Gorsuch Delivers Surprise Blow to Trump on Immigration

Justice picked by the president joins Supreme Court's liberal wing for first time, provides deciding vote on throwing out deportation case

Supreme Court Justice Neil Gorsuch — President Donald Trump’s first appointee to the nation’s highest court — provided the decisive fifth vote in a defeat for the chief executive on an immigration case that critics say could jeopardize public safety.

Tuesday’s 5-4 ruling sparing an immigrant from deportation who was convicted in California of burglary came in a case that had been held over for the current term from last year, pending Senate confirmation of a presidential appointment to fill the then-vacant ninth seat on the panel.

The case concerned James Garcia Dimaya, who came to America in 1992 when he was 13 and pleaded no contest to residential burglary charges in 2007 and 2009. Those convictions on aggravated felonies triggered deportation proceedings.

But Dimaya challenged the statute, arguing that it was too vague because it did not specifically define a crime of violence. Writing for the majority, Justice Elena Kagan declared that California’s burglary statute under which Dimaya was convicted covers such a broad range of conduct that it is impossible to determine whether it constitutes a crime of violence.

She cited a 2015 ruling, written by Justice Antonin Scalia, striking down a provision of the Armed Career Criminal Act on the same grounds.

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Trump’s administration argued that the ruling in that case was different because it involved criminal penalties, while the immigration case merely was about deportation. But Kagan cited a 1951 case involving a definition of “crime involving moral turpitude” in a deportation case.

“Nothing in the ensuing years calls that reasoning into question,” she wrote. “To the contrary, 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.'”

Gorsuch, who wrote separately, argued that “vague laws invite arbitrary power.” He cited the British crown’s capricious application of treason to sweep up people in colonial America who spoke disfavored opinions.

Modern laws do not carry consequences as serious as those under pre-Revolution British rule, the justice wrote, but power can be exercised no less arbitrarily.

“This was a particular ground for removal that I saw a lot in my court. I didn’t think it was vague … It was a workable statute.”

Gorsuch (pictured above) noted that the law requires an immigration judge to determine whether an “ordinary case” triggering deportation involves a substantial risk of violence.

“How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force?” he wrote.

Andrew “Art” Arthur, a former immigration judge who now serves as a senior fellow in law and policy at the Center for Immigration Studies (CIS), said he believes the decision misreads a statute allowing for the deportation of legal immigrants who have committed crimes of violence.

“It’s going to have serious implications for the removal of a number of people who are dangerous,” Arthur told LifeZette.

Dale Wilcox, executive director of the Immigration Reform Law Institute (IRLI) noted that even Barack Obama’s administration wanted to deport the immigrant at the center of the case.

“Lost in the debate over the meaning of ‘crime of violence’ is the fact that the alien was convicted twice of first-degree burglary under California state law and is now allowed to remain in the United States,” he said in a statement.

Arthur said that when he was an immigration judge, he presided over many deportation cases like Dimaya’s.

“This was a particular ground for removal that I saw a lot in my court,” he said. “I didn’t think it was vague … It was a workable statute.”

It is unclear how many deportation cases Tuesday’s ruling might affect. A representative of the Department of Homeland Security (DHS) told LifeZette that the agency does not have an estimate.

Tyler Houlton, press secretary for DHS, released a statement criticizing the decision and urging Congress to close loopholes in the statute.

“Today’s ruling significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes, including sexual assault, kidnapping, and burglary, from the United States,” he stated. “By preventing the federal government from removing known criminal aliens, it allows our nation to be a safe haven for criminals and makes us more vulnerable as a result.”

A Human Rights Watch report in 2009 determined that 20 percent of people deported from 1997 to 2007 were in the United States legally. Some 7.6 percent of those cases were based on violent crimes.

Related: Supreme Court Weighs if Burglary Should Trigger Deportation

The ruling does not affect deportations of illegal immigrants or of legal immigrants whose convictions were for unambiguously violent crimes, like murder and rape. And Gorsuch noted that Congress has a ready legislative remedy. It can amend the statute to clearly define what crimes make legal permanent residents subject to deportation.

While the mechanics are simple, however, the politics are not.

“Congress has trouble getting anything done on immigration right now,” said Jessica Vaughan, director of policy studies at CIS.

Tuesday’s ruling represents a rare break by Gorsuch from the conservative bloc on the court. Arthur said it ought to reassure liberal critics who argued that the justice would be a Trump clone.

“If anything, it should burnish his credentials as an independent thinker on the court,” he said.

PoliZette senior writer Brendan Kirby can be reached at brenda[email protected]. Follow him on Twitter.

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