So you’re an immigration judge, and you’re deciding a deportation case.[1] The case involves a lawful permanent resident, who twice pleaded “no contest” to burglary in California, and was sentenced each time to two years in prison. The Department of Homeland Security acted to deport the noncitizen in question on the theory that California residential burglary was an “aggravated felony.”[2]  Under the Immigration and Nationality Act (INA), a conviction for an aggravated felony by a noncitizen is automatic grounds for removal. The government contends that defendant is removable on two separate but similar grounds. First, under one statute,[3] California burglary falls within the “generic” federal definition of burglary, which makes it an aggravated felony for immigration purposes.[4] Second, a conviction of California burglary renders the noncitizen removable since the INA defines an aggravated felony in part by including any felony where there is a “substantial risk that physical force … may be used” in furtherance of the offense,[5] and a California burglary constitutes such a “crime of violence.”[6]

The matter before you here is whether a conviction of residential burglary under California law qualifies as an “aggravated felony,” and so as a removable offense. More specifically, does the California offense of house burglary, by its nature, present a substantial risk that force will be used during its commission, thus making it a “crime of violence” for INA purposes?

From all appearances, one might argue that of course it does. And in fact, the federal definition of “generic burglary” endorsed by Taylor v. United States,[7] as used in immigration courts, requires unlawful entry as an element.[8] Such a feature could end up proving force had been used in the crime. Yet the burglary statute at issue here doesn’t require any forcible entry.[9] In California, if thieves entered a house through an open door to take whatever they could find, then they would be liable for first-degree burglary under California law, regardless of exactly what force was used.

But maybe that doesn’t matter. And maybe California’s burglary statute is too broad. And maybe, also, burglars in California usually break into houses since people there normally lock their doors. And maybe, just maybe, home burglars generally bring with them a substantial risk of violence. Or maybe this “substantial risk” standard becomes further snarled when you realize you are measuring not the riskiness of an actual burglary, but the riskiness of what garden-variety burglaries look like in your story-making head.

And therein lies the core issue for our toy case above, and indeed for many deportation proceedings: Does the crime-of-violence law at 18 U.S.C. § 16(b) place far too much power in judicial hands? Just think about it. What does the ordinary commission of burglary or, for that matter, any crime look like; just how risky is that particular imagined conception; and is its riskiness covered by the ambit of section 16(b)’s substantial risk” standard?

***

The Supreme Court will open a new term in October with a fast start by dealing with this very issue. The case, Sessions v. Dimaya,[10] whose facts mirror the hypothetical you were given, concerns whether the definition of a “crime of violence” under section 16(b) is void for vagueness. James Dimaya was twice convicted and sentenced—first in 2007 and then again in 2009—on nongeneric burglary charges. Neither had proven to have any violence. Yet the immigration judge in Dimaya’s case agreed with the government on the removability charges—California burglary counted as both a generic burglary and crime of violence under federal law. By contrast, the Board of Immigration Appeals (the nation’s highest immigration court), concluded that California burglary wasn’t generic burglary. However, the Board then also affirmed the immigration judge’s holding that California burglary fit the statutory definition of a crime of violence needed to toss Dimaya out of the country.

But in late June of 2015, while waiting for the decision on his appeal, there was a major wrinkle in the Dimaya case. In a 7-1 decision,[11] the Supreme Court declared invalid a strikingly similar law.[12] The late Justice Scalia, writing for the majority, said that the law at issue in Johnson v. United States,[13] was too vagarious and left too much space for the judge’s discretion. That sentence-enhancement provision, which was part of the Armed Career Criminal Act, required courts to determine whether an offense posed a “serious potential risk of physical injury to another”—a standard that then rang awfully close to the “substantial risk” test applied in the case against Dimaya.

