Post on 18-May-2018
“Crime of Violence” Aggravated Felony Litigation The Federal Immigration Litigation Clinic (FILC) at the University of Minnesota, James H. Binger Center for New Americans represented three clients in the same constitutional challenge to 18 U.S.C. § 16(b). That statutory provision defines “crime of violence” and is incorporated into the Immigration and Nationality Act’s list of aggravated felonies. Each of the three clients had been convicted of a criminal offense which was determined to be a “crime of violence” under § 16(b). Based on those convictions, each client was ordered removed. In challenging their removability, each argued at the Board of Immigration Appeals (BIA) that § 16(b) was unconstitutional under the reasoning of Johnson v. United States, 135 S. Ct. 2551 (2015). Section 16(b) 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.” In order to determine this “substantial risk” of the use of force, courts have employed the categorical approach, which the Supreme Court recently identified as problematic in Johnson v. United States, 135 S. Ct. 2551 (2015). The Johnson court found ACCA’s residual clause, a statute with language strikingly similar to § 16(b)’s, to be unconstitutional because it left uncertain how courts would a) “estimate the risk posed by a crime” and b) determine “how much risk it takes for a crime to qualify as a violent felony.” Id. at 2557–58. FILC argued, as did the lawyers for Dimaya, that § 16(b) suffered from the same defects and ought to be found to be unconstitutionally vague. FILC students and attorneys brought the appeal to the Eighth Circuit, where the case is currently stayed pending the outcome of the Supreme Court’s consideration of Sessions v. Dimaya. Analogizing to Johnson, each client had argued that § 16(b) was unconstitutionally vague because, like ACCA, it required judges to envision the typical ways in which a crime would be committed as well as the level of risk that was required to make such a conviction a “crime of violence.” Arising in the Ninth Circuit, Dimaya presents the same constitutional challenge to 16(b). That case was argued January 17, 2017 and will likely be decided later this term. The Supreme Court will soon decide whether § 16(b) is unconstitutionally vague. If the Court decides that it is, any order of removal entered under the auspices of § 16(b) will be subject to a challenge. On the other hand, if the Court determines that § 16(b) is in fact constitutional, challenges to removal orders will only be available under the classic “categorical approach.” Like for FILC’s clients, this will involve arguing that a particular conviction is not categorically a “crime of violence,” under the Dimaya ruling, because there is no “substantial risk” of the use of physical force in the commission of the crime. Alternatively, the Dimaya decision may not fully be resolved if there is a 4–4 split. In that case, Circuit Courts that have not already done so, like the Eighth Circuit, may be forced to rule on the constitutionality of § 16(b); lawyers in those Circuits, and here in the Eighth Circuit, should argue both the constitutionality of § 16(b) as well as that their client’s crimes do not constitute “crimes of violence.” Any attorney with a client who was ordered removed on the basis of § 16(b) should argue its constitutionality so as to preserve the issue for appeal in the event that Dimaya is decided favorably for those clients.
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No. 16-1428
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Kong Meng Xiong, Petitioner
v.
Loretta E. Lynch Attorney General of the United States, Respondent
PETITION FOR REVIEW FROM THE UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS
AGENCY CASE NUMBER: A028 077 173
PETITIONER’S OPENING BRIEF
Nadia Anguiano-Wehde John Bruning Charles Barrera Moore Certified Student Attorneys Benjamin Casper MN #0276145 Julia Decker MN #0396438 Supervising Attorneys University of Minnesota Law School Center for New Americans 229 19th Avenue South Minneapolis, MN 55455 612-625-5515
Attorneys for Petitioner Kong Meng Xiong
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SUMMARY OF THE CASE
The BIA’s decision that Xiong’s misdemeanor burglary conviction was a
“crime of violence” aggravated felony should be reversed because the Supreme
Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015), that the
residual clause of the Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague, applies with equal force to 18 U.S.C. § 16(b). Section
16(b)’s operation under the categorical approach is indistinguishable. Because
§ 16(b), which served as the basis for Xiong’s removal order and his ineligibility to
apply for cancellation of removal, is unconstitutionally vague, this Court should
reverse the BIA’s holding that Xiong’s conviction was a “crime of violence” and
remand for further review.
Alternatively, if § 16(b) is constitutional, this Court should hold that Xiong’s
second degree burglary conviction is not a “crime of violence” aggravated felony.
Under Moncrieffe’s “minimum conduct” analysis, 133 S. Ct. 1678, 1684 (2013),
Xiong’s statute of conviction poses no substantial risk of the use of force because it
allows for conviction when a defendant gains entry to an unoccupied dwelling
without force or the intent to commit a crime, and commits a non-violent offense
therein. Minn. Stat. § 609.582, Subd. 2(a)(1). Petitioner respectfully requests oral
argument of twenty minutes per side to present this important issue to the Court.
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TABLE OF CONTENTS
SUMMARY OF THE CASE ...................................................................................... i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF JURISDICTION.......................................................................... 1 STATEMENT OF ISSUES ....................................................................................... 2 STATEMENT OF THE FACTS AND CASE .......................................................... 3 SUMMARY OF ARGUMENT ............................................................................... 12 ARGUMENT ........................................................................................................... 15
I. Standard of Review ............................................................................. 15
II. Xiong’s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a “Crime of Violence” Under 18 U.S.C. § 16(b) Because That Statutory Provision Is Unconstitutionally Vague ...................... 15
A. Johnson Holds ACCA’s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes ...................... 16
B. Like ACCA’s Residual Clause, 18 U.S.C. § 16(b) Is Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes ...................................................................................... 20
III. Alternatively, Even if 18 U.S.C. § 16(b) Is Constitutional, a Conviction Under Minn. Stat. § 609.582, Subd. 2(a)(1) Is Categorically Not a “Crime of Violence” Under § 16(b) ................... 30
A. “Minimum Conduct” Is the Proper Categorical Analysis Under § 16(b) After the Supreme Court Abrogated the “Ordinary Case” Approach in Johnson ..................................................... 30
B. Under the Correct “Minimum Conduct” Test, Second-Degree Burglary Does Not Pose a “Substantial Risk” of Force ........... 32
CONCLUSION ........................................................................................................ 44
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TABLE OF AUTHORITIES
Federal Cases
Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) ................................................. 29
Arriaga v. Mukasey, 521 F.3d 219 (2d Cir. 2008) ................................................... 21
Begay v. United States, 553 U.S. 137 (2008) .......................................................... 17
De La Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006) .............................. 26
Demore v. Kim, 538 U.S. 510 (2003) ...................................................................... 21
Descamps v. United States, 133 S. Ct. 2276 (2013) ................................................ 33
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) ............................................ passim
Doe v. Holder, 651 F.3d 824 (8th Cir. 2011). .......................................................... 15
Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008) ......................................... 21
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ................................................. 32
Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) .................................................... 29
James v. United States, 550 U.S. 192 (2007) .................................................. passim
Johnson v. United States, 135 S. Ct. 2551 (2015) ........................................... passim
Johnson v. United States, 559 U.S. 133 (2010) ................................................ 31, 36
Jordan v. De George, 341 U.S. 223 (1951) ............................................................. 21
Leocal v. Ashcroft, 543 U.S. 1 (2004) ............................................................. passim
Matter of Francisco-Alonzo, 26 I. & N. Dec. 594 (B.I.A. 2015) ........... 8, 11, 31, 41
Mhaidli v. Holder, 381 F.App’x 521 (6th Cir. 2010) (unpublished) ....................... 21
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ................................................. passim
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Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) ................................................ 36
Perez-Munoz v. Keisler, 507 F.3d 357, 362–64 (5th Cir. 2007) ............................. 24
Reno v. Flores, 507 U.S. 292 (1993) ....................................................................... 21
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) ......................... 23, 24
Shepard v. United States, 544 U.S. 13 (2005) ......................................................... 33
Taylor v. United States, 495 U.S. 575 (1990) ................................................... 17, 33
United States v. Alas-Castro, 184 F.3d 812 (8th Cir. 1999) .................................... 27
United States v. Avila, 780 F.3d 1100, 1107 ............................................................ 23
United States v. Birbragher, 603 F.3d 478 (8th Cir. 2010) ..................................... 15
United States v. Castleman, 134 S. Ct. 1405 (2014) ............................................... 36
United States v. Dawn, 685 F.3d 790 (8th Cir. 2012) ............................................. 36
United States v. Fish, 758 F.3d 1 (1st Cir. 2014) .................................................... 23
United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) .................. 26, 27
United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016) ........................ 20
United States v. Howell, 552 F.3d 709 (8th Cir. 2009) ........................................... 15
