New York Times

Justices Hear a Case on the Federal Government’s Power to Deport Criminals

January 18, 2017

by Adam Liptak

WASHINGTON — The Supreme Court considered on Tuesday how broad the government’s authority is to deport immigrants who commit serious crimes.

The question was in one sense fairly technical, concerning whether a federal law on the subject was unconstitutionally vague. In another sense, though, the argument was part of a larger debate over the nation’s immigration laws, which President-elect Donald J. Trump has pledged to enforce vigorously.

Justice Sonia Sotomayor said the laws have grown increasingly draconian.

“We have many more criminal sanctions with harsher sentences now,” she said. “Today what’s at stake is a lot more than what was at stake decades ago.”

Edwin S. Kneedler, a deputy solicitor general, said there was another side to the question.

“What’s at stake can’t be viewed just from that perspective,” he said. “What’s at stake is the fact that the immigration laws are vital to the nation’s national security and foreign relations and the safety and welfare of the country.”

The case, Lynch v. Dimaya, No. 15-1498, concerns James Dimaya, a native of the Philippines who became a lawful permanent resident in 1992, when he was 13. In 2007 and 2009, he was convicted of residential burglary.

The government sought to deport him on the theory that he had committed an “aggravated felony,” which the immigration law defines to include any offense “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.”

In 2015, in Johnson v. United States, the Supreme Court ruled that a similar criminal law was unconstitutionally vague. The United States Court of Appeals for the Ninth Circuit, in San Francisco, said the reasoning in the Johnson case also doomed the provision of the immigration law.

When the Johnson case was before the Supreme Court, the government warned that a ruling striking down the law at issue there would make the law that was the subject of Tuesday’s case “equally susceptible” to constitutional attack.

Both laws, the government said then, require courts to identify features of a hypothetical typical offense and then to judge the risk of violence arising from them.

Justice Elena Kagan, quoting from Justice Antonin Scalia’s majority opinion in the 2015 case, asked how judges are to decide the features of a typical offense.

Should they use, she asked, “a statistical analysis” of reported decisions? “A survey? Expert evidence? Google? Gut instinct?”

“So that’s a multiple-choice test,” Justice Kagan said, suggesting that all of the choices risked unconstitutional vagueness. “What do we do?”

Mr. Kneedler said there were important distinctions between the two cases, notably that the one in 2015 arose from a criminal prosecution and the one at issue on Tuesday from an immigration proceeding, which is a civil action.

In its brief in Tuesday’s case, the government said civil laws are almost never so vague as to violate the Constitution. “Although the court has on occasion tested civil provisions for vagueness,” the brief said, “it has struck down those provisions under the due process clause because they were so unintelligible as to effectively supply no standard at all.”

A 1951 Supreme Court decision, Jordan v. De George, indicated that both criminal and immigration laws should be tested against the same constitutional standard for vagueness “in view of the grave nature of deportation.”

Mr. Kneedler asked the justices not to place too much weight on that observation, saying the question had not been raised in the briefs at the time. Justice Anthony M. Kennedy did not seem to think that mattered.

“Something has to be briefed before we say it’s the law?” he asked.

E. Joshua Rosenkranz, a lawyer for Mr. Dimaya, said the 1951 case concluded the matter.

“In our view and in the view of all of the lower courts,” he said, “Jordan settles the question on whether it’s the same standard for criminal deportation.”

But Justice Samuel A. Alito Jr. said that extending scrutiny that applies to criminal laws challenged for vagueness to civil ones would be a major step.

“It certainly is true that deportation has more severe consequences than the typical civil case,” he said. “But there are many other civil cases that can have a devastating impact on someone, such as child custody, loss of a professional license, complete destruction of a business, loss of the home.”