Virginia Criminal Lawyer Immigration Attorney What Is A Crime Of Violence

The following is a new case that addresses how important it is to have a criminal lawyer who understands how a criminal conviction can have an impact on your immigration status.  Mr. Sris is a criminal lawyer who handles cases in Virginia & Maryland. 


138 S. Ct. 1204, 1207, 200 L. Ed. 2d 549 (2018)

On April 17, 2018, the Supreme Court of the United States struck down a provision of the Immigration and Nationality Act that virtually guaranteed the deportation of an immigrant convicted of an “aggravated felony,” including “a crime of violence.”  

Justice KAGAN compared the definition of “crime of violence” to the similarly phrased definition of “violent felony” within the Armed Career Criminal Act (ACCA), a provision that the Supreme Court struck down in  Johnson v. United States, 576 U.S. ____ , _____ , 135 S.Ct. 2551, 2561–2563, 192 L.Ed.2d 569, for being unconstitutionally vague under the Fifth Amendment’s due process clause.  Justice KAGAN delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, concluding that §16’s residual clause is unconstitutionally vague.


James Dimaya is a native of the Philippines who was admitted into the United States in 1992 as a lawful permanent resident. In 2007 and again in 2009, Dimaya was convicted of first-degree residential burglary under California law. For each conviction, Dimaya was sentenced to two years in prison. Based on these two convictions, the Department of Homeland Security said Dimaya was removable because he had committed a “crime of violence … for which the term of imprisonment [was] at least one year,” which would be an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F).

An immigration judge held that the California first-degree burglary crime meets the §16(b) prong (the “residual clause”) of the definition of crime of violence. After the Board of Immigration Appeals affirmed, Dimaya appealed his case to the Ninth Circuit.

While his case was pending in the Ninth Circuit, the Supreme Court in Johnson considered whether part of the definition of “violent felony” in the ACCA was unconstitutionally vague. The ACCA defines “violent felony” as: any crime punishable by imprisonment for a term exceeding one year … that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B) (emphasis added).

The court in Johnson found the “otherwise involves conduct that presents a serious potential risk of physical injury to another” portion of the definition unconstitutionally vague.”

Relying on Johnson, the Ninth Circuit ruled in Dimaya’s favor. It overturned the immigration appeal and struck down §16(b) as it is incorporated into the INA for its vagueness.

The Government preferred an appeal against this decision before the Supreme Court of the United States.


  • Whether a person’s conviction falls within the ambit of the residual clause of the federal criminal code’s definition of “crime of violence,” as incorporated into the Immigration and Nationality Act’s (INA) definition of “aggravated felony,” courts use a distinctive form of what is called the categorical approach. 8 U.S.C.A. § 1101(a)(43)(F); 18 U.S.C.A. § 16(b)?

Statutes In Question:

  1. Crime Of Violence – 18 U.S.C. § 16:

The term “crime of violence” is defined in 18 U.S.C. §16 as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(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.

  1. Aggravated Felony – 8 U.S.C. §1101(a)

8 U.S.C. §1101(a) As used in this chapter–

(43) The term “aggravated felony” means—

… (F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at3 least one year;


Whether a person’s conviction falls within the ambit of the residual clause of the federal criminal code’s definition of “crime of violence,” as incorporated into the Immigration and Nationality Act’s (INA) definition of “aggravated felony,”?

A commonly used term within the Federal Criminal Code, “crime of violence” is also incorporated into the INA’s definition of an “aggravated felony” (8 U.S.C. §1101(a)(43)(F)). A conviction for an aggravated felony can trigger serious immigration consequences.  Any noncitizen who has been convicted of an aggravated felony can be removed from the United States and is ineligible for many forms of discretionary relief (§§1227(a)(2)(A)(iii), 1229(b)(a)(3), (b)(1)(C)).
Justice KAGAN explained, that “removal is a virtual certainty for any alien who is convicted of aggravated felony.” By extension, removal is virtually certain in the case of a conviction for a “crime of violence” for which the term of imprisonment is at least one year.

  • A straightforward application of Johnson v. United States,576 U.S., 135 S.Ct. 2551, 2561–2563, 192 L.Ed.2d 569, effectively resolves this case.

Section 16(b) has the same two features as ACCA’s residual clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way.  To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,”

Section 16(b) suffers from those same two flaws.  Like ACCA’s residual clause, § 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard.  Thus, the same “two features” that “conspired to make” ACCA’s residual clause unconstitutionally vague also exist in § 16(b), with the same result.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and § 16(b) that it claims make § 16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate.

(1) First, the Government argues that § 16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”—in other words, a court applying § 16(b) may not “consider risks arising after” the offense’s commission is over.  But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in § 16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the § 16(b) inquiry, which focuses on the risk of “physical force,” “trains solely” on the conduct typically involved in a crime. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1. So under § 16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court’s analysis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.”  Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions.


Justice KAGAN delivered the opinion of the Court, concluding that the Immigration and Nationality Act’s “crime of violence” § 16’s residual clause is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment.

Justice KAGAN, joined by Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR.

Justice GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U.S. ____ , 135 S.Ct. 2551, 192 L.Ed.2d 569, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute’s operation is unavailing. In the criminal context, the law generally must afford “ordinary people … fair notice of the conduct it punishes,” and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. C

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