United States v. Keelan, 786 F.3d 865 (11th Cir. 2015) .......................................... 23
United States v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993) ............................ 9, 39
United States v. Prickett, 2015 WL 5884904 (W.D. Ark. Oct. 8, 2015), appeal docketed. ............................................................................................................... 28
United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007) .................. 24, 26
United States v. Spudich, 510 F.3d 834 (8th Cir. 2008) .......................................... 33
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), reh’g denied ............... 28, 29
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United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007) ............. 22, 23, 36
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) .......................... 2, 12, 20
Van Don Nguyen v. Holder, 571 F.3d 524 (6th Cir. 2009) ...................................... 23
Welch v. United States, 136 S. Ct. 1257 (2016).................................... 12, 17, 19, 28
State Cases
Munger v. State, 749 N.W.2d 335 (Minn. 2008)…………………………………. 35
State v. Anderson, 806 N.W.2d 856 (Minn. Ct. App. 2011)……………………...42
State v. Garcia-Gutierrez, 844 N.W.2d 519 (Minn. 2014)……………………….42
State v. Nelson, 363 N.W.2d 81 (Minn. Ct. App. 1985)…………………………..35
State v. Olson, 382 N.W.2d 279 (Minn. Ct. App. 1986)………………………….37
State v. Rodriguez, 863 N.W.2d 424 (Minn. Ct. App. 2015)……………..35, 36, 37
Federal Statutes
18 U.S.C. § 16 ................................................................................................. 6, 8, 22
18 U.S.C. § 16(b) ............................................................................................. passim
18 U.S.C. § 924(c)(3)(B) .................................................................................. 28, 29
18 U.S.C. § 924(e)(2)(B)(ii) ............................................................................ passim
8 U.S.C. § 1101(a)(43)(F) ................................................................................ passim
8 U.S.C. § 1101(a)(43)(G) .....................................................................................5, 6
8 U.S.C. § 1159(a)(2) ................................................................................................. 4
8 U.S.C. § 1227(a)(2)(A)(iii) .............................................................................. 5, 21
8 U.S.C. § 1227(a)(2)(E)(i) ....................................................................................5, 9
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8 U.S.C. § 1229b(a) ............................................................................................ 4, 29
8 U.S.C. § 1229b(a)(3) ............................................................................................. 21
8 U.S.C. § 1231(a)(3) ................................................................................................. 3
8 U.S.C. § 1252 .......................................................................................................... 1
8 U.S.C. § 1252(a)(1) ................................................................................................. 1
8 U.S.C. § 1252(b)(1)................................................................................................. 1
8 U.S.C. §1229(a) .................................................................................................... 29
State Statutes
Minn. Stat. § 609.2242, Subd. 1(2) ............................................................................ 5
Minn. Stat. § 609.344, Subd. 1(d) .............................................................................. 9
Minn. Stat. § 609.36 ................................................................................................. 37
Minn. Stat. § 609.385 ............................................................................................... 37
Minn. Stat. § 609.42 ................................................................................................. 37
Minn. Stat. § 609.5631 ............................................................................................... 5
Minn. Stat. § 609.581, Subd. 4 ................................................................................ 34
Minn. Stat. § 609.581, Subd. 4(b) ............................................................................ 35
Minn. Stat. § 609.581, Subd. 4(c) ............................................................................ 35
Minn. Stat. § 609.582, Subd. 1(a) ............................................................................ 38
Minn. Stat. § 609.582, Subd. 1(b) ............................................................................ 42
Minn. Stat. § 609.582, Subd. 2(a) ............................................................... 15, 32, 34
Minn. Stat. § 609.582, Subd. 2(a)(1) ............................................................... passim
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SUMMARY OF ARGUMENT
This Court should hold that § 16(b) is unconstitutionally vague, and on this
basis reverse the BIA’s decision that Xiong’s conviction for second degree
burglary can be a “crime of violence” aggravated felony. In Johnson v. United
States, the Supreme Court held that the residual clause of ACCA was
unconstitutionally vague. 135 S. Ct. 2551 (2015). In so holding, the Supreme Court
invalidated a statute that bears striking similarities to 18 U.S.C. § 16(b), the statute
under which Xiong was found to have a conviction for a “crime of violence”
aggravated felony. The Supreme Court found that the analysis required by
ACCA’s residual clause was unconstitutional because inquiring into the nature and
extent of risk for a given crime “under the categorical approach required courts to
assess the hypothetical risk posed by an abstract generic version of the offense.”
Welch v. United States, 136 S. Ct. 1257, 1262 (2016).
Section 16(b) suffers from this same defect because it requires a court to
apply an inexact standard both in determining the level of risk posed by a given
offense and the amount of risk necessary to meet an undetermined threshold of
“substantial risk.” See Johnson, 135 S. Ct. at 2257–58. The two circuit courts that
have made a final determination on Johnson’s applicability to § 16(b) have found
the statute to be unconstitutional. See United States v. Vivas-Ceja, 808 F.3d 719
(7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). This Court
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should similarly find § 16(b) to be unconstitutional because, like the statute in
Johnson, it requires a judge to engage in an imprecise inquiry into the “nature of
the crime” as well as an estimation of the “substantial risk” presented by a given
offense. See 18 U.S.C. § 16(b). Therefore, this Court ought to grant Xiong’s
petition for review, reverse the BIA’s holding that Xiong’s second degree burglary
conviction is a “crime of violence” aggravated felony, and remand for review by
the BIA.
Alternatively, if the Court finds § 16(b) to be constitutional, it should still
reverse the decision of the BIA because, in reaching its conclusion that Xiong had
a “crime of violence” aggravated felony, the BIA erroneously applied the
“ordinary case” framework, which the Supreme Court abrogated in Johnson.
Johnson identified the defects of the “ordinary case” approach and concluded that
those defects made ACCA’s residual clause unconstitutional, thus rejecting the
“ordinary case” approach altogether. Johnson, 135 S. Ct. at 2560. Under the
proper “minimum conduct” standard, Xiong has not been convicted of an
aggravated felony because the Minnesota statute allows for a conviction in
scenarios in which no force is used to gain entry into an unoccupied building, there
is no intent to commit a crime upon entry, and the individual commits a
misdemeanor, non-violent crime therein. The BIA erred when it determined that all
burglaries were “crime of violence” aggravated felonies, as a proper element-based
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analysis would have revealed that second degree burglary under Minn. Stat.
§ 609.582, Subd. 2(a)(1) does not categorically involve a “substantial risk of
physical force.”
Even if the Court deems the “ordinary case” approach proper to apply to
§ 16(b), the BIA erred in concluding that the ordinary case of second degree
burglary presents a substantial risk that physical force will be used. Employing
either mode of analysis, the Court should reverse the decision of the BIA that
Xiong’s conviction for second degree burglary was a “crime of violence”
aggravated felony and remand to the BIA for a decision consistent with this
Court’s holding.
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ARGUMENT
I. Standard of Review
This Court reviews challenges to the constitutionality of a federal statute de
novo. United States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010); United
States v. Howell, 552 F.3d 709, 712 (8th Cir. 2009). This Court also reviews
questions of law de novo, including whether the BIA applied the correct legal
standard. Doe v. Holder, 651 F.3d 824, 829 (8th Cir. 2011).
II. Xiong’s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a “Crime of Violence” Under 18 U.S.C. § 16(b) Because That Statutory Provision Is Unconstitutionally Vague
Xiong’s conviction for second degree burglary under Minn. Stat. § 609.582,
Subd. 2(a) cannot lawfully be classified as a “crime of violence”—and thus this
Court should reverse and remand—because 18 U.S.C. § 16(b) is unconstitutionally
vague. Like ACCA’s residual clause, which the Supreme Court struck down in
Johnson v. United States, 135 S. Ct. 2551 (2015), § 16(b) is also unconstitutionally
vague because it requires courts to apply an “ordinary case” categorical analysis to
an inherently imprecise statutory definition, yielding an impermissibly vague
standard. As was held in Johnson, such analytical framework contravenes the
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Constitution by “produc[ing] more unpredictability and arbitrariness than the Due
Process Clause tolerates.”8 See Johnson, 135 S. Ct. at 2557–58.
To understand the shared characteristics of § 16(b) and ACCA’s residual
clause that render both provisions unconstitutionally vague, it is necessary to begin
with a short review of Johnson’s holding and reasoning.
A. Johnson Holds ACCA’s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes
In Johnson, the Supreme Court held that imposing increased sentences under
ACCA’s residual clause “denies due process of law” because the residual clause is
unconstitutionally vague. Johnson, 135 S. Ct. at 2556–57. Under ACCA,
sentences for violation of certain firearm offenses can be enhanced if the violator
has three or more prior convictions for a “violent felony.” ACCA defines “violent
felony” as:
“any crime punishable by imprisonment for a term exceeding one year . . . that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
8 Though Johnson arose in the criminal law context, the vagueness doctrine applies in immigration cases as well. See infra note 10.
