James Dimaya v. Loretta E. Lynch
2015 U.S. App. LEXIS 18045
| 9th Cir. | 2015Background
- James Garcia Dimaya, a lawful permanent resident, had two convictions for first‑degree residential burglary under Cal. Penal Code § 459 (2007, 2009), each with >1 year sentence.
- DHS charged removal as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) because burglary is a “crime of violence” by incorporation of 18 U.S.C. § 16(b).
- The Immigration Judge and the BIA held Dimaya’s burglary convictions were crimes of violence under § 16(b) and ordered removal.
- After briefing, the Supreme Court decided Johnson v. United States (2015), invalidating ACCA’s residual clause as unconstitutionally vague; the Ninth Circuit solicited supplemental briefing on whether Johnson applies to § 16(b) as incorporated in the INA.
- The central constitutional question: whether § 16(b)’s “substantial risk” / “ordinary case” inquiry is unconstitutionally vague under the Due Process Clause when applied categorically in immigration removal contexts that carry severe consequences.
- The Ninth Circuit majority concluded § 16(b) suffers the same indeterminacy as ACCA’s residual clause and granted Dimaya’s petition for review, remanding to the BIA; Judge Callahan dissented.
Issues
| Issue | Plaintiff's Argument (Dimaya) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether 18 U.S.C. § 16(b) (as incorporated by INA) is unconstitutionally vague under the Due Process Clause after Johnson | § 16(b) mirrors ACCA’s residual clause (uses "ordinary case" + qualitative risk), so Johnson renders it void for vagueness | Johnson addressed only ACCA’s residual clause; § 16(b) differs textually and by interpretation (Leocal, burglary as classic example), so it is not vague | § 16(b) is void for vagueness as applied in the INA; petition granted and remanded |
| Whether vagueness doctrine applies in removal/cancellation contexts | Vagueness doctrine applies to deportation statutes because deportation is a severe civil consequence; noncitizens need fair notice | Government contends some immigration precedent limits vagueness challenges; but prior Supreme Court cases do not foreclose them | Vagueness challenges to deportation statutes are cognizable; Due Process applies here |
| Whether the categorical approach saves § 16(b) from vagueness (i.e., can courts use elements-only analysis to avoid vagueness) | The categorical approach forces courts to imagine an "ordinary case," which is the same problematic mechanism Johnson invalidated | § 16(b) historically and per Leocal is applied to offense "by its nature" (real‑world risk), and courts consistently identify burglary as within § 16(b) | Categorical/"ordinary case" inquiry combined with an indeterminate "substantial risk" standard makes § 16(b) unconstitutionally vague |
| Whether California first‑degree burglary convictions remain crimes of violence for INA purposes | Even if burglary often involves potential force, that fact cannot save § 16(b) when the defining clause is vague | Prior precedents (Leocal, Becker, Ninth Circuit cases) treat burglary as classic § 16(b) example and support removal | The court did not decide which offenses fall within § 16(b); it held the statute’s § 16(b) language unconstitutional as applied in the INA, nullifying prior § 16(b)-based holdings to that extent |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause held unconstitutionally vague for tying a risk inquiry to an imagined "ordinary case")
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (§ 16(b) covers offenses that by their nature involve a substantial risk of force; identified burglary as the classic example)
- James v. United States, 550 U.S. 192 (2007) (discussed in Johnson regarding ordinary‑case analysis)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach and limits on examining conduct underlying convictions)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (application of the categorical approach in immigration context)
- Taylor v. United States, 495 U.S. 575 (1990) (generic‑offense framework for burglary and categorical approach)
- United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (Ninth Circuit precedent treating California first‑degree burglary as a § 16(b) crime of violence)