March 30, 2020

Sessions v. Dimaya


Does Incorporating a Federal Criminal Law on Crimes with “Significant Risk” into Immigration Law for Deportation Purposes Lead to Unconstitutional Vagueness?


Aliens convicted of an aggravated felony can be removed from the country in deportation proceedings. Federal law allows such deportations if aliens have engaged in a felony that “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 problem is in determining when an offense entails such “significant risk.” Take the crime of burglary. Some burglaries involve physical force, but many burglaries involve no physical force or are committed when the owners are not present. The key question for the Court is whether this law is unconstitutionally vague.

Docket No. 15-1498
Argument Date: October 2, 2017
From: The Ninth Circuit
by David L. Hudson Jr.
Vanderbilt Law School and the Nashville School of Law, Nashville, TN

Editor’s Note: This article originally appeared in Preview Issue 3, Volume 44, when the case was originally argued on January 17, 2017. The Court is now hearing a reargument of the case. No additional briefing was requested between the original argument and this new session.


Is 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, unconstitutionally vague?


Respondent James Garcia Dimaya, a citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992 at 13 years old. He attended high school in California and eventually earned a G.E.D. He maintained employment at times but ran into criminal trouble.

In 2007 and 2009, respondent pleaded no contest to charges of residential burglary. In 2010, the Department of Homeland Security instituted removal proceedings against respondent under the Immigration and Nationality Act (INA). Homeland Security contended that respondent should be removed because his convictions qualified as crimes of violence and, thus, were aggravated felonies.

An immigration judge agreed with the government and ordered respondent removed. The Board of Immigration Appeals agreed that respondent was removable because at least one of the burglary convictions qualified as an aggravated felony.

Respondent filed a petition for review in the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit determined that the definition of “crime of violence” from Section 16(b), as incorporated into the INA’s definition of “aggravated felony,” is unconstitutionally vague. This provision provides that a crime of violence means:

(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.

The Ninth Circuit reasoned that the provision suffered from the same indefiniteness as a similar provision in the Armed Career Criminal Act (ACCA). The Court had ruled in Johnson v. United States, 576 U.S. (2015), that the clause was too vague.

The government petitioned for a writ of certiorari, which the Court granted.


The Impact of Johnson v. United States

In Johnson, the Court invalidated a part of the ACCA known as the residual clause. This residual clause allowed for enhanced sentences of defendants who engaged in “conduct that presents a serious potential risk of physical injury to another.”

Writing for the Court, Justice Antonin Scalia explained that this residual clause was too vague:

Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the “ordinary case” of a crime involves?…

At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.

The ACCA’s residual clause created vagueness problems because it was impossible to know whether a particular crime would create a serious potential risk.

The key question in this case is whether Section 16(b)—also termed a residual clause—suffers from the same constitutional problems or if it is distinguishable.

The government acknowledges that “Section 16(b), like the ACCA’s residual clause, requires a court to assess the risk posed by the ordinary case of a particular offense.” But the government asserts that there are three key differences.

First, the government contends that Section 16(b)’s risk analysis is limited to risks that occur during the commission of the actual offense, rather than speculating about future risk. Second, the government emphasizes that Section 16(b) focuses on the use of physical force against person or property while committing the offense. Third, the government says that Section 16(b) does not contain a list of exemplar offenses, like the ACCA’s residual clause does.

Respondent says that Johnson squarely controls this case and that Section 16(b) is void for vagueness just like the ACCA’s residual clause. The problem is in trying to determine how much “substantial risk” of “physical force” an ordinary case will entail. Take respondent’s offense of burglary. Some burglaries involve a substantial risk of physical force. However, notes respondent, many burglaries take place when the owners are not on the premises and there is no accompanying physical harm.

“Because the § (Section) 16 residual clause provides no greater clue how a court is supposed to identify the ‘ordinary case,’ it yields the same constitutionally impermissible level of arbitrariness and unpredictability as its ACCA counterpart,” respondent writes. Respondent also points out that Section 16(b) arguably is even vaguer than its ACCA counterpart, because it does not list exemplar offenses and instead is more open-ended.

Criminal Law Versus Removal Proceeding

The essence of a vagueness challenge is that a criminal law must provide fair notice to defendants as to when their conduct violates the law. The legal system’s concerns over vague laws pertain not only to fair notice, but also to arbitrary or selective enforcement of the laws.

