Supreme Court strikes down phrase in immigration law as vague

Courts have long held that, when a criminal law is too vague for a reasonable person to understand, it cannot be enforced. Enforcing it would violate our basic due process protections. The U.S. Supreme Court has just applied the same standard to the Immigration and Nationality Act’s definition of a “crime of violence.”

Under the INA, non-citizen immigrants who commit crimes of violence and certain other aggravated felonies are subject to mandatory removal and deportation. For the purposes of this case, the INA defines a crime of violence using an existing federal law, 18 U.S.C. §16(b), which defines crimes of violence for a variety of other laws.

The definition in Section 16(b) reads, “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.” In 2015, however, the Supreme Court struck down similar language as too vague for a criminal statute.

In the case before the court, a lawful permanent resident from the Philippines pled no contest to two counts of burglary. Immigration officials, relying on the above definition, attempted to have the Filipino man deported. The 9th Circuit, relying on the 2015 Supreme Court decision, ruled that the definition was too vague.

Is burglary a crime of violence? Does it involve a substantial risk that physical force may be used against a person or property? Burglary is generally defined as illegal entry into a building with the intent to commit a crime. It’s easy to imagine someone committing burglary without force, such as if they entered through an unlocked door with the intent to commit theft. Is there always a risk of violence? It’s hard to say for sure, isn’t it?

“No one should be surprised,” wrote Justice Neil Gorsuch, “that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it.”

The Supreme Court therefore voided the language and the Filipino man will not be deported.

The government can still deport people convicted of specific violent crimes and aggravated felonies defined by the INA.