“Crime of Violence” Aggravated Felony Litigation The Federal Immigration Litigation Clinic (FILC) at the University of Minnesota, James H. Binger Center for New Americans represented three clients in the same constitutional challenge to 18 U.S.C. § 16(b). That statutory provision defines “crime of violence” and is incorporated into the Immigration and Nationality Act’s list of aggravated felonies. Each of the three clients had been convicted of a criminal offense which was determined to be a “crime of violence” under § 16(b). Based on those convictions, each client was ordered removed. In challenging their removability, each argued at the Board of Immigration Appeals (BIA) that § 16(b) was unconstitutional under the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015). Section 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.” In order to determine this “substantial risk” of the use of force, courts have employed the categorical approach, which the Supreme Court recently identified as problematic in Johnson v. United States, 135 S. Ct. 2551 (2015). The Johnson court found ACCA’s residual clause, a statute with language strikingly similar to § 16(b)’s, to be unconstitutional because it left uncertain how courts would a) “estimate the risk posed by a crime” and b) determine “how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557–58. FILC argued, as did the lawyers for Dimaya, that § 16(b) suffered from the same defects and ought to be found to be unconstitutionally vague. FILC students and attorneys brought the appeal to the Eighth Circuit, where the case is currently stayed pending the outcome of the Supreme Court’s consideration of Sessions v. Dimaya. Analogizing to Johnson, each client had argued that § 16(b) was unconstitutionally vague because, like ACCA, it required judges to envision the typical ways in which a crime would be committed as well as the level of risk that was required to make such a conviction a “crime of violence.” Arising in the Ninth Circuit, Dimaya presents the same constitutional challenge to 16(b). That case was argued January 17, 2017 and will likely be decided later this term. The Supreme Court will soon decide whether § 16(b) is unconstitutionally vague. If the Court decides that it is, any order of removal entered under the auspices of § 16(b) will be subject to a challenge. On the other hand, if the Court determines that § 16(b) is in fact constitutional, challenges to removal orders will only be available under the classic “categorical approach.” Like for FILC’s clients, this will involve arguing that a particular conviction is not categorically a “crime of violence,” under the Dimaya ruling, because there is no “substantial risk” of the use of physical force in the commission of the crime. Alternatively, the Dimaya decision may not fully be resolved if there is a 4–4 split. In that case, Circuit Courts that have not already done so, like the Eighth Circuit, may be forced to rule on the constitutionality of § 16(b); lawyers in those Circuits, and here in the Eighth Circuit, should argue both the constitutionality of § 16(b) as well as that their client’s crimes do not constitute “crimes of violence.” Any attorney with a client who was ordered removed on the basis of § 16(b) should argue its constitutionality so as to preserve the issue for appeal in the event that Dimaya is decided favorably for those clients. James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9 page 1
56
Embed
“Crime of Violence” Aggravated Felony Litigation The ... · “Crime of Violence” Aggravated Felony Litigation The Federal Immigration Litigation Clinic ... De George, 341 U.S.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
“Crime of Violence” Aggravated Felony Litigation The Federal Immigration Litigation Clinic (FILC) at the University of Minnesota, James H. Binger Center for New Americans represented three clients in the same constitutional challenge to 18 U.S.C. § 16(b). That statutory provision defines “crime of violence” and is incorporated into the Immigration and Nationality Act’s list of aggravated felonies. Each of the three clients had been convicted of a criminal offense which was determined to be a “crime of violence” under § 16(b). Based on those convictions, each client was ordered removed. In challenging their removability, each argued at the Board of Immigration Appeals (BIA) that § 16(b) was unconstitutional under the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015). Section 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.” In order to determine this “substantial risk” of the use of force, courts have employed the categorical approach, which the Supreme Court recently identified as problematic in Johnson v. United States, 135 S. Ct. 2551 (2015). The Johnson court found ACCA’s residual clause, a statute with language strikingly similar to § 16(b)’s, to be unconstitutional because it left uncertain how courts would a) “estimate the risk posed by a crime” and b) determine “how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557–58. FILC argued, as did the lawyers for Dimaya, that § 16(b) suffered from the same defects and ought to be found to be unconstitutionally vague. FILC students and attorneys brought the appeal to the Eighth Circuit, where the case is currently stayed pending the outcome of the Supreme Court’s consideration of Sessions v. Dimaya. Analogizing to Johnson, each client had argued that § 16(b) was unconstitutionally vague because, like ACCA, it required judges to envision the typical ways in which a crime would be committed as well as the level of risk that was required to make such a conviction a “crime of violence.” Arising in the Ninth Circuit, Dimaya presents the same constitutional challenge to 16(b). That case was argued January 17, 2017 and will likely be decided later this term. The Supreme Court will soon decide whether § 16(b) is unconstitutionally vague. If the Court decides that it is, any order of removal entered under the auspices of § 16(b) will be subject to a challenge. On the other hand, if the Court determines that § 16(b) is in fact constitutional, challenges to removal orders will only be available under the classic “categorical approach.” Like for FILC’s clients, this will involve arguing that a particular conviction is not categorically a “crime of violence,” under the Dimaya ruling, because there is no “substantial risk” of the use of physical force in the commission of the crime. Alternatively, the Dimaya decision may not fully be resolved if there is a 4–4 split. In that case, Circuit Courts that have not already done so, like the Eighth Circuit, may be forced to rule on the constitutionality of § 16(b); lawyers in those Circuits, and here in the Eighth Circuit, should argue both the constitutionality of § 16(b) as well as that their client’s crimes do not constitute “crimes of violence.” Any attorney with a client who was ordered removed on the basis of § 16(b) should argue its constitutionality so as to preserve the issue for appeal in the event that Dimaya is decided favorably for those clients.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 1
No. 16-1428
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Kong Meng Xiong, Petitioner
v.
