When an immigrant is convicted of a crime of violence, they are subject to mandatory removal from the U.S. They are also ineligible for many kinds of relief from removal. If this has happened to you, however, there may still be hope.

Last year, the U.S. Supreme Court ruled that the definition of “crime of violence” in relation to immigration law is too vague to be constitutional.

The definition in question reads, “any … 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.”

The case heard by the Supreme Court, Sessions v. Dimaya, involved a Filipino man who was convicted twice of committing residential burglary. No actual violence was committed in either burglary.

Nevertheless, the immigration court ruled that the man had been convicted of a crime of violence and ordered him deported and removed from the U.S. The Board of Immigration Appeals agreed.

When he appealed to the federal courts, however, the Ninth Circuit Court of Appeals overturned the removal order, arguing that the definition of “crime of violence” was so vague as to violate the due process clause.

The Ninth Circuit’s opinion relied for precedent on a 2015 Supreme Court opinion called Johnson v. United States. In that case, the Supreme Court had ruled a similarly-worded definition in another federal statute to be unconstitutionally vague.

Unless the Supreme Court could point to how the immigration case was different from Johnson v. United States, the definition of “crime of violence” would be held unconstitutionally vague, as well.

How should ‘involves a substantial risk’ be interpreted?

This was an interesting case because courts had been looking at the phrase “by its nature involves a substantial risk that physical force … may be used” in a somewhat peculiar way. They could, for example, consider each individual case to determine if there was substantial risk of physical force in that case.

Instead, the courts use a categorical approach. That means the courts instead consider “the ordinary case,” or a sort of middle-of-the-road imaginary case. They weigh the realities of the overall nature of the offense and ask whether “the ordinary case” poses a substantial risk of physical force.

That categorical approach allows differences of opinion based on each court’s internal definition of “the ordinary case.” It is therefore too vague to be useful and promotes arbitrariness and unpredictability in outcomes.

As Justice Neil Gorsuch noted in his concurring opinion, “vague laws invite arbitrary power.”

Your conviction may not have to lead to removal

If you have been convicted of a crime of violence, you may fear there is no hope for preventing deportation and removal. You should not give up before exploring all of your options. Contact Yew Immigration Law Group for a legal evaluation.