Building off that decision, the Ninth Circuit stated that in light of Johnson, part of the definition of a crime of violence “suffer[ed] from the same indeterminancy,”[14] and so it, too, was invalid. This made sense. After all, there was a ready-made framework just waiting for the three-judge panel: Section 16(b)’s “substantial risk” language closely paralleled that of the “serious risk” language in the law stricken in Johnson. And since they gave off such similar airs, the crime-of-violence statute in relevant part was plausibly too vague to be applied as a rule of law.

***

To begin its analysis, the majority opinion authored by Judge Reinhardt,[15] addressed whether the Constitution’s protection against vague laws applied to immigration laws defining who could be deported.[16] That is, could a noncitizen facing removal mount a vagueness challenge to a deportation statute?

Mr. Obama’s administration didn’t think so. Professor Feldman, in a column for Bloomberg, superbly summarized the government’s grotesque reasoning:

The government says that the due process clause of the Constitution only prohibits vague statutes “to ensure fair notice of what conduct is criminally prohibited” and to avoid arbitrary enforcement of the law. It claims that there’s no constitutional right to notice about deportation law, and that there’s no worry about arbitrary enforcement because the attorney general prescribed standards to apply immigration law.[17]

Reinhardt flatly rejected this “baffling” interpretation of the Constitution’s guarantee of due process, writing that the Fifth Amendment’s “prohibition on vagueness … applies to civil statutes, including those concerning the criteria for deportation.”[18] Here Reinhardt, a judicial vestige of the Carter era, relied on an old Supreme Court ruling. That 1951 case concerned whether a deportation law was sufficiently precise—an analogous constitutional challenge to the one that had reached the federal appeals court. And thus, as the opinion noted elsewhere, by “considering this challenge, the Court explicitly rejected the argument that the vagueness doctrine did not apply.”[19]

Next, Reinhardt applied Johnson’s holding to the vagueness concern in the instant matter before the panel. In deciding a section 16(b) case, the immigration court, as you may recall, looks only to the acts that surround an archetypical (and not actual) criminal conviction and then guesses just how great the risk of violence that “ordinary case” poses. Reinhardt wondered—as Scalia, too, had once wondered—how all this could possibly be done without producing incongruous decisions between judges.

What made the provision at issue in Johnson invalid, Reinhardt explained, was that it “combined indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk” was needed to meet the statutory standard.[20] The level-of-risk analysis together with the use of “ordinary case” analysis created a standard that was “nearly impossible to apply consistently.”[21] When viewed in light of Reinhardt’s reading of Johnson, defining a crime of violence under section 16(b), also, entailed too much guesswork. In so reasoning, the Appellate Court of the Ninth Circuit struck down as unconstitutional part of the crime-of-violence law used to deport immigrant criminals.

***

More questions than answers remain today in the wake of the Ninth Circuit’s ruling in Dimaya. Though much of the government’s argument in the case was,[22] and still is, deeply flawed and its reasoning at times vicious, the constitutionality of section 16(b) was never well-settled among the federal judiciary. The Ninth Circuit was splintered[23] and the Fifth Circuit created a circuit split after it reversed en banc a panel’s divided decision on the same matter.[24]

Nonprofits, government watchdogs, and law school clinics, among others, are almost certainly paying rapt attention to the Dimaya case. Its outcome will likely carve a path for Mr. Trump and future presidents to set immigration policy. Yet by focusing so intensely on the narrow issue of whether immigrants should be deported for serious crimes, one betrays what is really at stake. It’s not just about immigration and national security; it’s also about the void-for-vagueness doctrine. Under due process, laws affecting basic rights cannot be too ductile; they must give ordinary people fair notice of what the legal rules are and avoid uneven enforcement. As Feldman wrote in his Bloomberg piece:

The problem with unconstitutionally vague statutes is that they violate the basic principle of the rule of law. Without legal clarity, there can be no legal predictability. That principle applies whenever a person is in serious jeopardy as to his or her rights — which should include jeopardy of being kicked out of the U.S.[25]

