Today, the Supreme Court ruled in Sessions v. Dimaya, that the crime of violence statute allowing removal of aggravated felons unconstitutional. This will have grave consequences for people currently in removal proceedings for “crimes of violence” and those with removal orders for these crimes.
What is a “Crime of Violence” Aggravated Felony?
The Immigration and Nationality Act includes a list of crimes that make an immigrant deportable from the United States. These crimes include so-called “aggravated felonies” included in INA § 101(a)(43) and include “crimes of violence”. These crimes are not defined in the INA but are defined under 18 USC § 16. The definition includes two phrases §16(a) and §16(b). 16(a) defines a crime of violence as a crime that includes an element of the use or attempted use of force. 16(b) defines the crime as a crime that involves a substantial risk of the use of force to persons or property.
Is the Statute Constitutional?
The Supreme Court had ruled previously, in Johnson v. United States, that the same definition under the Armed Career Criminal Act (ACCA) was vague and thus unconstitutional. This means that the definition violated the Fifth Amendment’s Due Process Clause, depriving a person of liberty without due process of the law. The Court ruled that the case disposition in the Johnsons case resolved the issue of whether the definition in the INA was unconstitutionally vague. The court ruled that the definition in the first clause created uncertainty regarding the risk of harm involved in the statute of conviction. The Court ruled that this uncertainty and vagueness led to unpredictability and arbitrariness in court decisions. This led the Court to rule that the first clause was unconstitutionally vague.
The Court added that the second section also suffers from the same vagueness making it also unconstitutional.
How Could This Affect Your Case?
This definition has enormous consequences on cases currently pending before immigration courts around the country, and cases that have already been decided. For example, a person who has already been ordered removed for an aggravated assault in Florida could file a Motion to Reopen his or her case before the immigration court that ordered his removal. This Motion would reopen the case in immigration court and would lead to a new trial, and possible termination, of the removal case. This result will allow the immigrant to remain in the United States and possible retain his lawful status in the United States.
What Should You Do if You Have an Order of Removal because of a “Crime of Violence”?
You should contact an immigration attorney as soon as possible to discuss your options. Waiting to file the Motion to Reopen might seriously affect your chances of reopening your case before the immigration court or the Board of Immigration Appeals.
Call us today at 1(888)963-7326 to schedule a strategy session to discuss your options.