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Subsection (i) of the violent felony definition is referred to as the “elements
clause,” and the italicized portion of subsection (ii) is the so-called “residual
clause.” Welch v. United States, 136 S. Ct. 1257, 1261 (2016). Generally, to
determine whether a particular crime qualifies as a violent felony under ACCA,
courts employ the categorical approach. Taylor v. United States, 495 U.S. 575,
600-02 (1990). “Under the categorical approach, a court assesses whether a crime
qualifies as a violent felony ‘in terms of how the law defines the offense and not in
terms of how an individual offender might have committed it on a particular
occasion.’” Johnson, 135 S. Ct. at 2557 (quoting Begay v. United States, 553 U.S.
137, 141 (2008)). That is, courts focus on statutory elements only, and make a
categorical determination of whether a crime fits the violent felony definition
without regard to the conduct that the particular defendant engaged in. See
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
In James v. United States, 550 U.S. 192 (2007), the Supreme Court
established the “ordinary case” framework for determining whether crimes were
categorically violent felonies under the residual clause. Ultimately deemed
unworkable by Johnson, James’s “ordinary case” framework required courts to
conjure up an idealized “ordinary” version of the crime in question, and then assess
whether that abstraction reached the quantum of risk necessary to qualify as a
violent felony. See Johnson, 135 S. Ct. at 2557. In Johnson, the Court lamented its
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failed attempts at applying James’s “ordinary case” framework to residual clause
cases in a principled and consistent manner, and ultimately concluded that the
residual clause’s operation under this framework violated due process. Id. at 2558–
60.
More specifically, the Supreme Court concluded that two “features” of
ACCA’s residual clause combined to make it unconstitutionally vague. Id. at 2557.
First, the Court reasoned that through James’s “ordinary case” directive that courts
imagine an idealized ordinary version of a crime, the residual clause left grave
uncertainty as to how courts were to estimate the potential risk posed by a crime
because the residual clause offered no guidance for determining what the ordinary
case of a crime was. Id. at 2557–58. Instead, the Johnson Court noted, courts were
simply left to speculate: “To take an example, does the ordinary instance of
witness tampering involve offering a witness a bribe? Or threatening a witness
with violence?” Id. at 2557. The residual clause, the Johnson Court reasoned,
simply offers no reliable way to choose between competing formulations of what
the “ordinary” version of a crime is. Id. at 2558.
Second, the Johnson Court concluded that the residual clause left uncertainty
about the quantum of risk necessary to fall within its scope. 135 S. Ct. at 2558. In
other words, the Court wasn’t only troubled by James’s mandate that judges
fabricate the idealized ordinary version of a crime; the Court was also troubled by
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the residual clause’s failure to provide sufficient guidance for determining if that
ordinary case reached the quantum of risk necessary to qualify as a violent felony.
Id. As the Court noted, “[i]t is one thing to apply an imprecise ‘serious potential
risk’ standard to real-world facts; it is quite another to apply it to a judge-imagined
abstraction.” Id. Without enough guidance to evaluate when the risk of the
idealized ordinary version of the crime was serious enough to cross the inherently
imprecise “serious potential risk” threshold, the residual clause left courts in a state
of unresolvable doubt. See id. at 2258–60.
As the Supreme Court summarized it, “the residual clause failed not because
it adopted a ‘serious potential risk’ standard but because applying that standard
under the categorical approach required courts to assess the hypothetical risk posed
by an abstract generic version of the offense.” Welch v. United States, 136 S. Ct.
1257, 1262 (2016). By combining the indeterminacy of the failed “ordinary case”
categorical method for measuring risk with the indeterminacy about the quantum
of risk necessary for a crime to qualify as a violent felony, the residual clause
“produces more unpredictability and arbitrariness than the Due Process Clause
tolerates.” Johnson, 135 S. Ct. at 2558.
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B. Like ACCA’s Residual Clause, 18 U.S.C. § 16(b) Is
Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes
Like ACCA’s residual clause, 18 U.S.C. § 16(b) is also unconstitutionally
vague—and should be struck down by this Court—because it requires courts to
employ the same failed “ordinary case” analytical framework against an inherently
imprecise statutory standard. As recognized by the Seventh and Ninth Circuits, 18
U.S.C. § 16(b) suffers from the same key indeterminacies as ACCA’s residual
clause because it “requires courts to 1) measure the risk by an indeterminate
standard of a ‘judicially imagined “ordinary case,”’ not by real-world facts or
statutory elements and 2) determine by vague and uncertain standards when a risk
is sufficiently substantial.” Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015);
accord United States v. Vivas-Ceja, 808 F.3d 719, 722–23 (7th Cir. 2015).9 As the
Johnson Court made clear, such fatal combination violates the Fifth Amendment’s
guarantee of due process, see Johnson, 135 S. Ct. at 2558, and this Court should
thus strike down § 16(b) as unconstitutionally vague.
9 The question of § 16(b)’s constitutionality in light of Johnson has also come before the Fifth Circuit. In United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), a panel of that circuit agreed with the Seventh and Ninth Circuits and held that § 16(b) was unconstitutionally vague under Johnson. The Fifth Circuit later granted rehearing en banc of Gonzalez-Longoria, and oral argument is scheduled for May 24, 2016.
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It is important to note that though Johnson considered a criminal statute,
“[i]t is well established that the Fifth Amendment entitles [noncitizens] to due
process of law in deportation proceedings.” See Demore v. Kim, 538 U.S. 510, 523
(2003) (alteration in original) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)).
Thus, Johnson’s reasoning is squarely applicable to Xiong’s challenge that § 16(b)
is unconstitutionally vague in the context of his deportation proceedings.10
Because § 16(b) is unconstitutionally vague, it cannot form the basis of
Xiong’s order of removal. Under the INA, a conviction for an “aggravated felony”
renders any non-citizen, including long-term permanent residents, removable and
statutorily ineligible for virtually all forms of relief from removal, including
cancellation. See 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1229b(a)(3). Section
1101(a)(43)(F) of Title 8 defines “aggravated felony” through a list of categories
of offenses, one type of which is a “crime of violence” for which the term of
10 While the Supreme Court has not previously struck down as unconstitutionally vague any statutory grounds for deportation, it has acknowledged that unconstitutionally vague statutory grounds for deportation would not be enforceable. Jordan v. De George, 341 U.S. 223, 231 (1951) (“Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.”). Several circuit courts have also considered void for vagueness challenges to immigration statutes. See Dimaya v. Lynch, 803 F.3d 1110, 1112–14 (9th Cir. 2015); Mhaidli v. Holder, 381 F.App’x 521, 525–26 (6th Cir. 2010) (unpublished); Arriaga v. Mukasey, 521 F.3d 219, 222–23 (2d Cir. 2008); Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008).
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imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). “Crime of violence,”
in turn, is defined by 18 U.S.C. § 16 as:
“(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) 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.” 18 U.S.C. § 16 (emphasis added).
To determine whether an offense is a “crime of violence” under this statute,
courts employ the categorical approach. See Leocal v. Ashcroft, 543 U.S. 1, 7
(2004) (Section 16’s “language requires us to look to the elements and the nature
of the offense of conviction, rather than to the particular facts relating to
petitioner’s crime.”). Indeed, though there are relatively few Eighth Circuit
decisions considering whether a particular offense is a “crime of violence” under
§ 16(b), when this Court has had occasion to consider the issue, it has made clear
that it does not look to the facts underlying the particular conviction, but instead
must apply the categorical approach and look at the “nature of the offense” as
mandated by the § 16(b) statutory text. United States v. Torres-Villalobos, 487
F.3d 607, 614–15 (8th Cir. 2007) (citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004))
(emphasis added).
More specifically, analysis under § 16(b) requires this Court to make a
categorical determination of whether the offense “naturally involve[s] a person
acting in disregard of the risk that physical force might be used against another in
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committing an offense.” Leocal, 543 U.S. at 10; Torres-Villalobos, 487 F.3d at
615. Critically, such inquiry into the “nature” of a particular crime, to determine if
the crime “naturally” involves the risk that force “might” be used, is plagued by the
same indeterminacy inherent in the “ordinary case” analysis that conspired to
render ACCA’s residual clause unconstitutional. Just as ACCA’s residual clause
posed an irresolvable question about whether an idealized “ordinary” offense
would “involve conduct” that poses a potential risk of physical injury, § 16(b)
poses an equally irresolvable question about whether an idealized “ordinary”
version of an offense “by its nature” involves a substantial risk that force may be
used.
