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Deportation Law Too Vague, Rules Supreme Court

Ruling in a Bay Area case, the Supreme Court, with a crucial vote from Justice Neil Gorsuch, struck down a federal immigration law Tuesday that required deportation for any noncitizen convicted of a felony that posed a "substantial risk" of violence.

By Bob Egelko

Ruling in a Bay Area case, the Supreme Court, with a crucial vote from Justice Neil Gorsuch, struck down a federal immigration law Tuesday that required deportation for any noncitizen convicted of a felony that posed a "substantial risk" of violence.

The 1996 law is unconstitutional because its wording is so vague that it sets no clear standard for either judges or immigrants on which crimes it covers, Justice Elena Kagan said in the 5-4 ruling. She said it was similar to another law the court had overturned in 2015 requiring a 15-year prison sentence for some felons whose past convictions were for crimes posing a "serious potential risk" of violence -- language the court also found unconstitutionally murky.

The 2015 ruling was written by the late Justice Antonin Scalia,  a leading member of the court's conservative wing. Gorsuch, appointed by President Trump last year to succeed Scalia, had been unswervingly conservative in his decisions until Tuesday, when he invoked his predecessor in a strongly worded opinion that provided the court's more liberal justices with a decisive fifth vote.

"Vague laws invite arbitrary power," Gorsuch said, citing legal history from the time of the nation's founding and earlier, as Scalia often did. "The law's silence (in defining the crimes that require deportation) leaves judges to their intuitions and the people to their fate."

While Kagan's opinion applied the void-for-vagueness standard only to an immigration law that made deportation mandatory, Gorsuch suggested the same standard should apply to noncriminal laws that can cost citizens their business licenses or their homes, or even their freedom because of a mental health condition.

In dissent, Chief Justice John Roberts said the law clearly instructs judges to decide whether someone is likely to use violence in carrying out a specific crime, and thus was less vague than the "potential risk" law the court had struck down in 2015. Justice Clarence Thomas joined Roberts' dissent, but also wrote a separate dissent arguing that punitive laws can be constitutional even if they are vaguely worded.

The ruling will affect thousands of noncitizens. It came in a suit by James Dimaya of Hayward, who entered the United States from the Philippines with his family as a legal resident in 1992.

Dimaya, now 38, was convicted of two first-degree residential burglaries, of a home's garage in 2007 and an uninhabited house in 2009, and was sentenced to two years in prison. The government then began deportation proceedings under the 1996 law, which applied to noncitizens regardless of their legal status, and Dimaya spent nearly five more years behind bars before being released on bond in March 2015. His lawyers said no one was injured in either burglary.

He now works as a phone line installer for a telecommunications company, said attorney Brian Goldman. Goldman said the ruling allows Dimaya to keep "earning a living as a rehabilitated and contributing member of society instead of being sent back to a country that isn't his home."

Dimaya could still be deported for his crimes, but the ruling allows him to argue that they were not serious enough to qualify for deportation, or that his removal would cause undue hardship to himself and his family.

The court left intact another section of the law that requires deportation of noncitizens convicted of crimes that by definition include using, attempting or threatening violence. But the majority said Congress went too far in allowing judges to decide whether other felonies inherently pose a "substantial risk" of violence.

"How does one go about divining the conduct entailed in a crime's ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?" Kagan asked. She noted that lower courts have disagreed on whether such crimes as car burglary and evading arrest pose a risk of violence, and cited a 2010 government study that found only 7 percent of burglaries nationwide resulted in violence.

Roberts, in a dissent joined by Thomas and Justices Anthony Kennedy and Samuel Alito, said courts can readily examine the elements of a crime defined by law and decide whether they create a risk of violence.

Thomas, in his separate dissent, said courts should respect decisions by Congress and the executive branch on immigration and should not overturn them for alleged vagueness. He also said Dimaya had no basis to claim the law was vague, because courts had uniformly found residential burglary to be grounds for deportation, under the now-overturned 1996 law, before Dimaya committed his first burglary,

Attorney Joshua Rosenkranz, who represented Dimaya before the court, said the majority recognized that "you can't banish a person from his home and family without clear lines, announced up front."

Rosenkranz said Gorsuch, like Scalia, "demonstrated that due process is not a liberal/conservative issue."

The Trump administration, which took over the defense of the law from President Barack Obama's administration, denounced the ruling.

"By preventing the federal government from removing known criminal aliens, it allows our nation to be a safe haven for criminals," said Tyler Houlton, spokesman for Homeland Security Secretary Kirstjen Nielsen. He said Nielsen has been meeting with hundreds of members of Congress seeking legislation to "close public safety loopholes, such as these, that encourage illegal immigration and tie the hands of law enforcement."

The case is Sessions vs. Dimaya, 15-1498.

(c)2018 the San Francisco Chronicle

Caroline Cournoyer is GOVERNING's senior web editor.
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