“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16, is void for vagueness. The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.
The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F). Mr. Dimaya, a legal permanent resident, had two prior convictions for first-degree residential burglary under California law, subjecting him to removal. The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.
Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness. Citing to the late Justice Scalia’s opinion in Johnson, that the residual was for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).