Thursday, October 6, 2016

After Recent Supreme Court Ruling, Crime of Violence Definition Too Vague in Immigration Law

The definition of “crime of violence”  in the Immigration and Nationality Act is deemed to be unconstitutional because it is too broad and leaves it up to interpretation by a court

Golicov v. Lynch, 2016 BL 307286, 10th Cir., No. 16-9530, 9/19/16.

The Tenth Circuit joined a circuit split in holding that “crime of violence” is unconstitutionally too broad in the Immigration and Nationality Act (INA). The court relied on reasoning supplied by the Supreme Court in its decision of Johnson v. United States, where it held that “violent felony” was too vague under the Armed Career Criminal Act. Under the INA, an immigrant may be removed if convicted of an aggravated felony, also described as a “crime of violence.” The act’s definition for “crime of violence” is a felony that “involves a substantial risk that physical force against the person or property or another may be used in the course of committing the offense.” The court found that this definition is similar to the provision invalidated by the Supreme Court because it required a judicial official to estimate the risk posed by a crime, leaving uncertainty about how much risk it takes for a crime to qualify as a violent felony.

In this decision, the Tenth Circuit joins the Sixth, Seventh, and Ninth Circuits that “crime of violence” is too vague. The government has filed a petition for certiorari in the Ninth Circuit case.

https://www.bloomberglaw.com/public/desktop/document/Golicov_v_Lynch_No_169530_2016_BL_303072_10th_Cir_Sept_19_2016_Co?1475772138

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