A person who is not a citizen of the United States—even one who is legally residing in this country—can be permanently deported if he or she has committed certain crimes. I discussed thisin greater detail last year. Immigration law is administered by the federal government but most often, a person is deported because he or she was convicted of a criminal act under state statute. While some of the federally enumerated deportable offenses are unambiguous and are consistent across states, such as assaultor kidnapping, other crimes may be punished differently in different states.  Among the crimes for which a person may be deported under federal law are “aggravated felonies.” An “aggravated felony” is a “crime of violence” for which the punishment is one year or more.

But what is a “crime of violence?” Under federal statute a felony 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).) So, would it be a crime of violence if a person was arrested for threatening to harm another? Or would a conviction of first-degree burglaryin California be a crime of violence even though no violence was committed during the burglary? (In California, a first-degree burglary is the unlawful entry into an occupied residence with the intent to commit a felony or theft.)

It is true that the majority of individuals deported under U.S. immigration law are deported after being convicted of a crime specifically enumerated in the federal code, such as rape, murder, assault, and so on. But some convictions do not fall under any specifically enumerated crime of violence. It is those types of crimes under which 18 U.S.C. §16(b) is applied in deportation proceedings.

A lawful permanent resident of the United States was convicted on two first-degree burglaries in California. No violent acts were alleged to have been committed during the course of these burglaries. Deportation proceedings were initiated against him as an aggravated felon, i.e., the crimes were alleged crimes of violence as defined by the federal code at 18 U.S.C. §16(b). The subject of the deportation proceedings challenged his deportation on the grounds that section 16(b) was unconstitutionally vague. His challenge reached the United States Supreme Court and earlier this week, the Supreme Court agreed.

Under the United States Constitution, criminal laws must clearly define what acts are punishable. This is called the “vagueness doctrine” and finds its authority in the due process clause. A criminal statute that is not sufficiently definite in a way that an ordinary person could understand what acts would be unlawful under the statute violates due process rights and is said to be “void for vagueness.” Application of this doctrine to criminal statutes have been considered over the years in our state and federal courts. With the Supreme Court’s recent decision, deportation for a “crime of violence” conviction under 18 U.S.C. §16(b) is now void for vagueness.

This decision will affect relatively few persons facing criminal deportation but it does put a halt to the potential abuse of immigration law. The vagueness doctrine not only protects due process rights but also helps to keep a check on the arbitrary enforcement of laws.

For 25 years, Orange County criminal defense attorney William Weinberg has been a passionate defender of the rights afforded to all under our federal and state constitutions. He is available for a complimentary and confidential consultation to discuss your criminal matter. You may contact him at his Irvine office by calling 949-474-8008 or by emailing him at bill@williamweinberg.com.