Supreme Court case shows how vague immigration law invites arbitrary decisions

In Sessions v. Dimaya, the Supreme Court recently struck down a provision of the Immigration and Nationality Act (INA), which renders deportable any foreign national who has been convicted of a “crime of violence.” According to the High Court, the federal statute defining a crime-of-violence isn’t specific enough for aliens with criminal convictions from the court to determine if they would be subject to removal under it.

In rendering its decision, the court relied on a collection of legal principles known as “vagueness doctrine.” Under American constitutional jurisprudence, a statute may be deemed unenforceable if it is too ambiguous. This is an extension of the concept of due process. And it is based on the notion that the government has an affirmative obligation to give the people adequate notice of what behavior is proscribed by the law.

{mosads}While the void-for-vagueness doctrine is, technically, applicable to both criminal and civil statutes, in practice it is very sparingly applied outside the criminal law context. On those rare occasions when it is applied to non-criminal matters (almost always in First Amendment, free-speech cases) it is applied using a more relaxed civil standard.

The government argued that the looser civil standard should be applied in Dimaya. But the court rejected that argument out of hand. And that should be a major cause for concern to anyone who cares about restoring the rule of law to our immigration system.

Over one hundred years ago, in Fong Yue Ting, the Supreme Court held that deportation is merely the process of returning an alien who has failed to comply with the conditions of his admission to the country where he/she holds full citizenship rights. It’s roughly akin to a civil eviction. 

That means that aliens in removal proceedings are not entitled to the same Fifth and Sixth Amendment due process protections accorded to criminal defendants, such as a free lawyer at taxpayer expense. And that has been an eternal source of frustration to the open-borders advocates, who fully understand that treating removal proceedings as criminal trials would effectively eliminate any meaningful control of over our borders.

In Dimaya, the court evaluated the definition of crime-of-violence in a criminal context, employing the type of Fifth Amendment due process criteria applicable to criminal proceedings. In so doing, it takes another step down the dangerous path that the Court recently began treading in Padilla v. Kentucky, where it implied, without formally finding, that removal is a “drastic” measure, the significant effects of which render it analogous, in some respects, to punitive incarceration. And that’s a step closer to a disastrous judicial finding that all deportation orders must be issued by an Article III judicial court because they involve the functional equivalent of a penal sentence. 

In his concurring opinion in Dimaya, Justice Gorsuch grandiosely declares, “Vague laws invite arbitrary power,” analogizing the INA’s crime-of-violence provisions to Britain’s notoriously ambiguous, pre-Revolution treason law. That is a curious assertion. Particularly in light of the fact that the Court previously found the INA crime-of-violence definition to be both clear and easily applicable in Leocal v. Ashcroft, and the provision has been successfully applied by the courts for at least two decades.

To the majority of objective observers, the U.S. immigration system is fairer and provides more procedural safeguards than any other in the world. And there is nothing capricious about the way that alien criminals are removed from the United States. In fact, most would argue that the playing field is tipped firmly in favor of the foreign criminal, who typically receives multiple warnings in state court that a criminal conviction could result in deportation, and whose criminal defense attorney has an obligation to make him aware of the immigration consequences of the charges against him. As such, the only arbitrary exercise of power evident in Dimaya seems to be the court’s willingness to engage in circuitous logic to protect alien criminals from non-existent threats to due process rights that they clearly do not possess.

In the short-term, Dimaya will probably have little discernible effect. Many of the crimes that trigger removal as crimes-of-violence are specifically referenced elsewhere in the INA and will continue to result in deportations. But it clearly represents the creeping erosion of the distinction between civil and criminal proceedings. The notion that removing foreign trespassers, and ungrateful guests, from the United States is somehow punitive is absurd on its face.

Such claims flip the script, implying that the U.S. government’s primary responsibility in the immigration arena is protecting foreigners’ dubious claims to rights that they do not, in fact, possess, rather than fulfilling its first duty, which is protecting American citizens.

Matt O’Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as assistant chief counsel in U.S. Immigration and Customs Enforcement’s New York District. He is currently director of research at the Federation for American Immigration Reform.