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Just another ordinary burglary

Criminal law continues to influence immigration matters as the void for vagueness doctrine becomes a more pervasive issue in the interpretation of immigration statutes.  Specifically, the definition of “crime of violence” as it pertains to enhanced sentencing and removals under Title 8 of the Unites States Code has been and continues to be scrutinized by the courts.  The September 19, 2016 decision of the United States Court of Appeals for the Tenth Circuit in Golicov v. Lynch is the most recent interpretation of “crime of violence” with respect to immigration law.

Golicov, a lawful permanent resident, was subject to deportation under 8 U.S.C. § 1227(a)(2)(A)(iii) due to a conviction for failing to stop at the command of a police officer.  Under this provision of the Immigration and Nationality Act (INA), aliens are subject to removal upon conviction of a “crime of violence” as defined in 8 U.S.C. § 1101(a)(43)(F).  The statute specifically incorporates the definition found at 18 U.S.C. § 16B. (13)(14)(15).  Determining whether the crime for which an alien was convicted was or was not a “crime of violence” is key.  The court held the definition in § 16B void for vagueness and confusing in determining whether or not a crime is a “crime of violence.”

The majority in Golicov held the § 16B definition was unconstitutionally vague because it was substantially similar to a “crime of violence” definition found in the Armed Career Criminals Act (ACCA) (18 U.S.C. § 924(e)(2)(B)).  The ACCA definition was determined by the United States Supreme Court to be unconstitutionally vague Johnson v. United States.

“The term ‘violent felony’. . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The statute analyzed in Golicov was considered similar enough to the ACCA definition even though the language was not identical.

“The term ‘crime of violence’ means (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.”

Certainty in the law is necessary for due process. 

It should be noted that only the second half of the ACCA definition following the enumerated violent crimes, known as the residual clause, poses an issue.  The ACCA definition was held to be unconstitutionally vague because the statute required a categorical approach to the analysis of whether or not a crime is a crime of violence.  This definition required the court to examine the nature and elements and nature of a fictional “ordinary case” of the particular crime as opposed to examining the real-world facts of the case at hand.  Further, according to the Supreme Court the ACCA definition promotes uncertainty as to how risks are assessed and exactly what level of risk pushes a crime into the category of a violent crime.

As discussed in Johnson, the void for vagueness doctrine is born out of the Fifth Amendment right to due process.  Certainty in the law is necessary for due process.  Due process requires that laws provide notice of the prohibited or required conduct and that laws not be subject to arbitrary enforcement.  Vagueness in law prevents certainty as to what is required or prohibited, and vagueness promotes the arbitrary enforcement of the law.  So, if a law fails to provide notice or is subject to arbitrary enforcement, then the law violates due process rights and is said to be void for vagueness.

The case of Johnson was decided while multiple immigration cases questioning the constitutionality of the INA’s adopted definition of “crime of violence” were pending appeal.  From these appeals, a circuit split developed.  The United States Court of Appeals for the Tenth, Ninth, Seventh, and Sixth Circuits joined in finding the § 16B definition of “crime of violence” was unconstitutionally vague while the United States Court of Appeals for the Fifth Circuit found no constitutional issues with the § 16B definition.

The Sixth Circuit case, Shuti v. Lynch, the Ninth Circuit case, Garcia-Dimaya v. Lynch, and the Tenth Circuit case, Golicov v. Lynch, each arise out of the appeals from orders of deportation on the basis of prior convictions of “crimes of violence.”  The facts of Shuti v. Lynch are particularly difficult compared to the Ninth and Tenth Circuit cases as the defendant was a permanent resident who came to the United States to flee persecution in his home country.  If Shuti would be subject to removal, he would have been removed to a country in which he was not raised, and he would have been separated from the remainder of his family who are now U.S. citizens.  Regardless of this minor difference, each court in these cases relies heavily on language and arguments from Johnson.

The failure to determine a standard or threshold risk level for “crimes of violence” results in inconsistent applications of the law.

The courts in each of these cases found, by analogy to the ACCA residual clause, the § 16B definition of “crime of violence” unconstitutional.  The courts juxtaposed the ACCA residual clause from Johnson and the § 16B definition and found that, in the words of the Chief Judge Cole in Shuti, “While not a perfect match, these provisions undeniably bear a textual resemblance.”  Both § 16B and the ACCA residual clause illustrate Congress’ focus on prior convictions and the analysis of the risk posed by an offense, and both call upon a categorical analysis to determining the status of an offense as a “crime of violence.”  The courts echoed—with respect to §16B—the same issues that the Supreme Court found with the ACCA residual clause in Johnson.  First, the § 16B definition requires a categorical approach to the analyses of whether an offense is a “crime of violence.” This means that the judge may not base the decision on the particular facts of how the offense was committed in the case at hand, but rather he must judge the offense based on how the law defines the elements and nature of the offense.  This categorical approach of the § 16B definition requires a judge to imagine the “ordinary case” of a particular crime in order to assess the risks associated with that particular crime.