Loretta E. Lynch Attorney General of the United States, Respondent
PETITION FOR REVIEW FROM THE UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS
AGENCY CASE NUMBER: A028 077 173
PETITIONER’S OPENING BRIEF
Nadia Anguiano-Wehde John Bruning Charles Barrera Moore Certified Student Attorneys Benjamin Casper MN #0276145 Julia Decker MN #0396438 Supervising Attorneys University of Minnesota Law School Center for New Americans 229 19th Avenue South Minneapolis, MN 55455 612-625-5515
Attorneys for Petitioner Kong Meng Xiong
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 2
i
SUMMARY OF THE CASE
The BIA’s decision that Xiong’s misdemeanor burglary conviction was a
“crime of violence” aggravated felony should be reversed because the Supreme
Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015), that the
residual clause of the Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague, applies with equal force to 18 U.S.C. § 16(b). Section
16(b)’s operation under the categorical approach is indistinguishable. Because
§ 16(b), which served as the basis for Xiong’s removal order and his ineligibility to
apply for cancellation of removal, is unconstitutionally vague, this Court should
reverse the BIA’s holding that Xiong’s conviction was a “crime of violence” and
remand for further review.
Alternatively, if § 16(b) is constitutional, this Court should hold that Xiong’s
second degree burglary conviction is not a “crime of violence” aggravated felony.
Under Moncrieffe’s “minimum conduct” analysis, 133 S. Ct. 1678, 1684 (2013),
Xiong’s statute of conviction poses no substantial risk of the use of force because it
allows for conviction when a defendant gains entry to an unoccupied dwelling
without force or the intent to commit a crime, and commits a non-violent offense
argument of twenty minutes per side to present this important issue to the Court.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 3
ii
TABLE OF CONTENTS
SUMMARY OF THE CASE ...................................................................................... i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF JURISDICTION.......................................................................... 1 STATEMENT OF ISSUES ....................................................................................... 2 STATEMENT OF THE FACTS AND CASE .......................................................... 3 SUMMARY OF ARGUMENT ............................................................................... 12 ARGUMENT ........................................................................................................... 15
I. Standard of Review ............................................................................. 15
II. Xiong’s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a “Crime of Violence” Under 18 U.S.C. § 16(b) Because That Statutory Provision Is Unconstitutionally Vague ...................... 15
A. Johnson Holds ACCA’s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes ...................... 16
B. Like ACCA’s Residual Clause, 18 U.S.C. § 16(b) Is Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes ...................................................................................... 20
III. Alternatively, Even if 18 U.S.C. § 16(b) Is Constitutional, a Conviction Under Minn. Stat. § 609.582, Subd. 2(a)(1) Is Categorically Not a “Crime of Violence” Under § 16(b) ................... 30
A. “Minimum Conduct” Is the Proper Categorical Analysis Under § 16(b) After the Supreme Court Abrogated the “Ordinary Case” Approach in Johnson ..................................................... 30
B. Under the Correct “Minimum Conduct” Test, Second-Degree Burglary Does Not Pose a “Substantial Risk” of Force ........... 32
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 8
12
SUMMARY OF ARGUMENT
This Court should hold that § 16(b) is unconstitutionally vague, and on this
basis reverse the BIA’s decision that Xiong’s conviction for second degree
burglary can be a “crime of violence” aggravated felony. In Johnson v. United
States, the Supreme Court held that the residual clause of ACCA was
unconstitutionally vague. 135 S. Ct. 2551 (2015). In so holding, the Supreme Court
invalidated a statute that bears striking similarities to 18 U.S.C. § 16(b), the statute
under which Xiong was found to have a conviction for a “crime of violence”
aggravated felony. The Supreme Court found that the analysis required by
ACCA’s residual clause was unconstitutional because inquiring into the nature and
extent of risk for a given crime “under the categorical approach required courts to
assess the hypothetical risk posed by an abstract generic version of the offense.”
