Sunday, October 25, 2015

Case o' The Week: Welcome Clarity on Vagueness - Dimaya and Extension of Johnson to the Immigration (Civil) Context

Our Johnson Messiah: Due Process Dimaya.
  Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015), decision available here.

Players:  Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan. Big win for Prof. Andrew Knapp, Southwestern Law School, with amicus help from Sejal Zota of Nat’ Immigration Project of Nat’ Lawyers Guild, for amici Immigrant Legal Resource Center, Immigrant Defense Project.

Facts: Dimaya was admitted to the US as an LPR. Id. He was twice convicted
Hon. Judge Stephen Reinhardt
of Cal. Penal Code Sec. 459, first degree burglary. Id. 

Under the Immigration and Nationality Act (“INA”), a conviction for an “agg felony” makes a petitioner like Dimaya subject to removal. Id. An Immigration Judge (“IJ”) held that Cal burgs are “crimes of violence,” and thus agg felonies, under the INA’s cross-reference to 18 USC § 16(b). Id. The IJ found Dimaya removable and ineligible for relief. Id. 

That decision was upheld by the Board of Immigration Appeals.

Issue(s): “Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a ‘crime of violence’ as defined by 8 U.S.C. § 1101(a) (43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson . . . 135 S.Ct. 2551 . . . (2015), which held that the Armed Career Criminal Act's (‘ACCA’) so-called residual clause’ definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA’s residual clause that is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence is also void for vagueness.” Id. at *1.”

Held: “We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.” Id.

Of Note: The most obvious impact of Dimaya is immigration – but this quickly bleeds into “crimigation.” 

Head’s up: crimigation is our job. 

After Padilla, criminal defense counsel have an affirmative obligation to accurately advise their clients on immigration consequences. See generally Rodriguez-Vega blog entry hereAfter Johnson and Dimaya, are you sure that case is still an agg felony, as you advise your criminal client? 

Read Dimaya, read Rodriguez-Vega, get spooked, then hit the Nat’l Immigrant Justice Center. See CJA Immigration Help Link here.  (Or try to hire immigration counsel– hiring an immigration attorney now on the CJA dime is much cheaper than paying for CJA habeas counsel later).  

How to Use: Dimaya will be the Ninth’s most important decision of the year. 

Here’s the rationale for that bold claim. If Johnson’s Due Process “vagueness” holding applies in a mere civil context (like the INA), id. at *2, the Supreme’s decision surely must apply to all criminal (albeit non-statutory) provisions. Johnson is our new hammer, and with Dimaya the whole world looks like a nail. USSG § 4B1.2(b) (CareerOffender); § 2K2.1 (felon in possession); § 2L1.2 (illegal reentry); USSG §7B1.1(1)(1) (Supervised Release Violations)– all have vulnerable “crime of violence” definitions, and all are now up for grabs.

Throw in due process challenges to statutes like 18 USC § 3142(f)(1)(A) (Bail Reform Act), the Hobbes Act, Section 924(c) offenses, and ACCA, and much welcome mischief awaits.

And don’t forget the thoughtful Dimaya analysis by Judge Reinhardt, specifically equating the ACCA “crime of violence” provision with the Section 16(b) “crime of violence” definition for the due process analysis, id. at *3 - *6 (analysis that cries out for logical extension to other “crime of violence” definitions).

Dimaya is the foundation upon which much good law will soon be built: a Very Big Case.
Prof. Andrew Knapp, Southwestern School of Law
For Further Reading: Dimaya was held in immigration detention, without bond, for five years. It was only after the Ninth appointed Prof. Knapp as pro bono counsel, and a “dedicated group of idealistic Southwestern law students took over [Dimaya’s] representation, was [Dimaya] finally able to obtain his release on bond.” 

For an article describing the moving human story behind this case, see here.  

Image of the Honorable Judge Stephen Reinhardt from

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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