James Dail (CM ’20)
Immigration is currently at the forefront of US political discourse, and it is an issue that provokes passionate responses from both sides of the aisle. On January 25th, President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States (EPSIUS), which, among other things, called for the application and enforcement of the Immigration and Nationality Act (INA) to deport foreign aliens who commit crimes. On January 17, the Supreme Court heard oral arguments for Lynch v. Dimaya, a case that could limit the scope of the deportations. The decision will determine on what grounds a lawful, permanent resident may be removed from the country, and it has the potential to overturn decades of US immigration policy.
James Dimaya is a citizen of the Philippines who became a lawful permanent resident of the United States in 1992.1 He was convicted twice for first-degree residential burglary, first in 2007, and again in 2009. Following his second conviction, Homeland Security took action against Dimaya using the INA. Under the INA, all non-US citizens who are convicted of a violent felony are to be deported. Homeland Security claimed that his crime posed a substantial risk of violence, which enabled them to begin the deportation process.2
Dimaya’s dispute with the Federal Government lies in the INA’s interpretation of what a “crime of violence” constitutes. The INA defines a crime of violence as “an offense that has as an element of the use, attempted use, or threatened use of physical force against the person or property of another, or 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.” The question lying at the heart of the case is if the wording “substantial risk” is too vague. Dimaya’s argument is that by loosely applying the “substantial risk” wording to nonviolent crimes, it avoids the due process of law.2
If the past is any indication, there is evidence to suggest that the Supreme Court will rule in favor of Dimaya. The case derives precedent from Johnson v. United States, which hinged on a similar dispute over whether a criminal’s past crimes are violent felonies if they pose a risk of injury to another person. The Supreme Court ruled in favor of Johnson in an 8-1 decision. The 9th Circuit Court of Appeals, in which Dimaya’s case was originally tried, used the Supreme Court’s decision in the Johnson case as a basis to find the INA’s interpretation of “substantial risk” to be unconstitutionally vague.
Though the case itself is about burglary, a ruling in favor of Dimaya will have far-reaching implications. Immigration authorities currently have complete leeway in deciding what constitutes “substantial risk.” Legal permanent residents are deported every year for minor offences, most notably marijuana possession, which began in the 1980s during “The War on Drugs.” A ruling in favor of Dimaya will limit the scope of EPSIUS by clarifying who may be deported under the INA.