SCOTUS Petitions of the Day in Criminal Removal Cases
Yesterday’s Petitions of the Day on SCOTUSBlog raised the question whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an immigrant’s removal from the United States, is unconstitutionally vague. The cases, in which the Solicitor General sought review, are Lynch v. Lopez-Islava (memorandum disposition) and Lynch v. Dimaya, in which the Ninth Circuit in an opinion by Judge Stephen Reinhardt (joined by Judge Kim McLane Wardlaw), with a dissent by Judge Consuelo Callahan, found that the statutory provision was unconstitutionally vague. For a summary of the Ninth Circuit opinion by law student Nicole Zanardi, click here.
In Dimaya, the Ninth Circuit granted the petition for review of the BIA’s finding under the idea that a noncitizen may bring a “void for vagueness challenge” to the definition of a crime of violence within the Immigration and Nationality Act. The Ninth Circuit found that the Due Process Clause requires that a penal statute define the criminal defense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. It relied on United States v. Johnson, 135 S. Ct. 2551 (2015) to find that in statute in question was unconstitutionally vague.
In seeking cert in Lynch v. Dimaya, the Solicitor General wrote that
“The exceptional importance of the question of Section 16(b)’s constitutionality alone warrants this Court’s review. Moreover, the Ninth Circuit’s decision conflicts with the Sixth Circuit’s decision in United States v. Taylor, 814 F.3d 340 (2016), which upheld against a vagueness challenge a definitional provision located at 18 U.S.C. 924(c)(3)(B) that is worded in a materially identical manner. Accordingly, this Court’s review is warranted.”
KJ