Thursday, July 07, 2016

Johnson applies to Immigration and Nationality Act’s residual clause

         The Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), that the Armed Career Criminal Act’s (ACCA) residual clause’s definition of “violent felony” was void for vagueness. See 18 U.S.C. § 924(e)(2)(B)(ii). In Shuti v. Lynch, the Sixth Circuit extended Johnson’s reach to the Immigration and Nationality Act’s (“INA”), 8 U.S.C. § 1101 et seq., residual clause’s definition of a “crime of violence.”  

          Altin Shuti, a lawful permanent resident of the United States, was convicted of unarmed robbery which Michigan law defines as ‘“larceny of any money or other property’ accomplished by using ‘force or violence against any person who is present’ or ‘assault[ing] or put[ting] the person in fear.’” Mich. Comp. Laws § 750.530. After Mr. Shuti was sentenced to a prison term of more than a year, the Department of Homeland Security initiated proceedings to remove him to his home-country of Albania.  

          Under the INA, a non-citizen “convicted of an aggravated felony at any time after admission,” 8 U.S.C. § 1227(a)(2)(A)(iii), is ineligible for most forms of discretionary relief from removal. An “aggravated felony” means “a crime of violence (as defined in section 16 of title 18 …) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” as defined by 18 U.S.C. § 16(b), includes “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.”  

          In Mr. Shuti’s case, an immigration judge ordered his removal to Albania. Although the Supreme Court decided Johnson while Mr. Shuti’s case was on appeal, the Board of Immigration Appeals (BIA) stated that it did not address the constitutionality of the laws it administered. The BIA concluded that the void-for-vagueness doctrine did not apply to civil removal proceedings and affirmed the removal order.  

          In an opinion by Chief Judge Cole, the Sixth Circuit rejected the notion that the void-for-vagueness doctrine did not apply to removal proceedings because they were civil in nature. The court examined the residual clauses of the ACCA and the INA and found that they “undeniably bear a textual resemblance.” Chief Judge Cole noted that “both provisions combine indeterminacy about ‘how to measure the risk posed by a crime’ and ‘how much risk it takes for the crime to qualify’ as a crime of violence or a violent felony.” Thus, the court found that the INA’s residual clause fell “squarely within Johnson’s core holding” and that its definition of a “crime of violence” was void for vagueness.

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