The Supreme Court on Tuesday ruled in a case from California that if a law is deemed to be so vague that it is impossible for the government to use it to impose a prison sentence, then it is also too vague to be used to deport a lawful permanent resident. It was another welcome recognition by the court that being expelled from this country can be as devastating a consequence as confinement to a prison cell.
By a 5-4 vote, with President Trump's appointee, Neil M. Gorsuch, joining the court's four liberals to form a majority, the court ruled in favor of James Garcia Dimaya, a native of the Philippines who was admitted to the U.S. as a lawful permanent resident at the age of 13. Dimaya pleaded no contest in 2007 and 2009 to two charges of residential burglary.
Concluding that burglary was a crime of violence and thus an "aggravated felony" under federal immigration law, the Board of Immigration Appeals ruled that Dimaya should be deported. The Immigration and Nationality Act's definition of "crimes of violence," borrowed from federal criminal law, includes felonies that involve "a substantial risk that physical force against the person or property of another may be used during committing the offense" — a definition that might apply to some burglaries but not others.
Justice Elena Kagan, writing for the court, said that definition was simply too unclear to serve as the basis of a deportation. She said it suffered from the same sort of unconstitutional vagueness as a law the court struck down in 2015 in a criminal context. Referring back to the late Justice Antonin Scalia's decision in that prior case, Kagan wrote: "How does one go about divining the conduct entailed in a crime's ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct?"
Kagan noted that the court long had recognized that "grave nature of deportation" and only last year had said that deportation was "a particularly severe penalty" that may be of greater concern to a convicted alien than "any potential jail sentence."
If vagueness in a statute provides grounds to challenge a criminal conviction or a sentence, it ought to be available to immigrants seeking to remain in this country even if they have been convicted of a crime. At a time when the executive branch is giving short shrift to due process for immigrants, it's gratifying that the court is willing to protect their rights.