Sessions v. Dimaya:

 

No. 15-149

 

On October 2, 2017, arguments were heard again in Sessions v. Dimaya at the Supreme Court of the United States. The case was originally heard on January 17, 2017, and it was set for reargument on July 19, 2017. The case attempts to answer whether 18 USC § 16(b) is unconstitutionally vague. Section 16(b) requires that “a crime of violence” is an “aggravated felony” when determining whether a crime is severe enough to compel removal from the United States. Previously the United States Court of Appeals for the 9th Circuit relied on Supreme Court precedent to determine that the provision was unconstitutionally vague. Section 16(b)

 

Justice Scalia wrote the opinion in Johnson v. United States, which is the case the Court of Appeals for the 9th Circuit relied upon in rendering its decision. Johnson held that removal provisions in our immigration laws are subject to vagueness reviews. Justice Gorsuch’s line of questioning throughout the argument suggests that his decision will fall in line with Scalia’s opinion in Johnson. He specifically points out that the Due Process Clause does not distinguish between civil and criminal as opposed to the 5th Amendment right against self-incrimination. Furthermore, he challenged Kneedler addressing that this is a procedural due process concern rather than substantive because Congress can combat the vagueness question by enacting more specific laws.

 

In the present case, James Garcia Dimaya is an immigrant from the Philippines. He has two burglary convictions, and an immigration court concluded that he needed to be removed from the United States because of his crimes. The immigration court found that Dimaya’s two convictions amounted to crimes of violence; thus, they were required to remove him under 18 USC § 16(b). However, neither of the burglaries of which he was convicted included violence. The United States Court of Appeals for the 9th Circuit found in favor of Dimaya, and the Supreme Court granted cert on September 29, 2016.

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After hearing the arguments in January, the Court was split, so the case was reassigned to the October Calendar. There is speculation that Justice Gorsuch will be the deciding vote in favor of Dimaya. Justice Gorsuch appeared to follow the late Justice Scalia’s line of argument, especially when pointing to the text of the Constitution. Additionally, it is said that Kneedler, who argued on behalf of the government, was on the defensive for much of his argument.

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The decision in this case may have major implications on judicial review of immigration laws. For example, United States citizens in suspect classes are constitutionally protected; however, many immigration laws may be considered unconstitutional. This decision has the power to open the door for those discussions. Specifically, laws related to criminal-removal of immigrants from the United States. The opinion written for this case may have the power to upset the status quo, and cause a major shift in the United States’ immigration laws. By rehearing the case, and not allowing a plurality, the Supreme Court will address this important question—whether the requirement for vagueness review of removal provisions to determine constitutionality will be further upheld by the current Supreme Court.

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Written By: Samantha Fournier