The government asserts that the vagueness question differs from criminal laws to immigration removal laws, which are considered civil. According to the Court, “[r]emoval is a civil, not criminal matter.” The government contends that the Court’s jurisprudence often emphasizes that the core due process vagueness principally limits criminal, or penal, statutes.

The government asserts that an unintelligibility test would properly determine whether this civil law, an immigration removal statute, is unconstitutionally vague. This test asks whether a law or policy was so unintelligible that it was “not a rule at all.” The government explains that this unintelligibility test “would ensure that an alien is not subject to a proceeding governed by an incomprehensible legal standard” and “would also ensure immigration officials and courts are not obligated to enforce legal provisions from which it is impossible to discern any meaning, preserving the integrity of the immigration system.” 

The government also concludes that under this standard of basic intelligibility, respondent was not denied due process. Section 16(b) has been applied by courts for decades, including by a unanimous Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004).

Respondent counters that the same standard for vagueness used to evaluate criminal laws applies to immigration statutes because of the “grave nature of deportation.” Respondent agrees with the Sixth Circuit which wrote that “[t]he criminal versus civil distinction is…ill-suited to evaluating a vagueness challenge regarding the specific risk of deportation.” Deportation laws are punitive and carry severe consequences.

Respondent also points out that Section 16 is a criminal statute. Respondent notes that stringent vagueness inquiries apply to civil laws implicating First Amendment freedoms. Respondent emphasizes that “punitive laws and those with otherwise severe consequences—including deportation laws and laws implicating First Amendment rights—are subject to the same vagueness scrutiny as criminal laws.”

Respondent further rejects the “basic intelligibility” standard as not adequately protecting individuals from vague laws with severe consequences.


The case is significant in part because it will resolve a circuit split on the constitutionality of Section 16(b) in the deportation context and will determine whether the reasoning of the Court’s decision in Johnson extends to the field of immigration. The lower courts have disagreed in immigration removal cases on whether certain crimes entailed a significant risk of physical violence.

The decision will be important in determining whether there is indeed any difference at all in the vagueness standards for criminal versus civil laws. Both parties have spent a significant amount of time parsing different phrases from different cases in arguing this key point.

The government argues that the Court’s invalidation of Section 16(b) “would have deleterious consequences for the immigration laws and the federal criminal code.” The government writes that Section 16(b) is important to the enforcement and punishment of money laundering, racketeering, domestic violence, and crimes against children.

Respondent counters that these concerns are overblown. Respondent points out that in the immigration removal context, the government could still rely on Section 16(a), which looks to the actual elements of an offense rather than divining about substantial risk. Respondent contends that striking down Section 16(b) would have a “limited” impact on the government’s enforcement of immigration laws. 

Finally, the case is significant because many Court observer eyes will be on the newest Justice, Neil Gorsuch, who has written on these issues while a judge on the Tenth Circuit. As immigration law professor Michael Kagan explains in his article “What 2016 Gorsuch Opinions Could Mean for 2017 Re-Argument in Sessions v. Dimaya” for Notice & Comment (a blog of the Yale Journal on Regulation), Justice Gorsuch wrote two opinions (the majority opinion and a concurring opinion) in Gutierrez-Brizuela v. Lynch (2016), a case dealing with similar issues. (See nc/what-2016-gorsuch-opinions-could-mean-for-2017-re-argument-in-sessions-v-dimaya/.) It is not often that a jurist writes two opinions in the same case.

The justices could have been divided 4–4 after the first round of arguments, and presumably, with the addition of a new colleague, the tie will be broken.

David L. Hudson Jr. is a Nashville-based author and legal educator. The author, coauthor, or coeditor of more than 40 books, Hudson teaches classes at the Nashville School of Law and Vanderbilt Law School. He can be reached at 615.780.2279. PREVIEW of United States Supreme Court Cases, pages 33–35. © 2017 American Bar Association


  • For Petitioner Jefferson B. Sessions, III (Jeffrey B. Wall, Solicitor General, 202.514.2217)
  • For Respondent James Garcia Dimaya (E. Joshua Rosenkranz, 212.506.5000)


In support of Respondent

  • National Association of Federal Defenders (Kara Hartzler, 619.234.8467)
  • National Immigration Law Center (Andrew J. Pincus, 202.263.3000)
  • National Immigration Project of the National Lawyers Guild, Immigrant Defense Project, American Immigration Lawyers Association, and National Immigrant Justice Center (Sejal R. Zota, 617.227.9727)
  • Retired Article III Judges (Justin Florence, 617.951.7000)