Welch v. United States, 136 S. Ct. 1257, 1262 (2016).
Section 16(b) suffers from this same defect because it requires a court to
apply an inexact standard both in determining the level of risk posed by a given
offense and the amount of risk necessary to meet an undetermined threshold of
“substantial risk.” See Johnson, 135 S. Ct. at 2257–58. The two circuit courts that
have made a final determination on Johnson’s applicability to § 16(b) have found
the statute to be unconstitutional. See United States v. Vivas-Ceja, 808 F.3d 719
(7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). This Court
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 9
13
should similarly find § 16(b) to be unconstitutional because, like the statute in
Johnson, it requires a judge to engage in an imprecise inquiry into the “nature of
the crime” as well as an estimation of the “substantial risk” presented by a given
offense. See 18 U.S.C. § 16(b). Therefore, this Court ought to grant Xiong’s
petition for review, reverse the BIA’s holding that Xiong’s second degree burglary
conviction is a “crime of violence” aggravated felony, and remand for review by
the BIA.
Alternatively, if the Court finds § 16(b) to be constitutional, it should still
reverse the decision of the BIA because, in reaching its conclusion that Xiong had
a “crime of violence” aggravated felony, the BIA erroneously applied the
“ordinary case” framework, which the Supreme Court abrogated in Johnson.
Johnson identified the defects of the “ordinary case” approach and concluded that
those defects made ACCA’s residual clause unconstitutional, thus rejecting the
“ordinary case” approach altogether. Johnson, 135 S. Ct. at 2560. Under the
proper “minimum conduct” standard, Xiong has not been convicted of an
aggravated felony because the Minnesota statute allows for a conviction in
scenarios in which no force is used to gain entry into an unoccupied building, there
is no intent to commit a crime upon entry, and the individual commits a
misdemeanor, non-violent crime therein. The BIA erred when it determined that all
burglaries were “crime of violence” aggravated felonies, as a proper element-based
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 10
14
analysis would have revealed that second degree burglary under Minn. Stat.
§ 609.582, Subd. 2(a)(1) does not categorically involve a “substantial risk of
physical force.”
Even if the Court deems the “ordinary case” approach proper to apply to
§ 16(b), the BIA erred in concluding that the ordinary case of second degree
burglary presents a substantial risk that physical force will be used. Employing
either mode of analysis, the Court should reverse the decision of the BIA that
Xiong’s conviction for second degree burglary was a “crime of violence”
aggravated felony and remand to the BIA for a decision consistent with this
Court’s holding.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 11
15
ARGUMENT
I. Standard of Review
This Court reviews challenges to the constitutionality of a federal statute de
novo. United States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010); United
States v. Howell, 552 F.3d 709, 712 (8th Cir. 2009). This Court also reviews
questions of law de novo, including whether the BIA applied the correct legal
standard. Doe v. Holder, 651 F.3d 824, 829 (8th Cir. 2011).
II. Xiong’s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a “Crime of Violence” Under 18 U.S.C. § 16(b) Because That Statutory Provision Is Unconstitutionally Vague
Xiong’s conviction for second degree burglary under Minn. Stat. § 609.582,
Subd. 2(a) cannot lawfully be classified as a “crime of violence”—and thus this
Court should reverse and remand—because 18 U.S.C. § 16(b) is unconstitutionally
vague. Like ACCA’s residual clause, which the Supreme Court struck down in
Johnson v. United States, 135 S. Ct. 2551 (2015), § 16(b) is also unconstitutionally
vague because it requires courts to apply an “ordinary case” categorical analysis to
an inherently imprecise statutory definition, yielding an impermissibly vague
standard. As was held in Johnson, such analytical framework contravenes the
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 12
16
Constitution by “produc[ing] more unpredictability and arbitrariness than the Due
Process Clause tolerates.”8 See Johnson, 135 S. Ct. at 2557–58.
To understand the shared characteristics of § 16(b) and ACCA’s residual
clause that render both provisions unconstitutionally vague, it is necessary to begin
with a short review of Johnson’s holding and reasoning.
