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

Government Must Quickly Place Aliens Recently Released from Jail into Detention

Under the Immigration and Naturalization Act (INA), the government must act quickly to place an alien into mandatory detention after they are recently released from jail to hold them without bond 

Preap v. Johnson, 2016 BL 252253, 9th Cir., No. 14-16326, 8/4/16.

   The Ninth Circuit joined a minority of jurisdictions in requiring the government to act quickly to place aliens recently released from jail into mandatory detention without bond under the INA. The controversy arose because of the statute’s language that requires the government to take an alien into custody “when the alien is released” from jail. Relying on statutory context and legislative history, the court held that there cannot be a lengthy period between an alien’s release and subsequent detention. It said, “[B]ecause Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.” The circuit court suggested that the individual circumstances of each case should be considered to determine if government detention occurred quickly after a release from jail.

https://www.bloomberglaw.com/public/desktop/document/Preap_v_Johnson_No_1416326_NO_1416779_2016_BL_252253_9th_Cir_Aug_?1470942090

Vague Law Prevents Removal of Albanian Immigrant that Committed Robbery

A provision under the Immigration and Nationality Act is void because of vagueness, preventing removal of an immigrant that committed a non-armed robbery

Shuti v. Lynch, 2016 BL 217913, 6th Cir., No. 15-3835, 7/7/16.

   The Sixth Circuit joined the Seventh and Ninth Circuits in voiding a provision from the Immigration and Nationality Act (INA) for being too vague using precedent from Johnson v. United States. Under Johnson, the Supreme Court held that “violent felony” was unconstitutionally vague in the Armed Criminal Career Act (ACCA). In making this decision, the court ruled that the precedent set in Johnson could be “mixed and matched” with other statutes, making it applicable to other acts with similar language. The court held that the definition of “crime of violence” shares a resemblance to the ACCA’s “violent felony” definition, which was eventually invalidated. The order was vacated ad the case was remanded.

https://www.bloomberglaw.com/public/desktop/document/Shuti_v_Lynch_No_153835_2016_BL_217913_6th_Cir_July_07_2016_Court?1469141588

No Penalty Conviction Still Triggers Deportation Proceedings

A drug conspiracy conviction that includes a sentence without jail time, probation, or any other penalty, can still trigger deportation proceedings under the Immigration and Nationality Act

Frias-Camilo v. Att'y Gen., 2016 BL 201232, 3d Cir., No. 15-3733, 6/23/16.

   AThird Circuit court found that a guilty conviction, even those without an actual sentence or restraint on personal liberty, still can trigger deportation proceedings. The defendant pled guilty in his criminal trial, was convicted, and then was given a “guilty without further penalty” sentence. He argued that without an actual sentence, his conviction did not fit into the federal sentencing statutes that would establish any guilt allowing for deportation.

   The court rejected the defendant’s arguments, noting that the Immigration and Nationality Act does not place a punishment or sentencing component in the act’s definition of “conviction.” The court further argued that although there is no sentencing option for a “guilty without further penalty” in federal statute, the state statute clearly provides for this type of sentencing, which would trigger deportation. “We do not hesitate to conclude that a sentence of ‘guilty without further penalty’ is a ‘sentence’ for purposes of the INA.”

http://www.bloomberglaw.com/public/document/FriasCamilo_v_Atty_Gen_No_153733_2016_BL_201232_3d_Cir_June_23_20.

Jurisdictional Elements in Aggravated Felonies for Immigrants Are Immaterial for Conviction

A state offense is considered an aggravated felony when it meets the elements of the matching federal crime, even when it lacks a similar jurisdictional element found in the federal statute

Torres v. Lynch, 2016 BL 159420, U.S., No. 14-1096, 5/19/16.

   Aggravated felonies can now include state offenses that match elements of a federal crime listed in the Immigration and Nationality Act (INA), 8 U.S.C. §1101(a)(43) without the jurisdictional elements. These offenses, without the interstate or foreign commerce element used to establish federal jurisdiction, will make it easier to deport or deny discretionary relief to immigrants convicted of such felonies.

   The ruling will uphold the position that several circuit courts have taken, such as the Second and Ninth Circuits were the bulk of immigration cases take place. This ruling, however, will prevent “long-time legal permanent residents with convictions for minor state offenses [from] appealing to the sound discretion of the Attorney General to obtain relief from removal.” As the dissenting opinion notes, they would have liked to preserve “more possibilities for immigration judges to consider individual equities and circumstances in determining the appropriateness of deportation.”

   Judges in analyzing cases involving aggravated felonies will now have less discretion in granting relief, but immigration judges deciding whether to grant relief from removal can still consider the seriousness of any offense, including aggravated felonies.  Ultimately, this decision prevents statutory loopholes that may prevent removal of some immigrants in the country after committing state felonies that lacked a jurisdictional element tying it to the INA.

http://www.bloomberglaw.com/public/desktop/document/Luna_Torres_v_Lynch_No_141096_US_May_19_2016_Court_Opinion?1465323537