In the first year of the Trump Administration, the President doubled down on many of his immigration-related campaign promises. 2017 brought Executive Orders and agency guidance designed to streamline enforcement of the existing statutory scheme (DACA recission) and to invigorate infrastructure (securing ports of entry under the travel ban and building the southern border wall).

2017 was slated to be an important year for immigration long before the 2016 election.  In October, the Supreme Court reheard argument in Sessions v. Dimaya, a case that has potential to change outcomes for removable aliens. The case, which has yet to be decided, may well result in the Court holding one of the most contentious provisions of federal immigration law void for vagueness under its 2015 decision in Johnson v. United States.

James Garcia Dimaya entered the United States in 1992 on a lawful permanent resident (LPR) visa. Fifteen years later, Dimaya was convicted of first-degree residential burglary in California, and served two years in prison. In 2009, Dimaya was convicted of the same crime, for which he served another two years. Neither of these criminal acts involved any violence on Dimaya’s part; however, the Immigration Judge (IJ) found him removable on the basis of the convictions’ classification as “crimes of violence” and thus “aggravated felonies” for purposes of the Immigration and Nationality Act (INA).

The provision of the INA at issue in Dimaya has been examined by the Supreme Court on multiple occasions. INA Section 1101(a)(43) enumerates a variety of criminal offenses that collectively define an “aggravated felony” for purposes of the Act. Of particular concern is 101(a)(43)(F), which incorporates “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year.” Section 16(b) defines a “crime of violence” as: “any . . . offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The IJ in Dimaya’s case found that, because residential burglary generally involves a risk of physical violence in the course of its ordinary commission, it qualified as a crime of violence. The question before the Court in Dimaya is whether this kind of judicial decisionmaking, which IJs and courts employ in determining whether a non-violent offense qualifies as a crime of violence, is void for vagueness under Johnson.

Justice Scalia (writing for the majority in Johnson) took issue with the method of judicial decisionmaking necessary to determine whether a state criminal conviction qualifies as a “violent felony” for purposes of the Armed Career Criminal Act (ACCA). Johnson held that this decisionmaking process itself rendered the ACCA’s “residual clause” void for vagueness: judicial application of the “categorical approach” to determine whether a conviction constitutes a “violent felony” invited arbitrariness and fell short of the constitutional minimum due process requirement of notice.

For immigration advocates, IJs, and courts, determining whether a criminal conviction constitutes an “aggravated felony” is often a convoluted and high-stakes process. Courts, as noted above, use the same “categorical approach” at issue in Johnson. The residual clause—with nearly identical wording to the provision at issue in Dimaya—triggers enhanced penalties when applied under the ACCA; a conviction of an aggravated felony often triggers removal (or deportation). The Supreme Court in 1948 described “deportation [as] a drastic penalty,” which is “[the] equivalent to banishment or exile.” Although Petitioners in Dimaya attempted to confine its void for vagueness analysis explicitly within the criminal context, the Jordan Court held in 1951 that void for vagueness challenges apply in the immigration context because of the severity of the penalty.

At oral argument, Justice Neil Gorsuch repeatedly questioned the Government’s advocate, showing particular concern for due process, notice of severe penalties attending a defendant’s conduct, and the implications of Johnson for judicial decisionmaking. As was often the case with Justice Scalia, Justice Gorsuch defied ideological stereotypes, at many points echoing concerns raised by Justice Kagan and Justice Sotomayor. Dimaya may be an opportunity to test whether Justice Gorsuch will carry Justice Scalia’s torch as a defender of due process, or whether he will reflect the views of the President who appointed him. Justice Gorsuch’s enthusiasm for due process rights of non-citizen criminal aliens and resistance to Petitioners’ attempts at differentiating Johnson suggest that he may be carving his own niche in the seat he inherited.