A. Johnson Holds ACCA’s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes
In Johnson, the Supreme Court held that imposing increased sentences under
ACCA’s residual clause “denies due process of law” because the residual clause is
unconstitutionally vague. Johnson, 135 S. Ct. at 2556–57. Under ACCA,
sentences for violation of certain firearm offenses can be enhanced if the violator
has three or more prior convictions for a “violent felony.” ACCA defines “violent
felony” as:
“any crime punishable by imprisonment for a term exceeding one year . . . that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
8 Though Johnson arose in the criminal law context, the vagueness doctrine applies in immigration cases as well. See infra note 10.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 13
17
Subsection (i) of the violent felony definition is referred to as the “elements
clause,” and the italicized portion of subsection (ii) is the so-called “residual
clause.” Welch v. United States, 136 S. Ct. 1257, 1261 (2016). Generally, to
determine whether a particular crime qualifies as a violent felony under ACCA,
courts employ the categorical approach. Taylor v. United States, 495 U.S. 575,
600-02 (1990). “Under the categorical approach, a court assesses whether a crime
qualifies as a violent felony ‘in terms of how the law defines the offense and not in
terms of how an individual offender might have committed it on a particular
occasion.’” Johnson, 135 S. Ct. at 2557 (quoting Begay v. United States, 553 U.S.
137, 141 (2008)). That is, courts focus on statutory elements only, and make a
categorical determination of whether a crime fits the violent felony definition
without regard to the conduct that the particular defendant engaged in. See
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
In James v. United States, 550 U.S. 192 (2007), the Supreme Court
established the “ordinary case” framework for determining whether crimes were
categorically violent felonies under the residual clause. Ultimately deemed
unworkable by Johnson, James’s “ordinary case” framework required courts to
conjure up an idealized “ordinary” version of the crime in question, and then assess
whether that abstraction reached the quantum of risk necessary to qualify as a
violent felony. See Johnson, 135 S. Ct. at 2557. In Johnson, the Court lamented its
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 14
18
failed attempts at applying James’s “ordinary case” framework to residual clause
cases in a principled and consistent manner, and ultimately concluded that the
residual clause’s operation under this framework violated due process. Id. at 2558–
60.
More specifically, the Supreme Court concluded that two “features” of
ACCA’s residual clause combined to make it unconstitutionally vague. Id. at 2557.
First, the Court reasoned that through James’s “ordinary case” directive that courts
imagine an idealized ordinary version of a crime, the residual clause left grave
uncertainty as to how courts were to estimate the potential risk posed by a crime
because the residual clause offered no guidance for determining what the ordinary
case of a crime was. Id. at 2557–58. Instead, the Johnson Court noted, courts were
simply left to speculate: “To take an example, does the ordinary instance of
witness tampering involve offering a witness a bribe? Or threatening a witness
with violence?” Id. at 2557. The residual clause, the Johnson Court reasoned,
simply offers no reliable way to choose between competing formulations of what
the “ordinary” version of a crime is. Id. at 2558.
Second, the Johnson Court concluded that the residual clause left uncertainty
about the quantum of risk necessary to fall within its scope. 135 S. Ct. at 2558. In
other words, the Court wasn’t only troubled by James’s mandate that judges
fabricate the idealized ordinary version of a crime; the Court was also troubled by
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 15
19
the residual clause’s failure to provide sufficient guidance for determining if that
ordinary case reached the quantum of risk necessary to qualify as a violent felony.
Id. As the Court noted, “[i]t is one thing to apply an imprecise ‘serious potential
risk’ standard to real-world facts; it is quite another to apply it to a judge-imagined
abstraction.” Id. Without enough guidance to evaluate when the risk of the
idealized ordinary version of the crime was serious enough to cross the inherently
imprecise “serious potential risk” threshold, the residual clause left courts in a state
of unresolvable doubt. See id. at 2258–60.
As the Supreme Court summarized it, “the residual clause failed not because
it adopted a ‘serious potential risk’ standard but because applying that standard
under the categorical approach required courts to assess the hypothetical risk posed
by an abstract generic version of the offense.” Welch v. United States, 136 S. Ct.
1257, 1262 (2016). By combining the indeterminacy of the failed “ordinary case”
categorical method for measuring risk with the indeterminacy about the quantum
of risk necessary for a crime to qualify as a violent felony, the residual clause
“produces more unpredictability and arbitrariness than the Due Process Clause
tolerates.” Johnson, 135 S. Ct. at 2558.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 16
20
B. Like ACCA’s Residual Clause, 18 U.S.C. § 16(b) Is
Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes
Like ACCA’s residual clause, 18 U.S.C. § 16(b) is also unconstitutionally
vague—and should be struck down by this Court—because it requires courts to
employ the same failed “ordinary case” analytical framework against an inherently
imprecise statutory standard. As recognized by the Seventh and Ninth Circuits, 18
U.S.C. § 16(b) suffers from the same key indeterminacies as ACCA’s residual
clause because it “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.” Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015);
accord United States v. Vivas-Ceja, 808 F.3d 719, 722–23 (7th Cir. 2015).9 As the
Johnson Court made clear, such fatal combination violates the Fifth Amendment’s
guarantee of due process, see Johnson, 135 S. Ct. at 2558, and this Court should
thus strike down § 16(b) as unconstitutionally vague.
