Unconstitutional Vagueness: In View of the Grave Nature of Deportation

Vagueness doctrine has primarily been used as a tool for defendants to challenge their convictions or arrests.[1] Its core value is that laws should “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”[2] Two separate justifications backed up this doctrine: first, that the most severe deprivations of liberty can be rightfully implemented only after proper notice (the “notice” component), and second, that the legislature abdicates its responsibility in passing loosely drafted statutes and grants outsized rulemaking power to courts (the “separation of powers” component).[3] The plurality in the instant case focused on the notice component. Once one concedes that deportation is functionally as severe as imprisonment, a rigorous application of the vagueness test is necessary.[4]

The Background of the Instant Case

James Dimaya, a native of the Philippines, lawfully entered the United States in 1992 and lived in California as a legal permanent resident.[5] He was twice convicted of first-degree residential burglary, first in 2007, then again in 2009, and sentenced to a two-year prison term for each offense.[6] Under California law, burglary is defined as entering any of a list of dwellings “with intent to commit . . . any felony.”[7] In 2011, the Department of Homeland Security (DHS) initiated removal proceedings against Dimaya.[8]

Under the INA, an alien is subject to removal if he is “convicted of an aggravated felony at any time after admission.”[9] The statute defines “aggravated felony” by pointing to the criminal code, 18 U.S.C. § 16, and its definition of “crime of violence.”[10] Under § 16(b), the “residual clause,” “any other 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” constitutes a crime of violence.[11]

DHS sought Dimaya’s removal under § 16(b), arguing burglary inherently involved substantial risk of physical force and thus was grounds for removal.[12]

The immigration judge (IJ) agreed, finding that California’s burglary statute, which required entry into a residence, dealt with crimes that “by [their] very nature” likely create risk of violence.[13] Because the crime satisfied § 16(b), the IJ ordered Dimaya deported.[14] The Board of Immigration Appeals (BIA) affirmed.[15]

Dimaya appealed to the Ninth Circuit, arguing that the BIA had erred in classifying California burglary as a § 16(b) crime of violence.[16] While his appeal was pending, the Supreme Court decided  Johnson v. United States, 135 S. Ct. 2551 (2015).[17] There, the Court addressed the Armed Career Criminal Act’s[18] (ACCA) definition of “violent felony,” which — like the statute at issue in Dimaya — included a residual clause, encompassing any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”[19]

The Court held that this residual clause violated the Fifth Amendment’s due process requirement by “den[ying] fair notice to defendants and invit[ing] arbitrary enforcement by judges.”[20] It was unconstitutionally vague and thus void.[21] In light of the Court’s holding in Johnson, the Ninth Circuit ordered supplemental briefing and arguments on the question of whether § 16(b), too, was unconstitutionally vague.[22]

The Ninth Circuit ultimately reversed the BIA.[23] Judge Reinhardt[24], writing for the panel, first explained that both Ninth Circuit and Supreme Court precedent supported applying vagueness doctrine to deportation proceedings because of the “harsh consequences attached.”[25] Then, having affirmed that the INA was subject to Johnson’s vagueness inquiry, Judge Reinhardt compared § 16(b) to ACCA’s infirm language, concluding that the two clauses were similar in all relevant ways, making § 16(b) unconstitutional just as ACCA was.[26]

The Supreme Court affirmed.[27] Writing for the Court, Justice Kagan[28] held § 16(b) unconstitutionally vague.[29]

What is the Government’s Argument?

The Government identified three textual discrepancies between ACCA’s residual clause and Section 16(b) that it claimed make Section 16(b) easier to apply and thus cure the constitutional infirmity.[30]

First, the Government argued that Section 16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction” — in other words, a court applying Section 16(B) may not “consider risks arising after ” the offense’s commission is over.[31]

Second, the Government says that the Section 16(b) inquiry, which focuses on the risk of “physical force,” “trains solely” on the conduct typically involved in a crime.[32] In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.”[33]

Third, the Government notes that Section 16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.”[34]

Additionally, the Government also relies on judicial experience with Section 16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart.[35]

The Supreme Court did not agree with the Government’s arguments

The residual clause of §16(b), defines a “crime of violence” as “any other 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.”[36]

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach.[37] This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk.

To begin, the Court first estimated ACCA’s residual clause, and found it created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was.[38] Compounding that uncertainty, the Court found ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry.[39]

The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”[40] The Court found that Section 16(b) suffers from those same two flaws.[41]

Like ACCA’s residual clause, Section 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like.[42] And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in Section 16(b) with the same result.[43]


Regarding the Government’s arguments, the Court found them unpersuasive. Johnson found the statute impermissibly vague, and the legislature must make the statutory inquiry more determinate in order to remain constitutional.[44]

As for the first argument, the Court disagreed with it and pointed out that it is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later.[45] So with or without the temporal language, a court applying the ordinary case approach, whether in Section 16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed.[46] The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statute’s indeterminacy Johnson described.[47]

As for the second argument made by the Government, the Court made it clear that “physical force” means “force capable of causing physical pain or injury.”[48] Therefore, under Section 16(b) a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court’s analysis of whether a crime qualifies as violent.[49]

