Sessions, Attorney General v. Dimaya

Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 15-1498. Argued January 17, 2017--Reargued October 2, 2017—Decided April 17, 2018

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. 1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [ 18 U. S. C. 16] . . . ) for which the term of imprisonment [is] at least one year.” 1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, 16(a), and the residual clause, 16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “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.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7 , nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a “crime of violence” under 16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. 924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that 16(b), as incorporated into the INA, was also unconstitutionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.

Justice Kagan delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, concluding that 16’s residual clause is unconstitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residual clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in 16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and 16(b) that it claims make 16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that 16(b)’s express requirement (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”—in other words, a court applying 16(b) may not “consider risks arising after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in 16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the 16(b) inquiry, which focuses on the risk of “physical force,” “trains solely” on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast,ACCA’s residual clause asked about the risk of “physical injury,”requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140 . So under 16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court’s analysis of whether a crime qualifies as violent.

Third, the Government notes that 16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16–21.

(2) The Government also relies on judicial experience with 16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting 16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two 16(b) cases, this Court vacated the judgments in a number of other 16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed because the removal of an alien is a civil matter rather than a criminal case. This Court’s precedent forecloses that argument. In Jordan v. De George, 341 U. S. 223, the Court considered what vagueness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deportation is “a particularly severe penalty,” which may be of greater concern to a convicted alien than “any potential jail sentence.” Jae Lee v. United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact-based approach is an untenable interpretation of 16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, 16(b)’s text demands a categorical approach. This Court’s decisions have consistently understood language in the residual clauses of both ACCA and 16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.” Taylor v. United States, 495 U. S. 575, 601 . And the words “by its nature” in 16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinarily entails. Finally, given the daunting difficulties of accurately “reconstruct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”—and associated inequities—is as great in 16(b) as in ACCA. Johnson, 576 U. S., at ___. Pp. 12–15.

Justice Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute’s operation is unavailing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

Kagan, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which Ginsburg, Breyer, Sotomayor, and Gorsuch, JJ., joined, and an opinion with respect to Parts II and IV–A, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy and Alito, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Wilson v. Sellers, Warden

Certiorari To The United States Court Of Appeals For The Eleventh Circuit

No. 16-6855. Argued October 30, 2017--Decided April 17, 2018

Petitioner Marion Wilson was convicted of murder and sentenced to death. He sought habeas relief in Georgia Superior Court, claiming that his counsel’s ineffectiveness during sentencing violated the Sixth Amendment. The court denied the petition, in relevant part, because it concluded that counsel’s performance was not deficient and had not prejudiced Wilson. The Georgia Supreme Court summarily denied his application for a certificate of probable cause to appeal. Wilson subsequently filed a federal habeas petition, raising the same ineffective-assistance claim. The District Court assumed that his counsel was deficient but deferred to the state habeas court’s conclusion that any deficiencies did not prejudice Wilson. The Eleventh Circuit affirmed. First, however, the panel concluded that the District Court was wrong to “look though” the State Supreme Court’s unexplained decision and assume that it rested on the grounds given in the state habeas court’s opinion, rather than ask what arguments “could have supported” the State Supreme Court’s summary decision. The en banc court agreed with the panel’s methodology.

Held: A federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. The State may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below. Pp. 5–11.

(a) In Ylst v. Nunnemaker, 501 U. S. 797, the Court held that where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. In Ylst, where the last reasoned opinion on the claim explicitly imposed a procedural default, the Court presumed that a later decision rejecting the claim did not silently disregard that bar and consider the merits.

Since Ylst, every Circuit to have considered the matter, but for the Eleventh Circuit, has applied a “look through” presumption even where the state courts did not apply a procedural bar to review, and most Circuits applied the presumption prior to Ylst. The presumption is often realistic, for state higher courts often issue summary decisions when they have examined the lower court’s reasoning and found nothing significant with which they disagree. The presumption also is often more efficiently applied than a contrary approach that would require a federal court to imagine what might have been the state court’s supportive reasoning.

The State argues that Harrington v. Richter, 562 U. S. 86, controls here and that Ylst should apply, at most, where the federal habeas court is trying to determine whether a state-court decision without opinion rested on a state procedural ground or whether the state court reached the merits of a federal issue. Richter, however, did not directly concern the issue in this case—whether to “look through” the silent state higher court opinion to the lower court’s reasoned opinion in order to determine the reasons for the higher court’s decision. In Richter, there was no lower court opinion to look to. And Richter does not say that Ylst’s reasoning does not apply in the context of an unexplained decision on the merits. Indeed, this Court has “looked though” to lower court decisions in cases involving the merits. See, e.g., Premo v. Moore, 562 U. S. 115, 123 –133. Pp. 5–9.

(b) The State’s further arguments are unconvincing. It points out that the “look though” presumption may not accurately identify the grounds for a higher court’s decision. But the “look through” presumption is not an absolute rule. Additional evidence that might not be sufficient to rebut the presumption in a case like Ylst, where the lower court rested on a state-law procedural ground, would allow a federal court to conclude that counsel has rebutted the presumption in a case decided on the merits. For instance, a federal court may conclude that the presumption is rebutted where counsel identifies convincing alternative arguments for affirmance that were made to the State’s highest court, or equivalent evidence such as an alternative ground that is obvious in the state-court record. The State also argues that this Court does not necessarily presume that a federal court of appeals’ silent opinion adopts the reasoning of the court below, but that is a different context. Were there to be a “look through” approach as a general matter in that context, judges and lawyers might read those decisions as creating, through silence, binding circuit precedent. Here, a federal court “looks through” the silent decision for a specific and narrow purpose, to identify the grounds for the higher court’s decision as the Antiterrorism and Effective Death Penalty Act requires. Nor does the “look through” approach show disrespect for the States; rather, it seeks to replicate the grounds for the higher state court’s decision. Finally, the “look though” approach is unlikely to lead state courts to write full opinions where they would have preferred to decide summarily, at least not to any significant degree. Pp. 9–11.

834 F. 3d 1227, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.