High Court Strikes Down Provision of Crime of Violence Definition as Unconstitutionally Vague [May 7, 2018] [open pdf - 425KB]
"A non-U.S. national (alien) may be subject to removal and face other serious immigration-related consequences if he has been convicted of an aggravated felony. The Immigration and Nationality Act (INA) defines an aggravated felony to include a 'crime of violence' for which the term of imprisonment is at least one year, and incorporates the federal crime of violence (COV) definition found in 18 U.S.C. § 16. Recently, the Supreme Court in Sessions v. Dimaya affirmed a decision by the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) holding that the language of the second prong of the COV definition, which covers any felony offense that involves a 'substantial risk' of physical force, is unconstitutionally vague (the first prong of the COV definition, covering an offense that includes as an element the actual, attempted, or threatened use of force, remains in effect). The Supreme Court relied on its decision in Johnson v. United States, which held that a similarly worded component of the federal violent felony definition found in the Armed Career Criminal Act (ACCA), which was employed for sentencing enhancement purposes, was void for vagueness under the Due Process Clause. By striking down part of the COV definition, the Supreme Court's ruling in Dimaya potentially narrows the scope of criminal offenses that may subject an alien to removal. Beyond the immigration context, the Supreme Court's decision narrows the scope of numerous other statutes that incorporate the federal COV definition when imposing heightened criminal or civil penalties on those who have committed a 'crime of violence.'"
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