The example of burglary utilized in the Johnson opinion was repeated by the circuit courts in these cases.  There can be two very different ordinary cases of burglary, according to the courts:  one where a burglar enters a residence in the day and retreats immediately upon the hearing someone from inside calling out, “Who is there?”  and another case where a burglar enters a residence at night and confronts the residents within.  These two very different cases would lead to very different assessments of risk, and there is no way to determine between the two which is the ordinary case.  This type of analysis would result in arbitrary assignments of risk to offenses across cases.  Further, § 16B fails to determine at what level of risk an offense is deemed a “crime of violence.”  The failure to determine a standard or threshold risk level for “crimes of violence” results in inconsistent applications of the law.  Because of the uncertainty surrounding the provisions of § 16B, that statute fails to give adequate notice as to what conduct is defined as a “crime of violence,” and because §16B causes uncertainty as to how to measure the risk associated with an offense and fails to enumerate at what level of risk an offense is deemed a “crime of violence.”  According to the Tenth, Ninth, and Sixth Circuits, the failure to provide notice and the arbitrary application of the law makes § 16B unconstitutionally vague.

The Seventh Circuit, in United States v. Vivas-Ceja, also joined the Tenth, Ninth, and Sixth Circuits in finding § 16B as unconstitutionally vague.  The facts of this case differed in that instead of the defendant being subjected to deportation due to a conviction, the defendant was determined to be in the U.S. illegally after re-entering.  Upon his sentencing, the trial court enhanced his sentence due to a prior conviction that the court deemed a “crime of violence.”  Just as the Tenth, Ninth, and Sixth Circuit Courts concluded, the Seventh Circuit found any language distinctions between the ACCA residual clause and § 16B were merely superficial.  The Court also found the language of § 16B unconstitutionally vague.

Though the Tenth, Ninth, Seventh, and Sixth Circuits fell on the side of unconstitutionality, the circuit split developed in the Fifth Circuit where, sitting en banc, the Court held that the § 16B definition is more narrowly tailored than the ACCA residual clause and is sufficient to pass constitutional muster.  In United States v. Gonzalez-Longoria, the defendant was found by a trial court to be in the U.S. illegally and was handed an enhanced sentence based on a prior conviction of a “crime of violence” as defined in § 16B.  The defendant argued that, because the statute under which he was sentenced specifically incorporates the § 16B definition of “crime of violence,” which was unconstitutional, his sentence was also unconstitutional.  The same arguments posed to the Tenth, Ninth, Seventh, and Sixth circuits were made here, although the Court determined that the ACCA residual clause—found unconstitutional in Johnson—was dissimilar to § 16B as the inquiry of risk is more narrow under § 16B.

The Court made the point that the ACCA residual clause requires a determination of the risk that an injury will occur, while the § 16B provision requires an assessment of the risk of the use, or threatened use of physical force in the commission of an offense.  As for the level of risk necessary to designate an offense as a “crime of violence,” the court notes the use of the word “substantial” in § 16B, as opposed to the “serious” language of the ACCA residual clause.  The “substantial risk” language is not vague, and such a threshold has traditionally been used by courts in the determination of risk across various areas of law.  Further, the § 16B provision does not follow a train of enumerated offenses as the residual clause of the ACCA does, which, according to the court, contributes to the confusion surrounding the ACCA residual clause.  Finally, the court asserts that there has not been the same amount of confusion surrounding the application of § 16B as there has been with the ACCA residual provision.  These distinctions remove the issues of vagueness that rendered the ACCA residual clause unconstitutional from § 16B.

It is unlikely that the Court will discuss the definition in the context of immigration statutes.

Despite the Fifth Circuit’s distinctions between the ACCA residual clause and § 16B, the similarities between the two statutes still leaves questions as to the constitutionality of § 16B.  For example, the court in, Gonzalez-Longoria, conceded that, in both the ACCA residual clause and § 16B, the “ordinary case” of a particular offense provides the means for determining amount of risk posed by any offense.  Though the Gonzalez-Longeria Court made this concession to answer the question of how to measure risk presented by other circuit courts and the Supreme Court in Johnson, the use of the “ordinary case” categorical approach seems to be the primary reason that the Supreme Court found the ACCA residual clause to be unconstitutionally vague.  Given this argument, one possible question to be answered on appeal is whether or not the use of the categorical approach and the “ordinary case” standard is enough to render the ACCA residual clause and § 16B unconstitutionally vague.

Subsequent to Gonzalez-Longoria the Fifth Circuit has continued the application of § 16B as in United States v. Lara-Martinez.  Meanwhile, the ninth circuit opinion in Garcia-Dimayo v. Lynch is currently on appeal to the Supreme Court.  The Supreme Court is also slated to hear arguments regarding the definition of “crime of violence” in Beckles v. United States in the upcoming term.  However, the definition will be discussed in the context of sentencing guidelines and it is unlikely that the Court will discuss the definition in the context of immigration statutes.

Cody Davis
About Cody Davis (12 Articles)
Cody Davis is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. He is originally from Archdale, NC. He received his bachelor's degree from N.C. State, majoring in Political Science and minoring in Criminology and Philosophy. In addition to pursuing a Juris Doctorate at Campbell University School of Law, Cody has simultaneously earned his Masters in Public Administration at NC State. He currently serves as the Assistant Director of the Campbell Law Pro Bono Council and has worked as a research assistant for Professor Bobbi Jo Boyd. He is currently interning at the Legislative Analysis Division of the North Carolina General Assembly.