9 The question of § 16(b)’s constitutionality in light of Johnson has also come before the Fifth Circuit. In United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), a panel of that circuit agreed with the Seventh and Ninth Circuits and held that § 16(b) was unconstitutionally vague under Johnson. The Fifth Circuit later granted rehearing en banc of Gonzalez-Longoria, and oral argument is scheduled for May 24, 2016.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 17
21
It is important to note that though Johnson considered a criminal statute,
“[i]t is well established that the Fifth Amendment entitles [noncitizens] to due
process of law in deportation proceedings.” See Demore v. Kim, 538 U.S. 510, 523
(2003) (alteration in original) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)).
Thus, Johnson’s reasoning is squarely applicable to Xiong’s challenge that § 16(b)
is unconstitutionally vague in the context of his deportation proceedings.10
Because § 16(b) is unconstitutionally vague, it cannot form the basis of
Xiong’s order of removal. Under the INA, a conviction for an “aggravated felony”
renders any non-citizen, including long-term permanent residents, removable and
statutorily ineligible for virtually all forms of relief from removal, including
1101(a)(43)(F) of Title 8 defines “aggravated felony” through a list of categories
of offenses, one type of which is a “crime of violence” for which the term of
10 While the Supreme Court has not previously struck down as unconstitutionally vague any statutory grounds for deportation, it has acknowledged that unconstitutionally vague statutory grounds for deportation would not be enforceable. Jordan v. De George, 341 U.S. 223, 231 (1951) (“Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.”). Several circuit courts have also considered void for vagueness challenges to immigration statutes. See Dimaya v. Lynch, 803 F.3d 1110, 1112–14 (9th Cir. 2015); Mhaidli v. Holder, 381 F.App’x 521, 525–26 (6th Cir. 2010) (unpublished); Arriaga v. Mukasey, 521 F.3d 219, 222–23 (2d Cir. 2008); Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008).
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 18
22
imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). “Crime of violence,”
in turn, is defined by 18 U.S.C. § 16 as:
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) 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.” 18 U.S.C. § 16 (emphasis added).
To determine whether an offense is a “crime of violence” under this statute,
courts employ the categorical approach. See Leocal v. Ashcroft, 543 U.S. 1, 7
(2004) (Section 16’s “language requires us to look to the elements and the nature
of the offense of conviction, rather than to the particular facts relating to
petitioner’s crime.”). Indeed, though there are relatively few Eighth Circuit
decisions considering whether a particular offense is a “crime of violence” under
§ 16(b), when this Court has had occasion to consider the issue, it has made clear
that it does not look to the facts underlying the particular conviction, but instead
must apply the categorical approach and look at the “nature of the offense” as
mandated by the § 16(b) statutory text. United States v. Torres-Villalobos, 487
F.3d 607, 614–15 (8th Cir. 2007) (citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004))
(emphasis added).
More specifically, analysis under § 16(b) requires this Court to make a
categorical determination of whether the offense “naturally involve[s] a person
acting in disregard of the risk that physical force might be used against another in
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 19
23
committing an offense.” Leocal, 543 U.S. at 10; Torres-Villalobos, 487 F.3d at
615. Critically, such inquiry into the “nature” of a particular crime, to determine if
the crime “naturally” involves the risk that force “might” be used, is plagued by the
same indeterminacy inherent in the “ordinary case” analysis that conspired to
render ACCA’s residual clause unconstitutional. Just as ACCA’s residual clause
posed an irresolvable question about whether an idealized “ordinary” offense
would “involve conduct” that poses a potential risk of physical injury, § 16(b)
poses an equally irresolvable question about whether an idealized “ordinary”
version of an offense “by its nature” involves a substantial risk that force may be
used.
The language of § 16(b) is in fact so similar to that of ACCA’s residual
clause that prior to Johnson, all circuit courts to have addressed the issue had
imported the residual clause’s now discredited “ordinary case” standard into their
§ 16(b) jurisprudence.11 The Dimaya Court expressly acknowledged that the
11 See United States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015) (“All other circuits to examine the issue have held the proper inquiry under § 16(b) is whether the conduct encompassed by the elements of the offense raises a substantial risk the defendant may use physical force in the ‘ordinary case,’ even though, at the margin, some violations of the statute may not raise such risk.”); United States v. Avila, 780 F.3d 1100, 1107 (4th Cir. 2014) (quoting James v. United States, 550 U.S. 192, 208 (2007)) (applying James’s “ordinary case” standard to § 16(b) analysis); United States v. Fish, 758 F.3d 1, 10–14 (1st Cir. 2014) (applying “ordinary case” standard to § 16(b)); Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013) (same); Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009) (same); United States v. Sanchez-Garcia, 501 F.3d 1208, 1213 (10th
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 20
24
“ordinary case” framework was the proper mode of analysis for § 16(b) cases.
both § 16(b) and the residual clause must decide what a ‘“usual or ordinary”
violation’ of the statute entails and then determine how great a risk of injury that
‘ordinary case’ presents.”). The Dimaya Court therefore held that the Johnson
Court’s reasoning “applies with equal force to the similar statutory language and
identical mode of analysis used to define a crime of violence” under § 16(b). Id. at
1115.
