When Congress introduced “aggravated felony” to the list of deportable offenses (8 U.S.C. § 1101(a)(43) (1988)) in the Immigration and Nationality Act, the term referred only to murder, federal drug trafficking, and the illicit trafficking of certain firearms and destructive devices. In subsequent pieces of legislation, including the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the legislature expanded the definition.
Today, “aggravated felony” covers offenses including theft, tax evasion, and failure to appear in court (8 U.S.C. § 1101(a)(43) (G, M, Q)). Further, many aggravated felonies, like fraud, also fall within another ambiguous immigration law category that leads to deportation: “crimes involving moral turpitude” (8 U.S.C. § 1251(a)(2)(A)(i)). While “crimes involving moral turpitude” withstood a vagueness challenge before the Supreme Court in the 1950s, the decision, Jordan v. De George, also established that courts may review immigration removal provisions under constitutional vagueness doctrine typically applied in the criminal context.
In two cases this term, Esquivel-Quintana v. Sessions and Sessions v. Dimaya,the Supreme Court confronts the repercussions of the amorphous category of “aggravated felony.” Esquivel-Quitana employs a statutory interpretation framework and Dimaya raises constitutional questions; together, these cases allow the Court to engage comprehensively with the aggravated felony standard.
To start, it’s helpful to appreciate the background to these cases:
Esquivel-Quintana concerns the immigration offense of “sexual abuse of a minor,” which constitutes an aggravated felony. Initially, a lawful permanent resident had sex with his sixteen-year-old girlfriend while he was twenty, which is “unlawful sexual intercourse with a minor” under California law. The lawful permanent resident later moved to Michigan, where his act would have been lawful. Once he was there, however, the Sixth Circuit determined that the California conviction qualified as sexual abuse of a minor, which subjected the lawful permanent resident to deportation.
Dimaya involves the immigration offense known as a “crime of violence,” which is also a category of aggravated felony. The noncitizen in the case committed two burglaries without any actual violence. By applying Jordan and Johnson v. United States—which held that the Armed Career Criminal Act’s definition of “violent felony” is unconstitutionally vague—the Ninth Circuit decided that “crime of violence” is void for vagueness as well.
At first glance, “sexual abuse of a minor” and “crime of violence” might seem like reasonable bases on which to determine whether an aggravated felony occurred. However, in Esquivel-Quintana, the government sought to deport a lawful permanent resident because of an act that was not an aggravated felony in the state in which it happened, and was not even a crime in the state to which he moved. Further, it supported this position by claiming that it is appropriate to allow the criminal statute of one state to direct the meaning of “sexual abuse of a minor” under federal immigration law. Additionally, in Dimaya, the government asserted that a non-violent burglary should be characterized as a crime of violence by arguing that the due process clause’s prohibition of vagueness should not be applied to immigration law, despite the longstanding precedent to the contrary established by Jordan.
Evidently, the definition of aggravated felony is in need of clarification.
Since an aggravated felony designation for even a single conviction triggers deportability and bars relief from deportation—and since frontline immigration officials can sometimes quickly remove foreign nationals convicted of aggravated felonies—it is only fair that the designation’s criteria be reasonably limited in scope and relatively easy to apply. Unfortunately, the government’s positions in Esquivel-Quintana and Dimaya demonstrate that it does not wish to establish a level of precision that would allow noncitizens to anticipate the immigration consequences of their criminal convictions. At least in regards to Dimaya, this is because the government views doing so as at odds with its plenary power in the immigration context.
In Esquivel-Quintana, the Supreme Court rejected the government’s stance. In a unanimous decision issued a month ago (and in which Justice Gorsuch took no part), Justice Thomas held in favor of the lawful permanent resident. In particular, the opinion utilized the categorical approach, which requires that “‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” By applying this approach, Justice Thomas determined that the petitioner committed an “‘aggravated felony’ under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor.” The Court thus resisted the “Government’s definition[, which] turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted.”
The Court came to this determination through complicated means, including reliance on legislative history and consultation of legal and non-legal dictionaries. Arguably, that does not bode well for the statutory interpretation performed by an ordinary immigration or criminal attorney. Nonetheless, at least the Court established a basis for application of the aggravated felony designation that is not dependent on the idiosyncrasies of state criminal law.
In Dimaya, for which re-argument was ordered earlier this week in lieu of an opinion, the Supreme Court has the chance to apply ordinary constitutional law in order to encourage a more just execution of the aggravated felony standard. Jordan and Johnson ensure that the Court can draw on established precedent in order to affirm the Ninth Circuit’s decision that the term “crime of violence” is unconstitutionally vague. In doing so, the Court would further the thrust of its decision in Esquivel-Quintana: that it is the federal government’s responsibility to define immigration violations—and in particular, aggravated felonies—precisely.