“In short, the consequences of a conviction for an aggrevated felony are severe.”
EARLIER this year the Supreme Court of the United States issued a landmark decision that may potentially help immigrants who have previously been convicted of certain crimes. In Sessions v. Dimaya, the Court held that part of the definition of “crime of violence” is unconstitutionally vague under the Due Process clause of the Fifth Amendment of the Constitution. This decision will potentially spare thousands of immigrants from deportation and allow many others to seek relief that they were previously told was not available.
The case of Sessions v. Dimaya considered whether certain convictions would subject a person to being deported from the United States as an “aggravated felon.” Under the Immigration and Nationality Act (INA), a non-U.S. citizen convicted of an “aggravated felony” is deportable from the United States. And unfortunately for them, they are also ineligible to apply for certain forms of relief in Immigration Court, such as Cancellation of Removal. Aggravated felonies can also render a non-U.S. citizen ineligible for waivers, discretionary relief, and even asylum. Furthermore, if a non-U.S. citizen is not maintaining valid immigration status in the U.S. and is convicted of an aggravated felony, Immigration & Customs Enforcement (ICE) can order deportation without ever giving them the opportunity to appear before a judge. In short, the consequences of a conviction for an aggravated felony are severe.
This case involved a Filipino named James Dimaya who had been ordered deported by an immigration judge. Mr. Dimaya was a lawful permanent resident of the U.S. (green card holder) who had been convicted of first-degree burglary in California. The question was whether Mr. Dimaya’s criminal conviction made him deportable to the Philippines as an aggravated felon.
The INA sets forth twenty-one different classes of crimes that constitute aggravated felonies. One of those classes is a “crime of violence” for which the term of imprisonment is at least 1 year. The term “crime of violence” is defined in the federal criminal code (in part) 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 immigration judge in Mr. Dimaya’s case ruled that his conviction of first-degree burglary was a crime of violence, and that Mr. Dimaya was therefore an aggravated felon.
The case was appealed all the way up to the Supreme Court of the U.S. The Supreme Court accepted the case for review in order to resolve a conflict amongst the circuit courts regarding the constitutionality of the definition of “crime of violence.” The Court began by noting “the grave nature of deportation – a drastic measure often amounting to lifelong banishment or exile.” The Court then concluded that the definition of “crime of violence” is unconstitutionally vague. The Court reasoned that, when combining the definition requiring a fact-finder to imagine a hypothetical case and the definition not specifying what level of risk made a crime a “violent felony,” there is “grave uncertainty” and a lack of predictable application. As such, the definition is void-for-vagueness and unconstitutional.
The decision in Dimaya will considerably limit the Government’s ability to deport certain non-U.S. citizens with criminal convictions. Any non-U.S. citizen who has been found deportable for a “crime of violence” conviction or who has been deemed ineligible for relief on that basis may be able to challenge that conclusion and avoid deportation. The Dimaya decision is a reminder that the immigration laws have constitutional limits, and an immigration judge cannot deport a person simply because that judge believes that a particular crime seems “violent.” To trigger the draconian consequences that attend to an aggravated felony, the alien must be convicted of a crime that leaves no doubt as to the risk of violence involved in its commission. Gut instinct alone is not sufficient.
Any non-U.S. citizen with a criminal record should consult an experienced immigration attorney to determine the consequences of their conviction as well as their potential options for relief. The laws are constantly evolving, and doors once closed can be opened again. Remember, your past does not have to keep you from pursuing your goals in the U.S.
REEVES IMMIGRATION LAW GROUP is one of the oldest, largest and most experienced immigration fi rms in the United States with offi ces in Los Angeles, San Francisco, Las Vegas, Manila and China.
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The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the personalized representation that is essential to every case.