The Solicitor General of the United States also conceded as much in the
course of litigating Johnson, acknowledging that § 16(b) is subject to the same
“ordinary case” analysis as ACCA’s residual clause and that § 16(b) is thus equally
susceptible to a vagueness challenge:
Although Section 16 refers to the risk that force will be used rather than that injury will occur, it is equally susceptible to petitioner’s central objection to the residual clause: Like the ACCA, Section 16 requires a court to identify the ordinary case of the commission of the offense and to make a commonsense judgment about the risk of confrontations and other violent encounters. Supplemental Brief for the United States at 22–23, Johnson v. United States, 135 S. Ct. 2551 (2015) (No. 13-7120) (emphasis in original).
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 21
25
In short, inherent in § 16(b) is the first key indeterminacy that the Johnson
Court found in the residual clause because § 16(b)’s operation under the
categorical approach similarly ties judicial assessment of risk not to real-world
facts or statutory elements but to the abstract “nature” or ordinary case of a
particular offense.
Section 16(b) also contains the second of the key indeterminacies that
combined to render ACCA’s residual clause unconstitutionally vague. Similar to
ACCA’s residual clause, the statutory language “by its nature, involves substantial
risk” contained in § 16(b) is also inherently imprecise and leaves great uncertainty
about the quantum of risk necessary for an offense to qualify as a “crime of
violence.” Like the residual clause, § 16(b) simply fails to provide enough
guidance as to when risk is sufficiently substantial to fall under the statute.
In fact, § 16(b) provides even less guidance than ACCA’s residual clause. If
the enumerated offenses preceding ACCA’s residual clause failed to provide
sufficient guidance for courts’ quantum of risk analysis, the complete lack of
enumerated crimes in § 16(b) results in even less guidance, rendering § 16(b) even
more vague. See Dimaya v. Lynch, 803 F.3d 1110, 1118 n.13 (9th Cir. 2015). The
Johnson Court lamented that “[c]ommon sense has not even produced a consistent
conception of the degree of risk posed by each of the [residual clause’s] four
enumerated crimes [and] there is no reason to expect it to fare any better with
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 22
26
respect to thousands of unenumerated crimes.” Johnson, 135 S. Ct. at 2559
(emphasis added). Thus, because § 16(b) forces courts to apply an imprecise
“substantial risk” standard completely in a vacuum, devoid of comparable offenses
to guide the analysis, it can only invite more arbitrary enforcement than ACCA’s
residual clause.
Evidencing the inherent indeterminacy and potential for arbitrary
enforcement associated with § 16(b)’s quantum of risk analysis, courts have
disagreed about whether the commission of a particular crime carries “substantial
risk” of violence within the meaning of § 16(b).12 This is unsurprising, as the
ordinary definition of “substantial” is subjective and wide-ranging, varying from
“real; true; not seeming or imaginary” to “having strong substance; strong; stout.”13
Furthermore, even if there were one set definition of the word “substantial,” there
is no guidance in it as to quantum, i.e. when that which is being measured reaches
the requisite level to fall within the definition.
12 Compare De La Paz Sanchez v. Gonzales, 473 F.3d 133, 135 (5th Cir. 2006) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.1999)) (holding that a Texas conviction for unauthorized use of motor vehicle carries substantial risk of violence and is thus a “crime of violence” under § 16(b)), with United States v. Sanchez-Garcia, 501 F.3d 1208, 1212–1213 (10th Cir. 2007) (expressly declining to follow the Fifth Circuit’s Galvan-Rodriguez and holding that a similar unauthorized use statute did not carry a substantial risk of violence and was therefore not a “crime of violence” under § 16(b)). 13 See substantial, Webster's New Universal Unabridged Dictionary (2d ed. 1983).
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 23
27
Not only does the word “substantial” itself offer no guidance as to how
much risk satisfies the statute, but the statutory language of § 16(b) does not add
any guidance to an already vague term. This Court has cited with approval a Fifth
Circuit decision which stated that “when analyzing the operative phrase
‘substantial risk,’ it is not necessary that ‘[the risk] must occur in every instance;
rather a substantial risk requires a strong probability that the event, in this case the
application of physical force during the commission of the crime, will occur.’”
United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (alteration in
original) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.
