In a 2015 case called Lynch v. Dimaya, the 9th Circuit held that 18 USC § 16(b), the statute that defines “crime of violence” for immigration purposes, to be unconstitutionally vague. The Court labeled the statue’s definition, as incorporated into INA § 101(a)(43)(F), to be vague following the Supreme Court decision in Johnson v. United States (2015). There, the Armed Career Criminal Act’s residual clause definition for “violent felony,” namely its language “involves conduct that presents a serious potential risk of physical injury to another” had been labeled unconstitutionally vague.
Before Dimaya, the open nature of Subsection (F)’s “crime of violence” definition included many criminal convictions, and conviction with a term of imprisonment of at least one year for a crime of violence constitutes an “aggravated felony.” In the immigration context, designation of a conviction as such is often devastating to non-citizens, making their options for relief from removal few and far between. Essentially, by designating “crime of violence” as vague, the 9th Circuit narrowed the definition of which crimes can be considered aggravated felonies as crimes of violence.
The Supreme Court now seems poised to follow Johnson itself as the 9th Circuit did. Following government appeal, the Supreme Court granted a petition for writ of certiorari in Dimaya on September 29, 2016, to determine “[w]hether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. Given this development, and the Supreme Court’s recent history in Johnson, immigration practitioners and non-citizen clients may very well soon witness the jurisprudence of “crime of violence” unconstitutional vagueness expanding to the entire nation.