Dimaya v. Lynch, No. 11-71307 (9th Cir. 2015)
Annotate this CasePetitioner, a native and citizen of the Philippines, seeks review of the BIA's determination that a conviction for burglary under California Penal Code Section 459 is categorically a “crime of violence” as defined by 8 U.S.C. 1101(a)(43)(F). While the petition was pending, the Supreme Court decided Johnson v. United States, which held that the Armed Career Criminal Act's (ACCA), 18 U.S.C. 924, residual clause definition of a violent felony is unconstitutionally vague. The court reaffirmed that petitioner may bring a void for vagueness challenge to the definition of a crime of violence in the INA. The court held that, as with the ACCA, 18 U.S.C. 16(b) requires courts to 1) measure the risk by an indeterminate standard of a “judicially imagined ‘ordinary case,’” not by real world-facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial. Pursuant to Johnson, these uncertainties render the INA provision unconstitutionally vague. Accordingly, the court granted the petition and remanded for further proceedings.
Court Description: Immigration. The panel granted James Garcia Dimaya’s petition for review of the Board of Immigration Appeals’ decision holding that his conviction for burglary under California Penal Code § 459 is a categorical “crime of violence” as defined by 8 U.S.C. § 1101(a)(43)(F). Reaffirming that a noncitizen may bring a void for vagueness challenge to the definition of a crime of violence in the Immigration and Nationality Act, the panel held that the language in 18 U.S.C. § 16(b), which is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence, is unconstitutionally vague. The panel held that § 16(b)’s language suffers from the same indeterminacy the Supreme Court found in the Armed Career Criminal Act’s “residual clause” definition of a violent felony in Johnson v. United States, 135 S. Ct. 2551 (2015). Dissenting, Judge Callahan would find that 18 U.S.C. § 16(b) is not unconstitutionally vague pursuant to Johnson. DIMAYA V. LYNCH 3
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