Filipino burglary convict saved from deportation by Trump appointee

A Filipino who is a lawful permanent resident of the United States “but has not always acted lawfully,” according to Justice Kagan, because he committed two crimes of burglary in California was saved from deportation by the vote of Neil Gorsuch, President Trump’s appointee to the Supreme Court who voted with the four liberal justices to create a 5-4 majority. As to why Gorsuch sided with the liberals, see https://slate.com/news-and-politics/2018/04/why-neil-gorsuch-sided-with-the-liberal-justices-in-sessions-v-dimaya.html )

The case had languished in the Supreme Court for three years because the justices had split 4-4, on whether to deport the immigrant. This case illustrates that persistence pays off even if one is a convicted felon and should serve as an example for other criminal defendants hundreds of whom are innocent but simply wilt like an unwatered flower in a vase and plead “not guilty” or “no contest” even though their case is less odious or is defensible.

James Garcia Dimaya, a native and citizen of the Philippines, was admitted to the United States in 1992 as a lawful permanent resident. In 2007 and 2009 Dimaya was convicted of first degree residential burglary under California Penal Code Section 459 and sentenced each time to two years in prison.

The Department of Homeland Security (DHS) filed removal proceedings against Dimaya alleging that he was removable because he had been convicted of a “crime of violence” for which the term of imprisonment was at least one year—an aggravated felony under 8 U.S.C.  §1101(a)(43)(F). That statute defines a “crime of violence” by reference to 18 U.S.C.  § 16, which provides: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

DHS also charged that Dimaya was removable for having committed two crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and for having committed a “theft offense . . . or burglary offense for which the term of imprisonment [was] at least one year”—an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Although the Immigration Judge (IJ) agreed with DHS that Dimaya was removable on either of these two grounds, the Board of Immigration Appeals (BIA) dismissed Dimaya’s appeal on the sole ground that he was removable for having committed a crime of violence under 8 U.S.C. § 1101(a)(43)(F). Therefore, whether the definition of a “crime of violence” under §16(b) is constitutional is the only issue.

The Board concluded that “[e]ntering a dwelling with intent to commit a felony is an offense that by its nature carries a substantial risk of the use of force,” and therefore affirmed the IJ’s holding that petitioner was convicted of a crime of violence. Dimaya appealed to the Court of Appeals which reversed the Board, holding that the language of 18  U.S.C.  § 16(b), which is incorporated into 8 U.S.C. §1101(a)(43)(F)’s definition of a “crime of violence” was unconstitutionally vague. The Court of Appeals held that § 16(b)’s language suffers from the same “indeterminacy” that the Supreme Court found in the Armed Career Criminal Act’s (ACCA) “residual clause” definition of a violent felony in Johnson v. United States, 135 S. Ct. 255 (2015). https://www.google.com/search?q=wjohnson+v+United+statess&ie=utf-8&oe=utf-8&client=firefox-b-1

The Supreme Court affirmed, holding that § 16(b)’s residual clause—a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense—is unconstitutionally vague. The Court explained that the combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.” The Court pointed out that §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” thresh­old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result.

“The prohibition of vagueness in criminal statutes,” is an “essential” of due process, required by both “ordinary notions of fair play and the settled rules of law.” The void-for-vagueness doctrine guarantees that ordinary people have “fair no­tice” of the conduct a statute proscribes. And the doctrine “guards against arbitrary or discriminatory law enforce­ment by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.”

The court rejected the government’s argument that even a law too vague to support a conviction may be good enough to sustain a deportation order. The court pointed out that “the most exacting vague­ness standard should apply in removal cases.”  The Court recalled that in Jordan v. De George, 341 U. S. 223, 229 (1951), it had considered whether a provision of immigra­tion law making an alien deportable if convicted of a “crime involving moral turpitude” was “sufficiently defi­nite.” That provision is not a criminal statute” (as §16(b) actually is) but the Supreme Court chose to test (and ultimately uphold) it “under the established criteria of the ‘void for vagueness’ doctrine” applicable to criminal laws. That approach was demanded “in view of the grave nature of deportation,” a “drastic measure,” often amounting to lifelong “banishment or exile.” Deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any poten­tial jail sentence.” Sessions v. Dimaya, No. 15-1498, April 17, 2018, Supreme Court. https://www.supremecourt.gov/opinions/slipopinion/17;

https://www.google.com/search?q=Sessions+v+Dimaya&ie=utf-8&oe=utf-8&client=firefox-b-1

COMMENT: Persons who were convicted and deported for a “crime of violence” under 18 U.S.C.  § 16(b) which has been declared void for vagueness in Sessions v Dimaya, should seriously consider seeking relief. If a statute is unconstitutional it "is no law.” Bedford Quarries v. Bough, 168 Ind. 671, 80 N.E. 539 (1907). How can a person be convicted for violation of a law if there “is no law”?

In Welch v. United States, No. 15-6418, April 18, 2016, https://www.google.com/search?q=welch+v+united+states&ie=utf-8&oe=utf-8&client=firefox-b-1 the Supreme Court held that Johnson v. United States, 576 US ___, which declared unconstitutional under the void for vagueness doctrine the definition of “violent felony” in ACCA, had announced a new substantive rule that has retroactive effect in cases on collateral review. A collateral challenge to a conviction and sentence may be made through a motion under 28 U.S.C.  § 2255 by making a substantial showing of the denial of a constitutional right.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)