The language of § 16(b) is in fact so similar to that of ACCA’s residual
clause that prior to Johnson, all circuit courts to have addressed the issue had
imported the residual clause’s now discredited “ordinary case” standard into their
§ 16(b) jurisprudence.11 The Dimaya Court expressly acknowledged that the
11 See United States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015) (“All other circuits to examine the issue have held the proper inquiry under § 16(b) is whether the conduct encompassed by the elements of the offense raises a substantial risk the defendant may use physical force in the ‘ordinary case,’ even though, at the margin, some violations of the statute may not raise such risk.”); United States v. Avila, 780 F.3d 1100, 1107 (4th Cir. 2014) (quoting James v. United States, 550 U.S. 192, 208 (2007)) (applying James’s “ordinary case” standard to § 16(b) analysis); United States v. Fish, 758 F.3d 1, 10–14 (1st Cir. 2014) (applying “ordinary case” standard to § 16(b)); Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013) (same); Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009) (same); United States v. Sanchez-Garcia, 501 F.3d 1208, 1213 (10th
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“ordinary case” framework was the proper mode of analysis for § 16(b) cases.
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (quoting Rodriguez-
Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013)) (“[C]ourts considering
both § 16(b) and the residual clause must decide what a ‘“usual or ordinary”
violation’ of the statute entails and then determine how great a risk of injury that
‘ordinary case’ presents.”). The Dimaya Court therefore held that the Johnson
Court’s reasoning “applies with equal force to the similar statutory language and
identical mode of analysis used to define a crime of violence” under § 16(b). Id. at
1115.
The Solicitor General of the United States also conceded as much in the
course of litigating Johnson, acknowledging that § 16(b) is subject to the same
“ordinary case” analysis as ACCA’s residual clause and that § 16(b) is thus equally
susceptible to a vagueness challenge:
Although Section 16 refers to the risk that force will be used rather than that injury will occur, it is equally susceptible to petitioner’s central objection to the residual clause: Like the ACCA, Section 16 requires a court to identify the ordinary case of the commission of the offense and to make a commonsense judgment about the risk of confrontations and other violent encounters. Supplemental Brief for the United States at 22–23, Johnson v. United States, 135 S. Ct. 2551 (2015) (No. 13-7120) (emphasis in original).
Cir. 2007) (same); Perez-Munoz v. Keisler, 507 F.3d 357, 362–64 (5th Cir. 2007) (same).
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In short, inherent in § 16(b) is the first key indeterminacy that the Johnson
Court found in the residual clause because § 16(b)’s operation under the
categorical approach similarly ties judicial assessment of risk not to real-world
facts or statutory elements but to the abstract “nature” or ordinary case of a
particular offense.
Section 16(b) also contains the second of the key indeterminacies that
combined to render ACCA’s residual clause unconstitutionally vague. Similar to
ACCA’s residual clause, the statutory language “by its nature, involves substantial
risk” contained in § 16(b) is also inherently imprecise and leaves great uncertainty
about the quantum of risk necessary for an offense to qualify as a “crime of
violence.” Like the residual clause, § 16(b) simply fails to provide enough
guidance as to when risk is sufficiently substantial to fall under the statute.
In fact, § 16(b) provides even less guidance than ACCA’s residual clause. If
the enumerated offenses preceding ACCA’s residual clause failed to provide
sufficient guidance for courts’ quantum of risk analysis, the complete lack of
enumerated crimes in § 16(b) results in even less guidance, rendering § 16(b) even
more vague. See Dimaya v. Lynch, 803 F.3d 1110, 1118 n.13 (9th Cir. 2015). The
Johnson Court lamented that “[c]ommon sense has not even produced a consistent
conception of the degree of risk posed by each of the [residual clause’s] four
enumerated crimes [and] there is no reason to expect it to fare any better with
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respect to thousands of unenumerated crimes.” Johnson, 135 S. Ct. at 2559
(emphasis added). Thus, because § 16(b) forces courts to apply an imprecise
“substantial risk” standard completely in a vacuum, devoid of comparable offenses
to guide the analysis, it can only invite more arbitrary enforcement than ACCA’s
residual clause.
Evidencing the inherent indeterminacy and potential for arbitrary
enforcement associated with § 16(b)’s quantum of risk analysis, courts have
disagreed about whether the commission of a particular crime carries “substantial
risk” of violence within the meaning of § 16(b).12 This is unsurprising, as the
ordinary definition of “substantial” is subjective and wide-ranging, varying from
“real; true; not seeming or imaginary” to “having strong substance; strong; stout.”13
Furthermore, even if there were one set definition of the word “substantial,” there
is no guidance in it as to quantum, i.e. when that which is being measured reaches
the requisite level to fall within the definition.
12 Compare De La Paz Sanchez v. Gonzales, 473 F.3d 133, 135 (5th Cir. 2006) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.1999)) (holding that a Texas conviction for unauthorized use of motor vehicle carries substantial risk of violence and is thus a “crime of violence” under § 16(b)), with United States v. Sanchez-Garcia, 501 F.3d 1208, 1212–1213 (10th Cir. 2007) (expressly declining to follow the Fifth Circuit’s Galvan-Rodriguez and holding that a similar unauthorized use statute did not carry a substantial risk of violence and was therefore not a “crime of violence” under § 16(b)). 13 See substantial, Webster's New Universal Unabridged Dictionary (2d ed. 1983).
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Not only does the word “substantial” itself offer no guidance as to how
much risk satisfies the statute, but the statutory language of § 16(b) does not add
any guidance to an already vague term. This Court has cited with approval a Fifth
Circuit decision which stated that “when analyzing the operative phrase
‘substantial risk,’ it is not necessary that ‘[the risk] must occur in every instance;
rather a substantial risk requires a strong probability that the event, in this case the
application of physical force during the commission of the crime, will occur.’”
United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (alteration in
original) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.
1999)). Such probabilistic formulation—defining “substantial risk” as requiring a
“strong probability” that something will occur—is an inherently indeterminate
threshold akin to ACCA residual clause’s “serious potential risk” standard. In
short, as with ACCA, § 16(b) “requires courts to . . . determine by vague and
uncertain standards when a risk is sufficiently substantial,” leaving great
uncertainty as to the quantum of risk it takes for a crime to fall under its ambit.
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015).
The combination of the aforementioned indeterminacies renders § 16(b)
unconstitutionally vague. As the Johnson Court made clear, and the Supreme Court
reiterated in Welch v. United States, 136 S. Ct. 1257 (2016), the “indeterminacy of
the wide ranging inquiry” that results from applying an inherently imprecise
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standard under the categorical approach, “requir[ing] courts to assess the
hypothetical risk posed by an abstract generic version” of offenses, violates due
process. 136 S. Ct. 1257, 1262 (2016) (holding that Johnson announced a new
substantive rule that has retroactive effect in cases on collateral review). As such,
by invoking a categorical analysis to ask courts to imagine the abstract “nature” or
ordinary case of a particular offense and then apply an imprecise “substantial risk”
standard to determine when such abstraction reaches the requisite level of risk to
fall under the statute, § 16(b) combines the same key indeterminacies that rendered
ACCA’s residual clause unconstitutional. This Court should therefore declare
§ 16(b) unconstitutional as well.
Petitioner is mindful that the Sixth Circuit has recently held that Johnson
does not compel the holding that 18 U.S.C. § 924(c)(3)(B), a criminal firearm
statute with nearly identical wording to § 16(b), is unconstitutionally vague.14
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), reh’g denied. However,
apart from the fact that Taylor considered a different statute, this Court should
decline to follow Taylor’s reasoning because it is unpersuasive. The Sixth Circuit’s
14 A case pending before this Court presents a void-for-vagueness challenge to 18 U.S.C. § 924(c)(3)(B). Brief for Appellant at 6–7, United States v. Prickett, No. 15-3486 (8th Cir. Dec. 3, 2015). The district court in Prickett held that Johnson was inapplicable to Prickett’s case because a categorical analysis is not required for consistent application of § 924(c)(3)(B) and that the statute is not unconstitutionally vague. United States v. Prickett, 2015 WL 5884904, at *2–3 (W.D. Ark. Oct. 8, 2015), appeal docketed.
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holding is based largely on minor distinctions drawn between the text of
§ 924(c)(3)(B) and ACCA’s residual clause that are not material in light of the
more fundamental characteristics these statutory provisions share in common. Both
provisions require a categorical analysis of inherently imprecise text, resulting in
two levels of indeterminacy as to future risk and making the analysis of that risk
more hypothetical and unpredictable than the Constitution allows.