But the right to due process of law in the deportation context only ensures such proceedings will be “fundamentally fair.”[26] Would depriving noncitizens of their rights to fair notice—a touchstone of due process—about whether their crimes are “crimes of violence,” ultimately, make immigration proceedings so fundamentally unfair as to violate the Fifth Amendment? At the oral argument on Johnson’s effect, Ninth Circuit’s Judge Callahan quipped: “As a practical matter, I don’t think anyone commits crimes and says, ‘Oh, if I commit this crime then I’m therefore going to be under the 16-b analysis.’ ”[27]

Callahan made a good point. Practical or not, sentencing statutes are now being tested under the vagueness doctrine with increasing regularity. This wasn’t always so. In Chapman v. United States,[28] the Rehnquist Court suggested that the vagueness doctrine couldn’t be used to analyze what potential sanctions were overly vague on a selective basis:

The fact that there may be plausible arguments against describing blotter paper impregnated with LSD as a “mixture or substance” containing LSD does not mean that the statute is vague. This is particularly so since whatever debate there is would center around the appropriate sentence and not the criminality of the conduct.[29]

Extending the void-for-vagueness lore through the certainty requirement signals the Court’s willingness to adopt a stronger posture for judicial activism (or, depending on your perspective, overreach) to establish new dogma. But that stance might create more problems than it would solve. Besides the obvious trouble of making plain how vague is too vague, new worries get introduced by relaxing the vagueness doctrine in the criminal justice context. For example, there are a growing number of instances of agencies and lawmakers—at the local, state and federal levels—passing overlapping laws governing the same kind of conduct. This so-called overcriminalization affords prosecutors additional leeway in choosing how to charge potential defendants. Professor Hessick explains:

These overlapping statutes allow prosecutors to choose from a large “menu” of criminal charges—a defendant may be charged with a crime carrying a harsh sentence or a more lenient one, as the prosecutor sees fit—and it also allows prosecutors to add or drop duplicative charges in order to pressure defendants to enter a guilty plea.[30]

Notwithstanding due process, these sorts of arbitrary features run deep among America’s criminal justice system. Moreover, police and prosecutorial decision-making, in many cases, are unreviewable.

Aside from asking whether a police officer had probable cause to arrest, or whether a prosecutor had probable cause to bring charges, courts will not review arrest, charging, or plea bargaining decisions. A defendant is powerless to obtain review, for example, of a prosecutor’s decision to bring more serious charges against her than against other similarly situated defendants. The Supreme Court says that these decisions are committed to the discretion of the executive.[31]

***

Johnson’s holding has sharpened the tension between the doctrines of separation of powers and due process of law. It also has left unanswered a number of crucial questions. Does the vagueness doctrine intrude on the power and duty of the Executive to enforce the law? And if it doesn’t, will (or should) it be the case that prosecutorial discretion stays unabated? And where does judicial discretion end and inequitable sentencing begin? The upcoming term has the ripe potential to provide the vagueness doctrine with a clearer and more principled foundation—that is, if the Court doesn’t simply punt on the issue altogether.

Endnotes

[1] In what follows, whenever reference is made to “removal” or “deportation” in the immigration proceeding context, it means the formal process set forth at 8 U.S.C. § 229a.

[2] Despite the menacing name, an “aggravated felony” is whatever Congress says it is, and needs no degree of aggravation nor felonious behavior. Indeed a nonviolent lesser crime, like writing a bad check, may constitute an aggravated felony for immigration purposes.

[3] 8 U.S.C. 1101(a)(43)(G).

[4] Under the strict “categorical approach” first outlined in Taylor v. United States, 495 U.S. 575, 599–600 (1990), the immigration court must examine the minimum conduct punishable under the statute of conviction to see if the least of the acts criminalized is necessarily a “categorical match” with a federal removal ground—e.g., the generic definition of the corresponding offense. If so, the finding will almost certainly lead to the deportation of the noncitizen offender.

[5] 18 U.S.C. §16(b).

