The US Supreme Court [official website] held 5-4 [opinion, PDF] Tuesday that the term “aggravated felony” in the Immigration and Nationality Act (INA) [text], as it relates to §16(b) of the federal criminal code [text], is “unconstitutionally void for vagueness” under the Fifth Amendment‘s [GPO backgrounder] Due Process Clause.

Section 1227(a)(2)(A)(3) of the INA provides: “Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien [has been] … convicted of an aggravated felony at any time after admission.” The phrase “aggravated felony” is used twice more in the INA in §§ 1229b(a)(3) and 1229b(b)(1)(C). Section 1101 further defines “aggravated felony” as including “a crime of violence” as defined in § 16(b) of the federal criminal code for which the term of imprisonment is at least one year.

The case in question here involved James Dimaya, a lawful permanent resident, with two convictions for first-degree burglary under California law. Following a second offense, the federal government moved to deport Dimaya as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under § 16(b) of the federal criminal code.

While Dimaya’s appeal was pending in the US Court of Appeals for the Ninth Circuit, the Supreme Court provided its judgment in Johnson v. United States [JURIST report] that involved a similar residual clause in the Armed Career Criminal Act (ACCA), which defined “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

There, the court held ACCA’s residual clause created “grave uncertainty” about how to estimate the risk posed by a crime because it “tie[d] the judicial assessment of risk to a speculative hypothesis about the crime’s ‘ordinary case,'” providing no guidance on the determination of what that ordinary case was. Noting the indeterminacy about how to measure risk and what it takes for a crime to qualify as a violent felony, the court held that the clause created “more unpredictability and arbitrariness than the Due Process Clause tolerates.

Using that case’s holding as a premise, Justice Elena Kagan wrote for the majority:

Section 16’s residual clause violates that promise in just the same way. To begin where Johnson did, § 16(b) also calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk. The Government explicitly acknowledges that point here. … Nothing in §16(b) helps courts to perform that task, just as nothing in ACCA did. We can as well repeat here what we asked in Johnson: How does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct? … §16(b) also possesses the second fatal feature of ACCA’s residual clause: uncertainty about the level of risk that makes a crime “violent.” … In sum, § 16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague.” It too “requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

Justice Neil Gorsuch, providing the fifth vote for the majority, wrote a separate concurring opinion pointing to the vagueness of the residual clause in § 16(b) of the federal criminal code and the term “aggravated felony” as inviting so capa­cious a construction as the crime of treason in English law where “the mere expression of disfavored opinions could invite transportation or death.” Chief Justice John Roberts dissented, stating that “§ 16(b) does not present the same ambiguities” as those present in the Johnson case. Justices Anthony Kennedy, Clarence Thomas and Samuel Alito joined in Roberts’ dissent.