In sum, and not withstanding Taylor’s reasoning to the contrary, this Court
should declare § 16(b) unconstitutional because it combines the same two key
indeterminacies as the residual clause, thereby “den[ying] fair notice to defendants
and invit[ing] arbitrary enforcement” in violation of the Fifth Amendment’s
guarantee of due process of law. Johnson, 135 S. Ct. at 2557. The IJ and BIA
decisions applying a constitutionally invalid statute to hold Xiong removable as an
aggravated felon and preclude his application for cancellation were unlawful,
violate his statutory right to apply for cancellation relief, 8 U.S.C. §1229b(a), and
also violated his right to due process of law.15 Remand is required.
15 Xiong notes this Court’s decisions including, Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008), holding that a due process claim cannot be based on failure to receive discretionary relief. Xiong respectfully believes Guled is distinguishable from his case, where a facially unconstitutional statute has been applied to find him removable and ineligible for relief, that Guled is incorrect, and that he is entitled to due process, including determination of his removal case and eligibility to seek relief under constitutional statutes. E.g., Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) (“The availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right.”).
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III. Alternatively, Even if 18 U.S.C. § 16(b) Is Constitutional, a
Conviction Under Minn. Stat. § 609.582, Subd. 2(a)(1) Is
Categorically Not a “Crime of Violence” Under § 16(b)
Even if this Court were to conclude that 18 U.S.C. § 16(b) is not void for
vagueness, Xiong’s conviction for second degree burglary is categorically not a
“crime of violence.” In light of Johnson, which abandoned the “ordinary case”
method for analyzing inherently probabilistic statutes, the BIA should instead have
asked whether the minimum conduct required for a conviction of second degree
burglary falls within the scope of the generic federal definition of a “crime of
violence” at § 16(b). Applying the correct “minimum conduct” approach, second
degree burglary in Minnesota is categorically not a “crime of violence,” so the
Court should reverse and remand.
A. “Minimum Conduct” Is the Proper Categorical Analysis Under § 16(b) After the Supreme Court Abrogated the “Ordinary Case” Approach in Johnson
In determining whether a given conviction qualifies as a “crime of violence”
under 18 U.S.C. § 16(b), rather than looking at any facts underlying the conviction,
courts must instead apply the categorical approach and look to the elements of the
offense under which the defendant was prosecuted. Leocal v. Ashcroft, 543 U.S. 1,
7 (2004). In James v. United States, the Supreme Court introduced the “ordinary
case” analysis as the appropriate method for applying the categorical approach to
the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii). 550 U.S. 192, 207–08 (2007).
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The BIA thereafter imported James’s “ordinary case” analysis to its own
application of § 16(b), see, e.g., Matter of Francisco-Alonzo, 26 I. & N. Dec. 594,
596 (B.I.A. 2015), as have circuit courts. See supra note 11. The Supreme Court
found the results produced by the “ordinary case” inquiry to be inherently
speculative and inconsistent, and abrogated James’s “ordinary case” approach in
Johnson v. United States, 135 S. Ct. 2551, 2557–58 (2015). See Section II, supra.
Because the Supreme Court overruled James and its ordinary case analysis in
Johnson, the BIA should no longer apply “ordinary case” to § 16(b).
Instead, the BIA should have applied the method of categorical analysis the
Supreme Court still employs, the “minimum conduct” approach exemplified in
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). Under this correct
approach, the BIA should have presumed that Xiong’s “conviction ‘rested upon
[nothing] more than the least of th[e] acts’ criminalized, and then determine[d]
whether even those acts are encompassed by the generic federal offense.” Id.
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). For a statute of
conviction to not be considered a “crime of violence” under the “minimum
conduct” approach, there must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside the
generic definition of a crime.” Id. at 1685 (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)). To the extent the BIA ruled a question of burden of
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proof altered the legal analysis in the context of this case that was legal error.
Moncrieffe, 133 S. Ct. at 1687 (“Escaping aggravated felony treatment does not
mean escaping deportation…only…mandatory removal. [H]aving been found not
to be an aggravated felon, the noncitizen may seek relief . . .”)
B. Under the Correct “Minimum Conduct” Test, Second-Degree Burglary Does Not Pose a “Substantial Risk” of Force
Under the “minimum conduct” approach, the second degree burglary statute
cannot be classified as a “crime of violence” under § 16(b) because the minimum
conduct that Minnesota prosecutes does not carry with it a substantial risk that
physical force will be used. See Moncrieffe, 133 S. Ct. at 1684–85.
Minnesota’s second-degree burglary statute punishes a person who “enters a
building without consent and with intent to commit a crime, or enters a building
without consent and commits a crime while in the building, either directly or as an
accomplice . . . .” Minn. Stat. § 609.582, Subd. 2(a). This statute is divisible
because it sets out multiple alternative elements by which a defendant can
accomplish the crime; the statute requires that the burglar enter a dwelling without
consent and “with intent to commit a crime” or “commits a crime while in the
building.” Minn. Stat. § 609.582, Subd. 2(a); see also Minnesota Jury Instruction
Guides, Criminal (CRIMJIG), 17.06 (2006). The “with intent to commit a crime”
prong corresponds closely to the generic definition of burglary adopted in Taylor
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No. 16-1428
________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
________________________________________________
KONG MENG XIONG,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
_________________________________________
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
A028-077-173
___________________________________________
BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION PROJECT
OF THE NATIONAL LAWYERS GUILD,
IMMIGRANT LAW CENTER OF MINNESOTA,
HENNEPIN COUNTY PUBLIC DEFENDER’S OFFICE
AND IMMIGRANT LEGAL RESOURCE CENTER
IN SUPPORT OF PETITIONER
___________________________________________
Sejal Zota
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 108
sejal@nipnlg.org
Counsel for Amici Curiae
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and 29(c), amici curiae National
Immigration Project of the National Lawyers Guild, Immigrant Law Center of
Minnesota, Hennepin County Public Defender’s Office, and Immigrant Legal
Resource Center state that no publicly held corporation owns 10% or more of the
stock of any of the parties listed above, which are nonprofit organizations.
Pursuant to Fed. R. App. P. 29(c)(5), amici curiae state that no counsel for
the party authored this brief in whole or in part, and no party, party’s counsel, or
person or entity other than amici curiae and their counsel contributed money that
was intended to fund preparing or submitting the brief.
