Argued and Submitted, Pasadena, California, September 1, 2015.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A043-888-256.
The panel granted James Garcia Dimaya's petition for review of the Board of Immigration Appeals' decision holding that his conviction for burglary under California Penal Code § 459 is a categorical " crime of violence" as defined by 8 U.S.C. § 1101(a)(43)(F).
Reaffirming that a noncitizen may bring a void for vagueness challenge to the definition of a crime of violence in the Immigration and Nationality Act, the panel held that the language in 18 U.S.C. § 16(b), which is incorporated into § 1101(a)(43)(F)'s definition of a crime of violence, is unconstitutionally vague. The panel held that § 16(b)'s language suffers from the same indeterminacy the Supreme Court found in the Armed Career Criminal Act's " residual clause" definition of a violent felony in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).
Dissenting, Judge Callahan would find that 18 U.S.C. § 16(b) is not unconstitutionally vague pursuant to Johnson.
Andrew M. Knapp (argued), Southwestern Law School, Los Angeles, California, for Petitioner.
Nancy Canter (argued) and Jennifer Khouri, Trial Attorneys; Stuart F. Delery, Assistant Attorney General; Jennifer P. Levings, Senior Litigation Counsel, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Sejal Zota (argued), National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for Amici Curiae Immigrant Legal Resource Center, Immigrant Defense Project, and National Immigration Project of the National Lawyers Guild.
Before: Stephen Reinhardt, Kim McLane Wardlaw, and Consuelo M. Callahan, Circuit Judges. CALLAHAN, Circuit Judge, dissenting.
REINHARDT, Circuit Judge:
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 v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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. We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.
Petitioner, a native and citizen of the Philippines, was admitted to the United States in 1992 as a lawful permanent resident. In both 2007 and 2009, petitioner was convicted of first-degree residential burglary under California Penal Code section 459 and sentenced each time to two years in prison. If a non-citizen is convicted of an aggravated felony, he is subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). Citing petitioner's two first-degree burglary convictions, the Department of Homeland Security (" DHS" ) charged that petitioner was removable because he had been convicted of a " crime of violence . . . for which the term of imprisonment [was] at least one year" --an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). That statute defines a " crime of violence" by reference to 18 U.S.C. § 16, which provides the following definition:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other 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 Immigration Judge (IJ) agreed with DHS that first-degree burglary in California is a crime of violence. Citing § 16(b) and United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990), the IJ explained that " unlawful entry into a residence is by its very nature an offense where is apt to be violence [sic], whether in the efforts of the felon to escape or in the efforts of the occupant to resist the felon." Because the charging documents for each conviction alleged an unlawful entry, and because the term of imprisonment for each conviction was greater than one year, the IJ determined that these convictions were crimes of violence. On the basis of this conclusion, the IJ held that petitioner was removable and ineligible for any relief. The BIA dismissed petitioner's appeal on the same ground. Citing § 16(b) and Becker, the BIA concluded that " [e]ntering a dwelling with intent to commit a felony is an offense that by its nature carries a substantial risk of the use of force," and therefore affirmed the IJ's holding that petitioner was convicted of a crime of violence.
Petitioner filed a timely petition with this Court for review of the BIA's decision. After the parties argued this case, the United States Supreme Court decided Johnson and, because the definition of a crime of violence that the BIA relied on in this case is similar to the unconstitutional language in ACCA's residual clause, we ordered supplemental briefing and held a supplemental oral argument regarding whether § 16(b), as incorporated into the INA, is also unconstitutionally vague. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law, including whether language in the immigration statutes is void for vagueness. See Alphonsus v. Holder, 705 F.3d 1031, 1036-37 (9th Cir. 2013). That question, as a pure question of law, receives de novo review from this Court. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010).
The Fifth Amendment's Due Process Clause " requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Alphonsus, 705 F.3d at 1042 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Although most often invoked in the context of criminal statutes, the prohibition on vagueness also applies to civil statutes, including those concerning the criteria for deportation. Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (" Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation." ); see also A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239, 45 S.Ct. 295, 69 L.Ed. 589 (1925) (" The defendant attempts to distinguish [prior vagueness] cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions." ).
Previously, we have recognized the vagueness doctrine's applicability in the context of withholding of removal " because of the harsh consequences attached to . . . denial of withholding of removal." Alphonsus, 705 F.3d at 1042 (citing Jordan, 341 U.S. at 230-31). In this case, Petitioner challenges a statute as unconstitutionally vague in the context of denial of cancellation of removal.
