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Nor does the statute call for the application of some preexisting body of law familiar to the judicial power. App. In October, the Supreme Court reheard argument in Sessions v. Dimaya , a case that has potential to change outcomes for removable aliens.

Two options are possible, only one of which is workable.I continue to harbor doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause — and those doubts are only amplified in the removal context.

Dimaya also asserts that ยง 16(b) is unconstitutionally vague because it shares the same features that made a provision unconstitutionally vague in Johnson v. United States , 135 S. Ct. 2551 (2015). § 1227(a)(2)(A)(iii). The case, which has yet to be decided, may well result in the Court holding one of the most contentious provisions of federal immigration law void for vagueness under its 2015 decision in Johnson v.

4, § 18, in 39 Eng. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a "crime of violence" under § 16(b). 48, p. 308 (C. Rossiter ed. Thus, the analyses under ACCA's residual clause and § 16(b) coincide.questions judges trying to apply the statute using an ordinary case analysis would have to confront. Section 16 of Title 18 defines it to mean:This definition of "crime of violence" is also incorporated in the definition of "aggravated felony" in the Immigration and Nationality Act. But he has not always acted lawfully during that time.

§§ 1227(a)(2)(A)(iii), 1229b(a)(3).Section 16(b), the residual clause, is the part of the statute at issue in this case.A comparison of § 16(b) and § 16(a) further highlights why the former likely adopts an underlying-conduct approach. Aggravated felonies include "crime[s] of violence" as defined in § 16. No amount of staring at the statute's text, structure, or history will yield a clue. § 924(e)(1). The Court's attempt to avoid the Scylla of the Sixth Amendment steered it straight into the Charybdis of the Fifth. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. The definition of that statutory term goes as follows:The Fifth Amendment's Due Process Clause provides that no person shall be "deprived of life, liberty, or property, without due process of law."

In my judgment, the Constitution demands more.at ___, 135 S.Ct., at 1229 (opinion of THOMAS, J.).
The ordinary-case approach that was created to honor the individual right to a jury is now, according to the Court, so vague that it deprives individuals of due process.mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a "violent felony." A summary and case brief of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), including the facts, issue, rule of law, holding and reasoning, key terms, and concurrences and dissents. The truth is, no one knows.

I am also skeptical that the vagueness doctrine can be justified as a way to prevent delegations of core legislative power in this context. The Court heard argument in the case in January 2017. SESSIONS, III, Attorney General, Petitionerv.James Garcia DIMAYA.given the statute's concern with the ordinary (rather than the outlandish) case.


See id., at ___, 135 S.Ct., at 2558 (asking whether "an ordinary burglar invade[s] an occupied home by night or an unoccupied home by day"); Dimaya v. Lynch, 803 F.3d 1110 , 1116, n. 7 (C.A.9 2015) (noting that only about seven percent of burglaries actually involve violence); Cal. The Court, however, was unable to resolve the case by the end of its 2016 term. §§ 25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). How are the people to know?removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.Those consequences came to pass in respondent James Dimaya's case. I will briefly discuss the origins of the categorical approach and then explain why the Court should abandon it for § 16(b).My objection aside, the ordinary-case approach soon created problems of its own. Citations are also linked in the body of the Featured Case.The text of § 16(b) does not require a categorical approach.

These questions do not suggest obvious answers. Sessions v Dimaya - The Reargument. Is the court supposed to hold evidentiary hearings to sort them out, entertaining experts with competing narratives and statistics, before deciding what the ordinary case of a given crime looks like and how much risk of violence it poses? Should (or must) the judge predict the effects of new technology on what qualifies as the ordinary case?
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