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TABLE OF CONTENTS
DISCLOSURE STATEMENT……………………………………………………...i
TABLE OF CONTENTS ………………………………………………………….ii
TABLE OF AUTHORITIES ……………………………………………………..iii
INTRODUCTION AND STATEMENT OF AMICI………………………………1
ARGUMENT……………………………………………………………………….4
I. Like the ACCA Residual Clause, 18 U.S.C. § 16(b) Is Void for
Vagueness……………………………………………………………………4
A. Void for vagueness principles apply to immigration law…………………...4
B. Section 16(b) suffers from the same (or more significant) defects than
the ACCA’s residual clause…………………………………………………6
C. Any attempt by the Government to distinguish Section 16(b) from the
residual clause fails…..………………………….........................................11
1. The list of enumerated offenses preceding ACCA’s residual clause
was not material to the Supreme Court’s decision Johnson………..11
2. Any minor difference in the statutes’ reach is immaterial…………..13
3. Section 16(b) is as confusing as the ACCA’s residual clause………13
4. Courts have long treated the Residual Clause and Section 16(b)
as functional equivalents…………………………………………….14
II. This Court Should Strike Section 16(b) Because It Is a Facially
Vague Statute.……………………………………………………………...16
CONCLUSION…………………………………………………………………...17
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TABLE OF AUTHORITIES
Cases
A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233 (1925) ………………………4
Begay v. United States, 553 U.S. 137 (2008) . . . . . . . . . . . . . ……………….10, 14
Brecht v. Abrahamson, 507 U.S. 619 (1993)……………………………………...10
Chambers v. United States, 555 U.S. 122 (2009) . . . . . . . . . . ……………….10, 14
City of Timber Lake v. Cheyenne River Sioux Tribe,
10 F.3d 554 (8th Cir.1993) …………………………………………………10, 11
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) ………………....................passim
James v. United States, 550 U.S. 192 (2007) . . . . . . . . . ………….......8, 10, 14, 16
Jimenez-Gonzales v. Mukasey, 548 F.3d 557 (7th Cir. 2008) . . . . ………………15
Johnson v. United States, 135 S. Ct. 2551 (2015) . . . . . . . . . ……………….passim
Jordan v. DeGeorge, 341 U.S. 223 (1951) ………………………………………...5
Keyishian v. Board of Regents of Univ. of State of N.Y.,
385 U.S. 589 (1967) ……………………………………………………………..5
Kolender v. Lawson, 461 U.S. 352 (1983) ………………………………………...3
Leocal v. Ashcroft, 543 U.S. 1 (2004) ……………………………………..6, 10, 14
Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015) …………………………….16
Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) ……..………………..8
Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997)……………………….16
Matter of Singh, 25 I&N Dec. 67 (BIA 2012) ……..…………………………..8, 15
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Mellouli v. Lynch, 135 S. Ct. 1980 (2015)…………………………………………5
Padilla v. Kentucky, 559 U.S. 356 (2010) …………………………………………5
Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) .………………………………...15
Stephenson v. Davenport Community School Dist.,
110 F.3d 1303 (8th Cir. 1997) …………………………………………………...5
Sykes v. United States, 564 U.S. 1 (2011) . . . . . . . . . . . . . . . . . ………………....10
Taylor v. United States, 495 U.S. 575 (1990) . . . . . . . . . . . . . . . . . ……………….6
Turner. v. Rogers, 131 S. Ct. 2507 (2011) ……………………………………….10
United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998)………….15
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) . . . . . ……………...15
United States v. Mayer, 560 F.3d 948 (9th Cir. 2009) …………………………… 7
United States v. Reese, 92 U.S. 214 (1876) ………………………………………16
United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011) .........................15
United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) ………………………….... 2
United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) ………………… passim
United States v. Walker, 452 F.3d 723 (8th Cir. 2006) …………………………..15
United States v. Williams, 537 F.3d 969 (8th Cir. 2008) …………………………10
Zadvydas v. Davis, 533 U.S. 678 (2001) ……..…………………………………..16
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Statutes
8 U.S.C. § 1101(a)(43)(F) ……..…………………………………………………..1
8 U.S.C. § 1227(a)(2)(E)(i)……..………………………………………………….1
18 U.S.C. § 16(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………...passim
18 U.S.C. § 924(e)(2)(B)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……………...1
Federal Rules
Federal Rule of Appellate Procedure 29(b)………………………………………...1
Federal Rule of Appellate Procedure 29(c)(5)……………………………………..1
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INTRODUCTION AND STATEMENT OF AMICI
The Board of Immigration Appeals (“BIA” or “Board”) found that
Petitioner’s conviction qualifies as a “crime of violence” under 18 U.S.C. § 16(b),
and that he is thereby deportable for an aggravated felony. It falls to this Court to
decide whether the statutory language of 18 U.S.C. § 16(b) is unconstitutionally
vague under Johnson v. United States, 135 S. Ct. 2251 (2015), in which the
Supreme Court held that a parallel crime of violence definition is void for
vagueness. The National Immigration Project of the National Lawyers Guild,
Immigrant Law Center of Minnesota (ILCM), Hennepin County Public Defender’s
Office and Immigrant Legal Resource Center (ILRC) respectfully submit this brief
to assist the Court with this question. See Fed. R. App. P. 29 (b). It is one of first
impression, of exceptional importance, and presents the Court an opportunity to
uphold fair process for noncitizens. Petitioner consents to amici appearing in this
case. On March 28, 2016, counsel for Respondent, Anthony Payne, informed
undersigned counsel that Respondent does not oppose this Motion if filed timely.
In Johnson v. United States, 135 S. Ct. at 2557-58, the Supreme Court held
that the “residual clause” of the Armed Career Criminal Act (ACCA)1 is
unconstitutionally vague. The question here is whether Johnson applies to the
1 In pertinent part, the ACCA residual clause defines a “violent felony” as an
offense that “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
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notably similar “crime of violence” set out at 18 U.S.C. § 16(b),2 and incorporated
into the immigration statute’s definition of a crime of violence and crime of
domestic violence.3 The Ninth and Seventh Circuit Courts of Appeals have
considered and decided this precise issue. See Dimaya v. Lynch, 803 F.3d 1110,
1115 (9th Cir. 2015); United States v. Vivas-Ceja, 808 F.3d 719, 722-23 (7th Cir.
2015). Significantly, both courts held that § 16(b) is unconstitutionally vague
because Johnson compelled the result.4 For the reasons that follow, this Court
should hold the same.
Section 16(b)’s language is constitutionally void for vagueness because of
the very same infirmities the Supreme Court identified in the ACCA’s residual
clause. Like the ACCA’s residual clause, § 16(b) requires courts to determine the
imaginary, “ordinary case” of the offense of conviction and then judge how great a
risk of force that “ordinary case” presents against an imprecise standard. The
Supreme Court declared this analytical process too rife with uncertainty and
2 18 U.S.C. § 16(b) covers an offense 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.” 3 Convictions that qualify as a crime of violence under § 16(b) are defined as
an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) and are cross-referenced in
the domestic violence ground of deportability at 8 U.S.C. § 1227(a)(2)(E)(i). 4 The Sixth Circuit rejected a vagueness challenge to 18 U.S.C. §
924(c)(3)(B), which has near identical language to 18 U.S.C. § 16(b). See United
States v. Taylor, 814 F.3d 340, 376-77 (6th Cir. 2016). Judge White, however,
dissented, finding that § 924(c)(3)(B) “suffers from the same pair of infirmities that
rendered the residual clause unconstitutional.” Id. at 394 (White, J., dissenting).
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conjecture to satisfy due process. Because 18 U.S.C. § 16(b) and the ACCA are
subject to identical unpredictability and arbitrariness, two circuits have held that §
16(b) violates the Due Process Clause of the Fifth Amendment. Dimaya, 803 F.3d
at 1115; Vivas-Ceja, 808 F.3d at 722-23.
The National Immigration Project is a non-profit membership organization
working to defend immigrants’ rights and to secure a fair administration of
immigration laws. The National Immigration Project participated in oral argument
in Dimaya v. Lynch, and argued, on behalf of amici, that § 16(b) is void for
vagueness. Dimaya, 803 F.3d at 1111. ILCM is a Minnesota-based non-profit
organization that engages in advocacy, direct services, education, outreach, and
impact litigation to protect the civil and human rights of noncitizens. The Hennepin
County Public Defender’s Office provides client-centered representation in
criminal cases, and staffs an immigration lawyer to fully vindicate its clients’ Sixth
Amendment rights, including rights under Padilla v. Kentucky, 559 U.S. 356
(2010). ILRC, founded in 1979, is a non-profit national back-up center that
provides technical assistance in advocacy to low-income immigrants and their
advocates. Amici have participated in litigation around the country on the
vagueness of § 16(b) and have a direct interest in ensuring that the rules governing
classification of criminal convictions for immigration purposes give noncitizens
fair notice and comport with due process.
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ARGUMENT
I. Like the ACCA Residual Clause, 18 U.S.C. § 16(b) Is Void for
Vagueness.
On June 26, 2015, the Supreme Court held that the ACCA residual clause
was unconstitutionally vague. Johnson, 135 S. Ct. at 2557. A statute violates due
process if it is either “so vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. at
2256 (citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)). On October 19,
2015, the Ninth Circuit pronounced 18 U.S.C. § 16(b), as incorporated in the
Immigration and Nationality Act (INA), void for vagueness. Dimaya, 803 F.3d at
1111. After “careful analysis,” the Ninth Circuit concluded that Johnson’s
“reasoning applies with equal force to the similar statutory language and identical
mode of analysis” used to define a crime of violence under § 16(b). Id. at 1115.
On December 22, 2015, the Seventh Circuit likewise concluded that because §
16(b) “is materially indistinguishable from the ACCA’s residual clause,” and
“requires the identical indeterminate two-step approach, it too is unconstitutionally
vague.” Vivas-Ceja, 808 F.3d at 722-23.
A. Void for vagueness principles apply to immigration law.
The Supreme Court has long applied the void-for-vagueness doctrine to civil
statutes. See A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925)
(rejecting “attempts to distinguish [prior vagueness] cases because they were
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criminal prosecutions” as an “[in]adequate distinction” because the principle is not
limited “only to criminal prosecutions.”); Keyishian v. Board of Regents of Univ. of
State of N.Y., 385 U.S. 589, 597-604 (1967) (impermissibly vague labor law). This
Court too has upheld a vagueness challenge to a civil statute. See Stephenson v.
Davenport Community School Dist., 110 F.3d 1303 (8th Cir. 1997) (finding school
regulation’s prohibition of gang symbols void for vagueness).
In Jordan v. DeGeorge, the Supreme Court specifically confirmed that
unconstitutionally vague immigration statutes would not be enforceable. 341 U.S.
223, 231 (1951). There, the Court reviewed a vagueness challenge to the crime
involving moral turpitude designation due to “the grave nature of deportation.” Id.
