CHICAGO – The U.S. Supreme Court, by a vote of 5-4, has struck down part of the “aggravated felony” definition, one of the most punishing provisions in U.S. immigration law. The Court found a provision, which triggers automatic removal for offenses that by their nature tend to be “crimes of violence,” to be impermissibly vague.
In her majority opinion, Justice Elena Kagan reiterated earlier Court rulings that despite the civil nature of immigration law, deportation is a severe punishment and therefore “the most exacting vagueness standard must apply.” Justice Neil Gorsuch joined most of the opinion as the fifth vote, but wrote separately to emphasize his view that the fairness principle offended by vague laws was applicable to civil statutes generally, which also mete out grave penalties, not just to immigration matters.
“We were pleased to see Justice Gorsuch recognize that civil penalties like deportation can be as harsh or harsher than criminal penalties,” said Chuck Roth, National Immigrant Justice Center’s (NIJC) director of litigation. “Separating families and exiling members of our communities is a cruel and awful punishment, yet has become a regular practice. Worse, immigration judges frequently lack any choice in the matter; an aggravated felony would basically require deportation, regardless of the facts of the case or the effects on Mr. Dimaya’s family.”
NIJC was proud to collaborate with the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, and the American Immigration Lawyers Association, in the filing of an amicus brief. Sejal Zota was lead counsel on the brief; Eamon Joyce of Sidley Austin represented the amici pro bono. The Court’s decision cited the brief, explaining how conflicting decisions have arisen in applying the vague provision in question.
The effects of the Supreme Court’s decision are not sweeping. The aggravated felony definition itself includes approximately 80 other grounds, and another prong of the crime of violence ground continues in effect. Dozens of other removability provisions may also subject noncitizens to removal. But the Supreme Court’s decision may well impact other legal provisions, such as the removal ground for “crimes involving moral turpitude,” a ground that can trigger deportation for relatively minor crimes such as shoplifting. Judge Richard Posner of the Seventh Circuit Court of Appeals made this point in 2016 in a concurrence in Arias v. Holder, an NIJC case.
U.S. immigration laws are disproportionately harsh and unfair in myriad ways. The decision in Sessions v. Dimaya is a step, one small step, toward fair process for all.