Golicov v. Lynch
2016 U.S. App. LEXIS 17121
| 10th Cir. | 2016Background
- Golicov, a lawful permanent resident admitted in 2001, was convicted in Utah (2010) of felony failure to stop for a police officer (Utah Code § 41-6a-210(1)(a)(i)) and sentenced to five years.
- DHS served a Notice to Appear in 2012 charging removability under 8 U.S.C. § 1227(a)(2)(A)(iii) because the conviction allegedly was an "aggravated felony."
- The INA defines "aggravated felony" to include a "crime of violence" as defined in 18 U.S.C. § 16; § 16(b) covers any felony that "by its nature, involves a substantial risk that physical force ... may be used."
- The IJ initially dismissed the charge; the BIA reversed, finding the Utah conviction a categorical crime of violence under § 16(b) and remanded for consideration of relief.
- After Johnson v. United States (invalidating the ACCA residual clause as unconstitutionally vague), Golicov argued § 16(b) (and hence the INA definition) is likewise void for vagueness; the BIA and IJ rejected the argument, and Golicov petitioned for review.
- The Tenth Circuit agreed with several sister circuits that § 16(b) (and the INA provision incorporating it) is unconstitutionally vague under Johnson, vacated the removal order, and remanded to the BIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vagueness doctrine (as in Johnson) applies to INA removal provisions | Golicov: Fifth Amendment vagueness challenge applies to removal because deportation implicates liberty and due process | DHS: Vagueness standard for criminal statutes shouldn’t apply to civil removal statutes | Held: Vagueness doctrine applies to deportation; courts have long afforded due process protection to aliens in removal proceedings |
| Whether 18 U.S.C. § 16(b) is unconstitutionally vague under Johnson | Golicov: § 16(b) mirrors ACCA residual-clause problems (ordinary-case abstraction + indeterminate risk standard) and is therefore void | DHS: § 16(b) differs textually (focus on physical force, "in the course of committing," no enumerated list) and is not void | Held: § 16(b) is not meaningfully distinguishable from the ACCA residual clause and is unconstitutionally vague under Johnson |
| Whether the INA’s incorporation of § 16(b) (8 U.S.C. § 1101(a)(43)(F)) is therefore invalid for removability determinations | Golicov: INA definition that incorporates § 16(b) is void for vagueness, so conviction cannot be the basis for removal as an aggravated felony | DHS: Incorporation remains valid because § 16(b) is not vague | Held: Because § 16(b) is void, the INA provision that depends on it is also unconstitutionally vague as applied here |
| Remedy and disposition | Golicov: Vacatur of removal and remand for further proceedings | DHS: Affirm removal | Held: Petition granted; order of removal vacated; case remanded to BIA for further proceedings consistent with opinion |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause under void-for-vagueness doctrine)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (describing categorical approach and focusing on the "offense" of conviction)
- Jordan v. De George, 341 U.S. 223 (1951) (applying vagueness doctrine in deportation context)
- Begay v. United States, 553 U.S. 137 (2008) (discussing enumerated offenses in ACCA analysis)
- Reno v. Flores, 507 U.S. 292 (1993) (aliens entitled to Fifth Amendment due process in deportation proceedings)
- Welch v. United States, 136 S. Ct. 1257 (2016) (describing Johnson's reasoning about the categorical approach and residual clause)
- Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (holding § 16(b) void for vagueness post-Johnson)
- Vivas-Ceja v. United States, 808 F.3d 719 (7th Cir. 2015) (concluding § 16(b) materially indistinguishable from ACCA residual clause)
- United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (distinguishing § 924(c)(3)(B) challenges where crime's risk-creation is an element)