Finally, the Court found those enumerated crimes, which listed in Section 16(b) were in fact too varied to assist this Court in giving ACCA’s residual clause meaning.[50] To say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem.[51]

Moreover, the Court found that, in fact, a host of issues respecting Section 16(b)’s application to specific crimes divide the federal appellate courts.[52] And while this Court has only heard oral arguments in two Section 16(b) cases, this Court vacated the judgments in a number of other Section 16(b) cases, remanding them for further consideration in light of ACCA decisions.[53]


On the whole, Justice Kagan’s diagnosis was accurate: “Johnson[was] a straightforward decision, with equally straightforward application” in Dimaya.[54] Once the Court had done the analysis in Johnson, the only real question in Dimaya was whether or not the Court would extend this due process protection to deportation cases. Because the Court has previously acknowledged that deportation is just as severe as incarceration,[55] justice demanded Johnson’s application here.

Narrow though it is, the Court’s opinion could, if wielded by a deregulation-minded majority, do dramatic damage to the administrative state. While vagueness doctrine properly applies to civil deprivations that closely resemble criminal ones, the doctrine could easily be extended too far, doing violence to regulatory schemes that require some degree of vagueness to be effective, but that do not deprive individuals of their liberty in the same urgent way. Perhaps what is most important about Dimaya is what it did not do: it failed to give future courts binding precedent about how the vagueness doctrine should be extended (or not) going forward.

Although the Court made the important move of applying Johnson to a civil law, it failed to agree on why it chose to do so and what that means for future cases. If, going forward, the Court hopes to protect vagueness doctrine from the type of foundation-shifting expansion that Justice Gorsuch advocated in Dimaya, it ought to develop a robust test for determining where and how it will apply the vagueness doctrine outside of the criminal and removal contexts.

Ad hoc extension of vagueness doctrine could create arbitrary and unpredictable outcomes in individual cases — exactly what the doctrine is trying to prevent. The Court should look to its procedural due process precedent to develop a standard against which to judge the relative severity of various deprivations. In those cases, the Court has drawn precisely the lines Justice Gorsuch’s concurrence challenged the Court to draw and provided the Court with ample analogies against which to measure civil harms when determining their severity.

  1. See Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 280 (2003) (“For more than 125 years, the Supreme Court has evaluated defendants’ claims that criminal statutes are unconstitutionally vague . . . .”).
  2.  Id. at 284 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
  3. Id. at 284–85. 
  4. See Sessions v. Dimaya, 138 S. Ct. at 1213, 200 L. Ed. 2d 549 (2018)(plurality opinion) (citing De George, 341 U.S. at 231).
  5. Dimaya v. Lynch, 803 F.3d 1110, 1111 (9th Cir. 2015). 
  6. Id.
  7. Id. at 1118 (quoting Cal. Penal Code § 459 (West 2017)).
  8. Id. at 1111.
  9. 8 U.S.C. § 1227(a)(2)(A)(iii).
  10. Id. § 1101(a)(43)(F). 
  11. 18 U.S.C. § 16(b) (2012). 
  12. 8 U.S.C. § 1101(a)(43)(F).
  13. Id. at 1112 (quoting IJ opinion). 
  14. Id. The INA also requires that a crime of violence carry a term of imprisonment of at least one year, which Dimaya’s did. 8 U.S.C. § 1101(a)(43)(F).
  15. Dimaya, 803 F.3d at 1112.
  16. Id.
  17. Id.
  18. 18 U.S.C. § 924 (2012).
  19. Id. § 924(e)(2)(B)(ii).
  20. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015).
  21. Id.
  22. Dimaya, 803 F.3d at 1112.
  23. Id. at 1111.
  24. Judge Reinhardt was joined by Judge Wardlaw.
  25. Dimaya, 803 F.3d at 1113 (quoting Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013)).
  26. See id. at 1114–17. Judge Callahan, writing in dissent, disagreed that the “twin concerns” from Johnson“infect[ed]” § 16(b). See id. at 1120 (Callahan, J., dissenting).
  27. Sessions, 138 S. Ct. at 1223.
  28. Justice Kagan wrote for the Court with respect to Parts I, III, IV-B, and V; she was joined by Justices Ginsburg, Breyer, Sotomayor, and Gorsuch. She also delivered an opinion for Parts II and IV-A, where she was joined by Justices Ginsburg, Breyer, and Sotomayor.
  29. Sessions, 138 S. Ct. at 1210. 
  30. Id. at 1208.
  31. Id.
  32. Id.
  33. Id.
  34. Id.
  35. Id. at 1209.
  36. Id. at 1207.
  37. Id.
  38. Id. at 1207-1208.
  39. Id. at 1208.
  40. Id.
  41. Id.
  42. Id.
  43. Id.
  44. Id.
  45. Id.
  46. Id.
  47. Id.
  48. Id.
  49. Id.
  50. Id.
  51. Id. at 1208-1209.
  52. Id. at 1209.
  53. Id.
  54. Id. at 1213 (majority opinion).
  55. See, e.g., Jordan v. De George, 341 U.S. 223, 231 (1951); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).