Wall Street Journal
By Jess Bravin and Brent Kendall
April 17, 2018
The Supreme Court reduced the number of people facing mandatory deportation for committing crimes, ruling on Tuesday that the federal law requiring expulsion was written too vaguely to stand constitutional scrutiny.
Justice Neil Gorsuch, whose appointment President Donald Trump often cites as a signal accomplishment, joined liberal justices to provide the tie-breaking vote. “Vague laws invite arbitrary power,” he wrote in a concurring opinion. Leaving people “in the dark” about the law’s demands allows “prosecutors and courts to make it up.”
When first argued in January 2017, the case apparently had split the court, then at eight justices following the death of Justice Antonin Scalia. It was re-argued in October following Justice Gorsuch’s arrival.
“The Justice Department believes that certain crimes committed by an illegal alien, visa holder, or an alien otherwise granted lawful status in the U.S., should trigger their removal,” said department spokesman Devin O’Malley. “We call on Congress to close criminal alien loopholes” that allow some immigrants to avoid mandatory deportation, he said.
Tuesday’s case involved James Dimaya, a Filipino who moved to the U.S. at age 13 in 1992 and holds permanent residency. After his second conviction in California state court for residential burglary, in 2009, federal authorities sought to deport him under a federal law that effectively requires removal of such people convicted of “aggravated felonies.”
Tuesday’s decision means “you can’t banish a person from his home and family without clear lines, announced up front,” said Mr. Dimaya’s attorney, Joshua Rosenkranz. The now-invalid provision “has resulted in many thousands of immigrants being deported for decades in violation of their due process rights,” he said.
The statute, which affects people who have already served their sentences, lists specific crimes that qualify, such as murder and rape. But it also has a catchall provision for unlisted crimes, including offenses that involve “the use, attempted use, or threatened use of physical force” against a person or property, and any other felony “that, by its nature, involves a substantial risk that physical force” may be so used.
The high court has been skeptical of such broad legal definitions. In a 2015 case from Minnesota, the court voted 8-to-1 to reject a similar catchall provision the government invoked to increase the sentence of a white supremacist suspected of planning attacks on minorities, “progressive bookstores” and “liberals.”
Writing for the court Tuesday, Justice Elena Kagan said the ruling for Mr. Dimaya relied on the same principles the late Justice Antonin Scalia cited in the Minnesota case three years ago.
The catchall provision required a court to imagine whether a crime—here, burglary—ordinarily would meet the definition, Justice Kagan wrote. But “how does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?” she wrote.
Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined all of Justice Kagan’s opinion, and Justice Gorsuch most of it.
In California, the crime of burglary “applies to everyone from armed home intruders to door-to-door salesmen peddling shady products,” Justice Gorsuch wrote in his separate opinion. “How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force?”
Like Justice Scalia, Justice Gorsuch sometimes insists on a stricter reading of constitutional protections for criminal defendants than other conservatives do. His vote Tuesday affirmed an opinion written by the late Judge Stephen Reinhardt, a liberal powerhouse who sat on the Ninth U.S. Circuit Court of Appeals, in San Francisco, until his death last month.
But Chief Justice John Roberts, along with Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, saw it differently. Writing the principal dissent, Chief Justice Roberts said the deportation provision was clearer than the section the court threw out in 2015.
The immigration law “asks about ‘risk’ alone, a familiar concept of everyday life. It therefore calls for a commonsense inquiry” and not some obscure calculation of potential force, Chief Justice Roberts wrote, joined by the other three.
In a second criminal case Tuesday, the chief justice and Justice Gorsuch switched sides.
At issue was what federal courts reviewing certain criminal cases should do when a state appellate court provides no rationale for a decision, such as rejecting an appeal with the single word “denied.”
The 11th Circuit, in Atlanta, held that federal courts should review the record and affirm the state court decision if any grounds that could have supported the ruling are found.
Writing for the Supreme Court, Justice Breyer said that went too far. Instead, in most cases, a federal reviewing court should “look through” an unexplained order to the last reasoned opinion within the state justice system, and assume the higher court relied on that.
The federal court should then decide whether those grounds met the constitutional standard, Justice Breyer wrote, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor and Kagan.
The decision keeps open an appeal by Marion Wilson, who in 1997 was convicted in the murder of Donovan Parks, shot dead after a shopping trip to a Walmart .
Mr. Wilson’s appeal is based on ineffective assistance of counsel. He claims his lawyers failed to introduce mitigating evidence regarding his childhood and brain impairments.
Justices Gorsuch, Thomas and Alito dissented.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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