Moreover, in applying this doctrine to18 U.S.C. § 16(b) and finding it to be
unconstitutional, the Ninth Circuit also affirmed that a noncitizen may bring a
vagueness challenge to the definition of a “crime of violence” in the immigration
statute. Dimaya, 803 F.3d at 1114.
Indeed, vague immigration statutes “significantly undermine the interests of
efficiency, fairness, and predictability in the administration of immigration law.”
Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). Such statutes impair a
noncitizen’s ability to “anticipate the immigration consequences of guilty pleas in
criminal court.” Id.; Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (“[A]ccurate
legal advice for noncitizens accused of crimes has never been more important”
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because “deportation is an integral part—indeed, sometimes the most important
part—of the penalty that may be imposed on noncitizen defendants who plead
guilty to specified crimes.”).
Accordingly, in light of the Supreme Court and Eighth Circuit’s controlling
precedent, there can be no doubt that the vagueness doctrine applies here.
B. Section 16(b) suffers from the same (or more significant) defects than
the ACCA’s residual clause.
The Court in Johnson held that the residual clause violated due process
because the inquiry required by its language was both “wide-ranging” and
“indeterminate.” Id. at 2257. Section 16(b) suffers from precisely the same
defects because it is “subject to the same mode of analysis.” Dimaya, 803 F.3d at
1114. Both the residual clause and § 16(b) “are subject to the categorical approach,
which demands that courts ‘look to the elements and the nature of the offense of
conviction, rather than to the particular facts relating to petitioner’s crime.’” Id.
(citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)); see Taylor v. United States, 495
U.S. 575 (1990). And both statutes also require courts to “decide what a usual or
ordinary violation of the statute entails and then determine how great a risk of
injury that ‘ordinary case’ presents.” Dimaya, 803 F.3d at 1115.
In Johnson, the Court singled out two features of ACCA’s residual clause
that “conspire[d] to make it unconstitutionally vague.” Johnson, 135 S. Ct. at 2557.
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In short, one involves the trouble in judicially identifying an “ordinary case,” while
the second involves assessing when the risk posed by that “ordinary case” is
sufficiently “serious.”
First, in order to determine the risk posed by the crime, the residual clause
“requires a court to picture the kind of conduct that the crime involves ‘in the
ordinary case.’” Johnson, 135 S. Ct. at 2557. The Court condemned the ACCA’s
residual clause for asking judges “to imagine how the idealized ordinary case of
the crime plays out.” Id. at 2557-58. To illustrate its point, the Court asked
rhetorically whether the “ordinary instance” of witness tampering involved
“offering a witness a bribe” or instead “threatening a witness with violence.” Id. at
2557. But the residual clause itself offered no “reliable way to choose between . . .
competing accounts of what” constitutes an “ordinary case.” Id. at 2257-58 (“How
does one go about deciding what kind of conduct the ‘ordinary case’ of a crime
involves? ‘A statistical analysis of the state reporter? A survey? Expert evidence?
Google? Gut instinct?’ ” (quoting United States v. Mayer, 560 F.3d 948, 952 (9th
Cir. 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc))). The
Supreme Court thus found that the process of identifying the “ordinary case” rather
than “real-world facts” created “grave uncertainty.” Id. at 2557.
This “indeterminacy” in the residual clause equally presents itself in § 16(b).
Dimaya, 803 F.3d at 1117. Section 16(b), like the residual clause, also requires
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courts to “inquire whether ‘the conduct encompassed by the elements of the
offense, in the ordinary case, presents’ a substantial risk of force.” Id. (citation
omitted). Congress incorporated that approach into § 16(b) by specifying that an
offense “by its nature” must qualify as a crime of violence. See 18 U.S.C. § 16(b);
James v. United States, 550 U.S. 192, 208 (2007) (using “by is nature”
interchangeably with “ordinary case”); see also Vivas-Ceja, 808 F.3d at 722
(finding “by its nature” in § 16(b) “indistinguishable from” residual clause’s
language and requires the same ordinary-case analysis).
The Board of Immigration Appeals (BIA) too has expressly held in
published opinions that the language of § 16(b) requires the ordinary-case inquiry.
See, e.g., Matter of Francisco Alonzo, 26 I&N Dec. 594, 600 (BIA 2015); Matter
of Singh, 25 I&N Dec. 670, 677 (BIA 2012). And the BIA applied that ordinary-
case analysis below in finding that Petitioner’s offense came within § 16(b).
The second feature of the residual clause that Johnson found problematic is
also equally present in Section 16(b). That is, the residual clause left “uncertainty
about how much risk it takes for a crime to qualify as a violent felony”—i.e., it
lacks a meaningful gauge for determining when the “ordinary case” of a particular
statute reaches the ACCA threshold of posing a “serious potential risk of physical
injury.” Johnson, 135 S. Ct. at 2558. The ACCA’s violent felony definition
requires judges to apply “an imprecise ‘serious potential risk’ standard ... to [the]
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judge-imagined abstraction” of a crime in the “ordinary case.” Id.
The same is “equally true” of § 16(b)’s nebulous “substantial risk” of force
standard. Dimaya, 803 F.3d at 1117. “Just like the residual clause, § 16(b) offers
courts no guidance to determine when the risk involved in the ordinary case of a
crime qualifies as ‘substantial.’” Vivas-Ceja, 808 F.3d at 722-23.
Indeed, a court cannot even reach the stage of assessing the degree of risk
entailed in the “ordinary case” of a predicate offense if it is unable to determine the
“ordinary case” in the first instance. Accordingly, the Ninth and Seventh Circuits
found that Johnson’s “holding with respect to the imprecision of the serious
potential risk standard is also clearly applicable to § 16(b).” Dimaya, 803 F.3d at
1117. See Vivas-Ceja, 808 F.3d at 722-23.
By combining these two indeterminate inquiries, the Supreme Court held,
“the residual clause produces more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Johnson, 135 S. Ct. at 2558. Likewise, § 16(b),
combines “indeterminacy about how to measure the risk posed by a crime with
indeterminacy about how much risk it takes for the crime to qualify as” a crime of
violence. Dimaya, 803 F.3d at 1117. Together, under Johnson, “these uncertainties
render § 16(b) unconstitutionally vague.” Id. at 1120.
The government may suggest that the Court should not invalidate § 16(b) by
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implication. 5 The vagueness of § 16(b), however, is not by implication, but flows
inexorably from Johnson for the reasons discussed above. And this Court has
found that a panel of this Circuit can overrule a prior decision “when the earlier
panel decision is cast into doubt by a decision of the Supreme Court.” United
States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008). Indeed, in applying this test,
this Court found that a Supreme Court decision finding that federal law authorized
the state regulation of Indian liquor transactions was intervening and undermined
Circuit law on the separate question of whether Congress delegated to tribes the
authority to regulate liquor traffic on fee lands owned by non-Indians in non-Indian
communities within reservations. See City of Timber Lake v. Cheyenne River Sioux
5 In Judge Callahan’s dissent in Dimaya, she also argued that Johnson could
not have intended to call § 16(b) in question because it “did not even mention
Leocal v. Ashcroft, 543 U.S. 1.” Dimaya, 803 F.3d at 1120 (Callahan, J.,
dissenting). Her argument fails for two reasons. First, whether § 16(b) is void for
vagueness was not before the Court, which will generally only consider questions
set out in the petition. See Turner. v. Rogers, 131 S. Ct. 2507, 2525 (2011) (citing
Supreme Court Rule 14.1(a)). Second, Johnson overruled James, 550 U.S. 192,
and Sykes v. United States, 564 U.S. 1 (2011), because both had “rejected a
dissenting opinion’s claim” that the residual clause is void for vagueness. Johnson,
135 S. Ct. at 2562. Johnson, however, did not overrule the other residual clause
cases, Chambers v. United States, 555 U.S. 122 (2009), and Begay v. United
States, 553 U.S. 137 (2008), where the vagueness of the statute was not addressed
and the offense at issue did not satisfy the residual clause. Likewise, the Court in
Johnson would have had no reason to overrule Leocal, as Leocal said nothing
about whether the statutory language in § 16(b) is void for vagueness. See Brecht
v. Abrahamson, 507 U.S. 619, 630-31 (1993) (finding that stare decisis is not
applicable unless the issue was “squarely addressed” in the prior decision). All the
Court in Leocal resolved was that the offense at issue did not satisfy § 16(b). 543
U.S. at 10.
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Tribe, 10 F.3d 554, 557 (8th Cir.1993).
C. Any attempt by the Government to distinguish Section 16(b) from
the residual clause fails.