[6] Both charges—the generic burglary and crime of violence—have requirements based on the sentence length of the underlying prior conviction that, for our purposes, are trivially satisfied.

[7] Taylor v. United States, 495 U.S. 575 (1990).

[8] “[A]n unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598; see also Descamps v. United States, 133 S. Ct. 2276, 2292 (2013) (“[G]eneric burglary’s unlawful-entry element … requires breaking and entering or similar unlawful activity.”).

[9] Burglary under California law consists simply of entry—lawful or unlawful—into a building, inter alia, with the intent to commit a theft or felony therein. See California Penal Code, Section 459.

[10]  See Supreme Court of the United States docket for Sessions v. Dimaya, No. 15-1498, available at https://www.supremecourt.gov/search.aspx… (last visited Sept. 16, 2017)

[11] Justices Kennedy and Thomas concurred only in the result. 135 S. Ct. at 2563 (Kennedy and Thomas, JJ., concurring). But Justices Thomas, Kennedy, and Alito (writing in dissent) did not undertake the same vagueness analysis as the majority. Id. at 2563, 2573–84 (Kennedy and Thomas, JJ., concurring) (Alito, J., dissenting).

[12] 18 U.S.C. 924 (e)(2)(B)(ii) (defining a violent felony as, inter alia, a conviction for a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”).

[13] Johnson v. United States, 135 S.Ct. 2551 (2015).

[14] Dimaya v. Lynch, 803 F.3d 1110, 1111 (9th Cir. 2015).

[15] Judge Reinhardt’s majority opinion was joined by Judge Wardlaw. Id. at 1110.

[16] Id. at 1113; see generally Peter L. Markowitz, Deportation is Different, 13 U. Pa. J. Const. L. 1299 (2011) (arguing that “deportation is different” and thus American immigration jurisprudence ought to exist between criminal and civil legal systems).

[17] Noah Feldman, ‘Bad Hombres’ Loom Over Supreme Court, Bloomberg View, Jan. 17, 2017, available at https://www.bloomberg.com/view/articles/… (discussing normatively the Ninth Circuit’s ruling on the Dimaya case).

[18] Dimaya, 803 F.3d at 1113.

[19] Id. (citing 341 U.S. at 231, 71 S.Ct. 703).

[20] Johnson, 135 S. Ct. at 2558.

[21] Id. at 2560 (quoting Chambers v. United States, 555 U.S. 122, 133 (2009) (Alito, J., concurring)).

[22] Dimaya originally included former Attorney General Lynch as a named party. As its near decade-long procedural posture reminds us, the dispute is as much a product of the Johnson ruling as it is of the Obama administration’s focus on deporting serious criminals.

[23] Of the three judges on the panel, Judge Callahan alone dissented from the opinion. Similarly, Callahan was also alone in voting to grant en banc review.

[24] After the Ninth Circuit issued its ruling in the Dimaya case, charges of vagueness to § 16(b) started cropping up in other circuits. One such case was United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc). Originally, a divided panel found § 16(b) void for vagueness. However, after granting a rehearing en banc, the Fifth Circuit reversed and ruled that the textual features of § 16(b) weren’t unconstitutionally vague.

[25] Feldman, supra note 17.

[26] “A full and fair hearing is one of the due process rights afforded to aliens in deportation proceedings. … A court will grant a petition on due process grounds only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).

[27] See Ninth Circuit’s recording for James Dimaya v. Loretta E. Lynch, No. 11-71307, available at https://youtu.be/vzqn0H_afkg (last visited Sept. 16, 2017). Judge Callahan’s remark occurs at around the twenty-five minute mark.

[28] Chapman v. United States, 500 U.S. 453 (1991).

[29] Id. at 467-68.

[30] Carissa B. Hessick, Vagueness Principles, 50 Ariz. St. L.J. (2017) (arguing that courts should “look beyond vagueness” to the protect the “principles underlying the vagueness doctrine.”).

[31] Ibid.