Justice Neil Gorsuch Casts Deciding Vote Against the Trump Administration in Sessions v. Dimaya

On Tuesday, April 17, 2018, the United States Supreme Court decided Sessions v. Dimaya, 584 U.S. ___ (2018), with Justice Neil Gorsuch casting the deciding vote against the Trump Administration. The Supreme Court held that 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act, was unconstitutionally “void for vagueness,” citing Johnson v. United States, 576 U.S. ___ (2015).

James Dimaya immigrated from the Philippines and was a lawful U.S. permanent resident since 1992. Dimaya was twice convicted for first-degree burglary under California law. The Board of Immigration Appeals held that first-degree burglary under California law is a “crime of violence,” as defined by 18 U.S.C. 16(b), such that Dimaya should be deported under 8 U.S.C. 1229(b). While Dimaya’s appeal was pending, the Supreme Court decided Johnson, holding that a similar residual clause in the Armed Career Criminal Act defining “violent felony” was unconstitutionally “void for vagueness.” Relying on Johnson, the Ninth Circuit held that 18 U.S.C. 16(b) as incorporated into the Immigration and Nationality Act was also “void for vagueness” since Section 16(b) had the two same problematic features as the Armed Career Criminal Act’s residual clause – an ordinary-case requirement and a poorly defined risk threshold, which combine to result in ambiguity as to the measure of risk posed by a crime and how much risk is necessary for the crime to qualify as a violent felony. The Supreme Court affirmed, finding the clause unpredictable and arbitrary, contrary to the Due Process Clause.

Justice Elena Kagan wrote for the majority in a 5-4 opinion. Justice Gorsuch wrote a long-winded concurrence in which he explained the purpose of the vagueness doctrine and discussed civil penalties before clarifying that the vagueness doctrine is a procedural demand rather than a substantive demand.

Additional Reading

The Trump administration loses an immigration case — with Gorsuch as the deciding vote, The Washington Post (April 17, 2018)

Sessions v. Dimaya, 584 U.S. ___ (2018)

Johnson v. United States, 576 U.S. ___ (2015)

18 U.S.C. 16(b)

8 U.S.C. 1229(b)