The Supreme Court on Monday will hear arguments — again — on a case involving a legal immigrant whose burglary conviction triggered a deportation order.
The justices heard arguments on the case in January but split 4-4 and set it for re-argument after the appointment of a justice to fill the vacancy caused by Justice Antonin Scalia’s death. His replacement, Justice Neil Gorsuch, figures to be the deciding vote.
Under federal law, even a lawful permanent resident can be deported if he or she commits certain crimes. At issue in this case is whether burglary is serious enough to qualify.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that the definition of an “aggravated felony” was unconstitutionally vague. Attorneys for the immigrant, James Garcia Dimaya, argue that it is too difficult to determine whether burglary is a “crime of violence.” They maintain that the issue is the same as a 2015 case in which the Supreme Court struck down a provision of the Armed Career Criminal Act that used the same definition.
Dimaya, who came lawfully to the United States when he was 13 in 1992, got his GED certificate, attended community college, and worked as a cashier and store manager. He pleaded no contest to residential burglary in 2007 and 2009 in California. His attorneys argue that it is wrong to conclude that an “ordinary case” of California’s “extraordinarily broad” burglary offense involves a high enough risk of physical force.
“That analysis is far too arbitrary to permit the Government to exile him forever from the only country he has known since he was 13,” they wrote in their legal brief.
The statute defines an aggravated crime as “any offense that is a felony, that by its nature, involves a substantial risk that physical force against the person or property, may be used in the commission of the crime.”
Legal experts said the Supreme Court could make the country more dangerous.
“This could have a significant effect on a large number of cases involving aggravated felonies that do not have force as an element but that have a significant risk for force,” said Arthur “Art” Arthur, a resident fellow in law and policy at the Center for Immigration Studies. “A lot of dangerous aliens would not be removable if the Supreme Court were to adopt the 9th Circuit’s logic.”
It is difficult to say how many deportations such a ruling might affect. The Department of Homeland Security does not regularly publish statistics breaking down deportations by legal status. But using information gathered in a Freedom of Information Act request, Human Rights Watch reported in 2009 that 10 percent of those deported between 1997 and 2007 had green cards. Another 10 percent were legally present but did not have permanent residency.
Only 7.6 percent of those cases, according to the report, were based on violent crimes against people.
Dimaya’s lawyers argue that ruling in his favor would have a “minimal impact” on immigration enforcement because the issue in dispute would affect only a small number of the 80 crimes defined as an “aggravated felony.”
The government has taken the position that case is different from the one involving the Armed Career Criminal Act. The government notes that deportation proceedings are civil, and carry a lower standard than criminal cases, which can result in imprisonment.
“Because of that, burglary the way we classically think of it … is a crime of violence.”
Arthur, who served from 1999 to 2001 as assistant general counsel and acting chief of the Immigration and Naturalization Service’s National Security Law Division, said burglary inherently carries a high risk that force will be used because of the likelihood of encountering a home’s occupant during the crime.
“Because of that, burglary the way we classically think of it … is a crime of violence,” he said.
Christopher Hajec, director of litigation at the Immigration Reform Law Institute, agreed.
“There is a large potential to meeting someone who might try to stop you or you might feel the need to subdue,” he said.
Dimaya has attracted support from a group of retired judges, the National Immigration Project of the National Lawyer Guild, the National Immigration Law Center, and the National Association of Federal Defenders. All filed friend-of-the-court briefs in support of his position.
Hajec said that highlights a concerted effort by “open borders” advocates to chip away at immigration law rather than simply defend an individual immigrant fighting deportation.
“This is yet another example of how they just seem to be trying to achieve strange objectives,” he said. “This is not in the national interest at all.”