1999)). Such probabilistic formulation—defining “substantial risk” as requiring a
“strong probability” that something will occur—is an inherently indeterminate
threshold akin to ACCA residual clause’s “serious potential risk” standard. In
short, as with ACCA, § 16(b) “requires courts to . . . determine by vague and
uncertain standards when a risk is sufficiently substantial,” leaving great
uncertainty as to the quantum of risk it takes for a crime to fall under its ambit.
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015).
The combination of the aforementioned indeterminacies renders § 16(b)
unconstitutionally vague. As the Johnson Court made clear, and the Supreme Court
reiterated in Welch v. United States, 136 S. Ct. 1257 (2016), the “indeterminacy of
the wide ranging inquiry” that results from applying an inherently imprecise
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 24
28
standard under the categorical approach, “requir[ing] courts to assess the
hypothetical risk posed by an abstract generic version” of offenses, violates due
process. 136 S. Ct. 1257, 1262 (2016) (holding that Johnson announced a new
substantive rule that has retroactive effect in cases on collateral review). As such,
by invoking a categorical analysis to ask courts to imagine the abstract “nature” or
ordinary case of a particular offense and then apply an imprecise “substantial risk”
standard to determine when such abstraction reaches the requisite level of risk to
fall under the statute, § 16(b) combines the same key indeterminacies that rendered
ACCA’s residual clause unconstitutional. This Court should therefore declare
§ 16(b) unconstitutional as well.
Petitioner is mindful that the Sixth Circuit has recently held that Johnson
does not compel the holding that 18 U.S.C. § 924(c)(3)(B), a criminal firearm
statute with nearly identical wording to § 16(b), is unconstitutionally vague.14
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), reh’g denied. However,
apart from the fact that Taylor considered a different statute, this Court should
decline to follow Taylor’s reasoning because it is unpersuasive. The Sixth Circuit’s
14 A case pending before this Court presents a void-for-vagueness challenge to 18 U.S.C. § 924(c)(3)(B). Brief for Appellant at 6–7, United States v. Prickett, No. 15-3486 (8th Cir. Dec. 3, 2015). The district court in Prickett held that Johnson was inapplicable to Prickett’s case because a categorical analysis is not required for consistent application of § 924(c)(3)(B) and that the statute is not unconstitutionally vague. United States v. Prickett, 2015 WL 5884904, at *2–3 (W.D. Ark. Oct. 8, 2015), appeal docketed.
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 25
29
holding is based largely on minor distinctions drawn between the text of
§ 924(c)(3)(B) and ACCA’s residual clause that are not material in light of the
more fundamental characteristics these statutory provisions share in common. Both
provisions require a categorical analysis of inherently imprecise text, resulting in
two levels of indeterminacy as to future risk and making the analysis of that risk
more hypothetical and unpredictable than the Constitution allows.
In sum, and not withstanding Taylor’s reasoning to the contrary, this Court
should declare § 16(b) unconstitutional because it combines the same two key
indeterminacies as the residual clause, thereby “den[ying] fair notice to defendants
and invit[ing] arbitrary enforcement” in violation of the Fifth Amendment’s
guarantee of due process of law. Johnson, 135 S. Ct. at 2557. The IJ and BIA
decisions applying a constitutionally invalid statute to hold Xiong removable as an
aggravated felon and preclude his application for cancellation were unlawful,
violate his statutory right to apply for cancellation relief, 8 U.S.C. §1229b(a), and
also violated his right to due process of law.15 Remand is required.
15 Xiong notes this Court’s decisions including, Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008), holding that a due process claim cannot be based on failure to receive discretionary relief. Xiong respectfully believes Guled is distinguishable from his case, where a facially unconstitutional statute has been applied to find him removable and ineligible for relief, that Guled is incorrect, and that he is entitled to due process, including determination of his removal case and eligibility to seek relief under constitutional statutes. E.g., Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) (“The availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right.”).
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 26
30
III. Alternatively, Even if 18 U.S.C. § 16(b) Is Constitutional, a
Conviction Under Minn. Stat. § 609.582, Subd. 2(a)(1) Is
Categorically Not a “Crime of Violence” Under § 16(b)
Even if this Court were to conclude that 18 U.S.C. § 16(b) is not void for
vagueness, Xiong’s conviction for second degree burglary is categorically not a
“crime of violence.” In light of Johnson, which abandoned the “ordinary case”
method for analyzing inherently probabilistic statutes, the BIA should instead have
asked whether the minimum conduct required for a conviction of second degree
burglary falls within the scope of the generic federal definition of a “crime of
violence” at § 16(b). Applying the correct “minimum conduct” approach, second
degree burglary in Minnesota is categorically not a “crime of violence,” so the
Court should reverse and remand.
