselves are often conflicting.

Dimaya then argues that the Court should not overrule Jordan and apply the government's suggested, lesser version of the vagueness standard because if the Court did so in this case, § 16(b) could be valid in deportation proceedings but invalid in criminal proceedings. Though Dimaya concedes that less punitive civil statutes can be subject to a less strict vagueness standard, Dimaya also contends that a single statute with civil and criminal applications, like § 16(b), is either vague or not across all contexts. In support, Dimaya notes that the Court treats civil and criminal applications of a statute equally when applying the lenity doctrine, from which the vagueness doctrine evolved.

IS 18 U.S.C. § 16(b) UNCONSTITUTIONALLY VAGUE UNDER THE CRIMINAL VAGUENESS STANDARD?

Though the government argues that the Court should not apply the criminal vagueness standard to the deportation statute at issue in this case, it also argues that if the Court does decide to apply this standard, § 16(b) is not unconstitutionally vague under it. It contends that three textual features of § 16(b) make its application more precise, predictable, and administrable than the Armed Career Criminal Act (“ACCA”) residual clause that the Court found to be unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015). First, it claims that § 16(b) does not ask courts to imagine risks potentially arising after an offense is completed, a critical aspect of the Court’s vagueness holding in Johnson. Second, it asserts that § 16(b)’s requirement of a risk that physical force may be used during the course of committing an offense is more concrete than the ACCA residual clause’s reference to any conduct that could result in physical injury. Third, it claims that because § 16(b) does not contain a list of example crimes, courts applying it will not have to reconcile the different risks entailed in the examples, a task that the Johnson Court found to generate confusion. The government also argues that § 16(b)’s requirement of a categorical rather than case-specific consideration of the substantial risk of the use of force does not make it unconstitutionally vague because the term “substantial risk” commonly appears in the law, and the requirement does not violate due process.Lastly, the government claims that § 16(b) has not produced interpretative confusion in the courts, unlike ACCA’s residual clause.

Dimaya contends, however, that § 16(b) is unconstitutionally vague under the criminal vagueness standard because it has the same features that made the ACCA residual clause unconstitutionally vague in Johnson—it requires a determination of what kind of conduct the ordinary case of a crime involves, which is then assessed under an “imprecise” risk standard. Dimaya then notes that in Johnson, the government recognized that § 16(b) is equally susceptible to the vagueness objections to the ACCA residual clause and argues that the government’s new position on § 16(b) in this case lacks merit. Responding to the government's claim of three textual differences between the two statutes, Dimaya first counters that § 16(b)’s “in the course of committing the offense” language does not provide more clarity because the Court has rejected the interpretation that this language creates a temporal restriction on a court’s analysis under it. Dimaya then contends that “physical force” in § 16(b) is at least as vague as “physical injury” in the ACCA residual clause because the Court often treats the terms interchangeably, and Dimaya also argues that “force” is in fact more vague because it may “come and go without a trace” while an injury necessarily leaves an observable condition. Dimaya also asserts that § 16(b)’s lack of specific examples makes it more vague than the ACCA residual clause because this makes it an even broader provision. Lastly, Dimaya claims that § 16(b) has generated substantial confusion and supports this claim by noting the different approaches courts have taken to imagining what the hypothetical ordinary case of a car burglary, statutory rape, and evading arrest looks like. Dimaya also notes that courts have treated the two provisions and the interpretive confusion they create as analogous, applying ACCA cases to § 16(b) cases and vice versa.