For due process purposes, this context is highly analogous to denial of withholding of removal because both pose the harsh consequence of almost certain deportation. Under withholding of removal, a non-citizen who is otherwise removable cannot be deported to his home country if he establishes that his " life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). Under cancellation of removal, immigration authorities may cancel the removal of a lawful permanent resident who satisfies certain criteria based on length of residency, good behavior, and exceptional hardship. Id. § 1229b(b)(1). Non-citizens who commit certain criminal offenses are ineligible for these forms of relief. See id. § § 1231(b)(3)(B)(ii), 1229b(b)(1)(C). As with denial of withholding of removal, then, denial of cancellation of removal renders an alien ineligible for relief, making deportation " a virtual certainty." United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011).
The government argues that our circuit's reliance on Jordan " is misguided as Jordan did not authorize vagueness challenges to deportation statutes." We find this suggestion baffling. Jordan considered whether the term " crime involving moral turpitude" in section 19(a) of the Immigration Act of 1917, a type of offense that allowed for a non-citizen to " be taken into custody and deported," was void for vagueness. 341 U.S. at 225-31 (emphasis added). In considering this challenge, the Court explicitly rejected the argument that the vagueness doctrine did not apply. Id. at 231. The government also argues that subsequent Supreme Court decisions rejected due process challenges to various immigration statutes. See Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955); Galvan v. Press, 347 U.S. 522, 530-31, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ; Harisiades v. Shaughnessy, 342 U.S. 580, 588-91, 72 S.Ct. 512, 96 L.Ed. 586 (1952). None of these cases, however, suggests that the Due Process Clause does not apply to deportation proceedings. Nor could they, for it " is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Demore v. Kim, 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (internal quotation marks omitted).
As the Supreme Court recognized in Jordan, a necessary component of a non- citizen's right to due process of law is the prohibition on vague deportation statutes. Recently, the Supreme Court noted the need for " efficiency, fairness, and predictability in the administration of immigration law." Mellouli v. Lynch, 135 S.Ct. 1980, 1987, 192 L.Ed.2d 60 (2015). Vague immigration statutes significantly undermine these interests by impairing non-citizens' ability to " anticipate the immigration consequences of guilty pleas in criminal court." Id. (internal quotation marks omitted); see also Padilla v. Kentucky, 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (" [A]ccurate legal advice for noncitizens accused of crimes has never been more important" because " deportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." (footnote omitted)). For these reasons, we reaffirm that petitioner may bring a void for vagueness challenge to the definition of a " crime of violence" in the INA.
To understand Johnson' s effect on this case, it is helpful to view § 16(b), as incorporated into the INA, alongside the residual clause at issue in Johnson. The INA provides for the removal of non-citizens who have been " convicted of an aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). Its definition of an aggravated felony includes numerous offenses, including " a crime of violence (as defined in section 16 of Title 18 . . . )." 8 U.S.C. § 1101(a)(43)(F). The subsection of 18 U.S.C. § 16 that the BIA relied on in this case defines a crime of violence as an " 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." 18 U.S.C. § 16(b). Had Congress written out the relevant definition in full instead of relying on cross-referencing, a lawful permanent resident would be removable if " convicted of an 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" (emphasis added). The language in ACCA that Johnson held unconstitutional is similar. The ACCA provision defined a " violent felony" as " any crime punishable by imprisonment for a term exceeding one year [i.e., a felony] . . . that . . . involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Importantly, both the provision at issue here and ACCA's residual clause are subject to the same mode of analysis. Both are subject to the categorical approach, which demands that courts " look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime."  Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Specifically, courts considering both § 16(b) and the residual clause must decide what a " 'usual or ordinary' violation" of the statute entails and then determine how great a risk of injury that " ordinary case" presents. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013) (quoting United States v. Ramos-Medina, 706 F.3d 932, 938 (9th Cir. 2012)).
In Johnson, the Supreme Court recognized two features of ACCA's residual clause that " conspire[d] to make it unconstitutionally vague." 135 S.Ct. at 2557. First, the Court explained, the clause left " grave uncertainty" about " deciding what kind of conduct the 'ordinary case' of a crime involves." Id. That is, the provision " denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges" because it " tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." Id. Second, the Court stated, ACCA's residual clause left " uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 2558. By combining these two indeterminate inquiries, the Court held, " the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. On that ground it held the residual clause void for vagueness. The Court's reasoning applies with equal force to the similar statutory language and identical mode of analysis used to define a crime of violence for purposes of the INA. The result is that because of the same combination of indeterminate inquiries, § 16(b) is subject to identical unpredictability and arbitrariness as ...