A. “Minimum Conduct” Is the Proper Categorical Analysis Under § 16(b) After the Supreme Court Abrogated the “Ordinary Case” Approach in Johnson
In determining whether a given conviction qualifies as a “crime of violence”
under 18 U.S.C. § 16(b), rather than looking at any facts underlying the conviction,
courts must instead apply the categorical approach and look to the elements of the
offense under which the defendant was prosecuted. Leocal v. Ashcroft, 543 U.S. 1,
7 (2004). In James v. United States, the Supreme Court introduced the “ordinary
case” analysis as the appropriate method for applying the categorical approach to
the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). 550 U.S. 192, 207–08 (2007).
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 27
31
The BIA thereafter imported James’s “ordinary case” analysis to its own
application of § 16(b), see, e.g., Matter of Francisco-Alonzo, 26 I. & N. Dec. 594,
596 (B.I.A. 2015), as have circuit courts. See supra note 11. The Supreme Court
found the results produced by the “ordinary case” inquiry to be inherently
speculative and inconsistent, and abrogated James’s “ordinary case” approach in
Johnson v. United States, 135 S. Ct. 2551, 2557–58 (2015). See Section II, supra.
Because the Supreme Court overruled James and its ordinary case analysis in
Johnson, the BIA should no longer apply “ordinary case” to § 16(b).
Instead, the BIA should have applied the method of categorical analysis the
Supreme Court still employs, the “minimum conduct” approach exemplified in
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). Under this correct
approach, the BIA should have presumed that Xiong’s “conviction ‘rested upon
[nothing] more than the least of th[e] acts’ criminalized, and then determine[d]
whether even those acts are encompassed by the generic federal offense.” Id.
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). For a statute of
conviction to not be considered a “crime of violence” under the “minimum
conduct” approach, there must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime.” Id. at 1685 (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)). To the extent the BIA ruled a question of burden of
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 28
32
proof altered the legal analysis in the context of this case that was legal error.
Moncrieffe, 133 S. Ct. at 1687 (“Escaping aggravated felony treatment does not
mean escaping deportation…only…mandatory removal. [H]aving been found not
to be an aggravated felon, the noncitizen may seek relief . . .”)
B. Under the Correct “Minimum Conduct” Test, Second-Degree Burglary Does Not Pose a “Substantial Risk” of Force
Under the “minimum conduct” approach, the second degree burglary statute
cannot be classified as a “crime of violence” under § 16(b) because the minimum
conduct that Minnesota prosecutes does not carry with it a substantial risk that
physical force will be used. See Moncrieffe, 133 S. Ct. at 1684–85.
Minnesota’s second-degree burglary statute punishes a person who “enters a
building without consent and with intent to commit a crime, or enters a building
without consent and commits a crime while in the building, either directly or as an
accomplice . . . .” Minn. Stat. § 609.582, Subd. 2(a). This statute is divisible
because it sets out multiple alternative elements by which a defendant can
accomplish the crime; the statute requires that the burglar enter a dwelling without
consent and “with intent to commit a crime” or “commits a crime while in the
building.” Minn. Stat. § 609.582, Subd. 2(a); see also Minnesota Jury Instruction
Guides, Criminal (CRIMJIG), 17.06 (2006). The “with intent to commit a crime”
prong corresponds closely to the generic definition of burglary adopted in Taylor
James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9
page 29
No. 16-1428
________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
________________________________________________
KONG MENG XIONG,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
_________________________________________
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
A028-077-173
___________________________________________
BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION PROJECT
25 of 27James H. Binger Center for New Americans - 2017 CLE
Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9page 54
United States Court of Appeals For The Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Michael E. Gans Clerk of Court
VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov June 02, 2016 Mr. Sejal Zota NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD Suite 602 14 Beacon Street Boston, MA 02108 RE: 16-1428 Kong Meng Xiong v. Loretta E. Lynch Dear Counsel: The amici curiae brief of National Immigration Project of the National Lawyers Guild, et al. was filed today. Please complete and file an Appearance form. You can access the Appearance Form at www.ca8.uscourts.gov/all-forms. Please note that Federal Rule of Appellate Procedure 29(g) provides that amci may only present oral argument by leave of court. If you wish to present oral argument, you need to submit a motion. Please note that if permission to present oral argument is granted, the court's usual practice is that the time granted to the amicus will be deducted from the time allotted to the party the amicus supports. You may wish to discuss this with the other attorneys before you submit your motion. Michael E. Gans Clerk of Court LMT Enclosure(s) cc: Nadia Anguiano-Wehde Mr. Scott Baniecke Mr. Jesse Matthew Bless Mr. John Bruning Mr. Benjamin Richard Casper Ms. Julia Lee Decker Ms. Karen Yolanda Drummond Mr. Carl H. McIntyre Charles Barrera Moore Mr. Anthony Cardozo Payne Ms. Kathleen Kelly Volkert