1. The list of enumerated offenses preceding ACCA’s residual clause was
not material to the Supreme Court’s decision in Johnson.
The Government may argue that the residual clause contains a key
distinction—that it “forces courts to interpret ‘serious potential risk’ in light of the
four prefatory enumerated crimes—burglary, arson, extortion, and crimes
involving the use of explosives.” Johnson, 135 S. Ct. at 2558. But this distinction
is not only irrelevant but in fact renders § 16(b) more vague for two reasons.
First, Johnson made clear that it was the two indeterminacies —rather than
the enumerated offenses—that rendered the statute void for vagueness. See Vivas-
Ceja, 808 F.3d at 723 (“The list [of enumerated offenses] itself wasn’t one of the
‘two features’ that combined to make the clause unconstitutionally vague.”). It is
true that in dismissing the government’s argument about invalidating similar laws,
the Supreme Court initially cited the ACCA’s four enumerated offenses as adding
to the uncertainty. See Johnson, 135 S. Ct. at 2561. But the Supreme Court then
made clear that the unworkability of “ordinary case” was really the central
distinguishing feature: “More importantly, almost all of the cited laws require
gauging the riskiness of conduct in which an individual engages on a particular
occasion […] The residual clause, however, requires application of the ‘serious
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potential risk’ standard to an idealized ordinary case of the crime.” Id. (emphasis
added). Johnson therefore found the residual clause impermissibly vague “for the
reasons stated in reaching its decision, and not because of the clause’s relation to
the four listed offenses.” Dimaya, 803 F.3d at 1118.
Moreover, as the Supreme Court recognized, the prefatory examples bear
only on the determination of “how much risk it takes for a crime to qualify as a
violent felony.” Johnson, 135 S. Ct. at 2558. But a lower court must first construct
the idealized ordinary case of the predicate offense before it can even begin to
evaluate the level of risk presented by that offense. Id. at 2557. Because courts
cannot answer the threshold question of what is the ordinary case with any
certainty, they cannot proceed with its risk analysis—enumerated offenses or not.
And nothing (including the lack of enumerated offenses) cures this fundamental
defect.
If anything, the absence of enumerated offenses makes § 16(b) “more
vague” than the residual clause, not less. Dimaya, 803 F.3d at 1118 n.13. The
enumerated offenses in ACCA at least offer “some guidance” for quantifying risk,
even though that benchmark did not rescue the ACCA. Id.(emphasis in original).
Section 16(b), by contrast, lacks any point of comparison. In other words, if a
statute providing guiding examples of the necessary risk is too ambiguous to pass
constitutional scrutiny, a similar statute that provides no such examples can only
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be, if anything, “more vague.”
2. Any minor difference in the statutes’ reach is immaterial.
The Ninth and Seventh Circuits rejected the argument that the two statutes
are materially different because the ACCA residual clause, unlike § 16(b), speaks
to the risk that would arise after completion of the offense.
First, the Ninth Circuit expressed “doubt that this phrase actually creates a
distinction between the two clauses.” Dimaya, 803 F.3d at 1118. As an example,
the Court noted that California’s burglary statute has widely been found a crime of
violence under § 16(b) “because of the risk that violence will ensue after the
defendant has committed the acts necessary to constitute the offense,” not in the
course of the crime. Id. (emphasis added).
Second and more importantly, “even if such a distinction did exist,” section
16(b) still suffers from the double-barreled uncertainty set out above – as to the
ordinary case and risk – making it unconstitutionally vague. Dimaya, 803 F.3d at
1118. Any distinction here cannot change that.
3. Section 16(b) is as confusing as the ACCA’s residual clause.
The Government may also argue that § 16(b) has not generated the same
degree of confusion among courts as the ACCA’s residual clause. But cases
addressing § 16(b) regularly rely on ACCA cases, and vice-versa. Courts use the
same body of precedent. See Section I.C.4, infra. Thus, controversy surrounding
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the ACCA necessarily reflects difficulties with § 16(b), even absent the same
explicit chorus of criticism. And confusion about the meaning of § 16(b) is
subsumed in the confusion surrounding the ACCA.
In addition, though Johnson stated that courts’ inability to establish a
workable standard “can provide evidence of vagueness,” it never said the
opposite—that a “lack of judicial disharmony” precludes a finding of vagueness.
135 S. Ct. at 2558. See Vivas-Ceja, 808 F.3d at 723 (“The chaotic state of the
caselaw was not a necessary condition to the Court’s vagueness determination.”);
Dimaya, 803 F.3d at 1119 (“That the Supreme Court has decided more residual
clause cases than §16(b) cases … does not indicate that it believes the latter clause
to be any more capable of consistent application.”).
4. Courts have long treated the Residual Clause and Section 16(b) as
functional equivalents.
Any other attempt by the Government to distinguish § 16(b) from the
residual clause also fails because courts have long treated the two provisions as
virtually interchangeable for all relevant purposes here. Prior to Johnson, the
Supreme Court frequently cited its decision in Leocal v. Ashcroft, 543 U.S. 1
(2004)—a § 16(b) case—when discussing ACCA residual clause cases. See Begay,
553 U.S. at 145 (2008) (citing Leocal three times to discuss risk-based analysis);
James, 550 U.S. at 216, 219, 224 (Scalia, J., dissenting). See also Chambers, 555
U.S. at 133 n.2 (Alito and Thomas, JJ., concurring) (citing cases under § 16(b) in
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ACCA case).
Moreover, this Court has also relied on ACCA’s residual clause cases in
applying § 16(b), and vice-versa. See, e.g., Roberts v. Holder, 745 F.3d 928, 930
(8th Cir. 2014) (observing that the two definitions are “virtually identical”); United
States v. Walker, 452 F.3d 723, 726 (8th Cir. 2006) (relying on § 16(b) cases to
find that sex offense poses “a serious potential risk of physical injury” despite
minor differences in the two definitions).
Other courts and the BIA have also treated § 16(b) and the ACCA’s residual
clause as functional equivalents. See, e.g., Jimenez-Gonzalez v. Mukasey, 548 F.3d
557, 562 (7th Cir. 2008) (explaining that the analysis of ACCA residual clause
“perfectly mirrored” that of § 16(b)); United States v. Sanchez-Ledezma, 630 F.3d
447, 448 (5th Cir. 2011) (noting that “logic” and “reasoning” of ACCA case
governed court’s analysis under § 16(b)); United States v. Gomez-Leon, 545 F.3d
777, 788 (9th Cir. 2008) (stating its doubt whether “any meaningful difference”
between the ACCA and § 16(b) remained); United States v. Coronado-Cervantes,
154 F.3d 1242, 1244 (10th Cir. 1998). See also Matter of Singh, 25 I&N Dec. 670,
677 (finding that “rationale” of ACCA case governed its analysis under § 16(b)).
Because the Supreme Court and the Courts of Appeals recognize that the
same flaws that led Johnson to strike down the residual clause are present in §
16(b), it too is void for vagueness.
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II. This Court Should Find Section 16(b) Unconstitutional Because It Is
a Facially Vague Statute.
Like the ACCA’s residual clause, Section 16(b) cannot be saved because it
is facially vague. Also, like the residual clause, the statutory language of § 16(b)
requires the application of the wide-ranging and indeterminate “ordinary case”
inquiry. Congress incorporated that approach into § 16(b) by specifying that an
offense “by its nature” must qualify as a crime of violence. See 18 U.S.C. § 16(b);
James, 550 U.S. at 208 (using “by is nature” interchangeably with “ordinary
case”). Because that requirement comes from the statute itself, § 16(b) is incapable
of repair. See United States v. Reese, 92 U.S. 214, 219-21 (1876) (finding that a
statute that is facially unconstitutional cannot be saved by a judicial rewrite of the
statute). In fact, Justice Alito, in his dissent, insisted that the Court construe the
ACCA in a way to avoid the constitutional problem. Johnson, 135 S. Ct. at 2578
(Alito, J., dissenting). But the Court found no permissible way to repair the
residual clause, and instead struck the statute because no other possible
interpretation existed. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Further,
because the BIA does not have the authority to declare a statute unconstitutional,
this issue cannot be remanded. See, e.g., Matter of Fitzpatrick, 26 I&N Dec. 559,
562 (BIA 2015); Matter of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997).
Since § 16(b) is not materially different from the residual clause, is fraught with
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the same fundamental flaws, and no permissible constitutional interpretation of it
exists, it should be struck for the same reasons as the residual clause.
CONCLUSION
For the foregoing reasons, amici urge this Court to find that a crime of
violence as defined in 18 U.S.C. § 16(b) is void for vagueness.
Respectfully submitted,
/s/ Sejal Zota
Sejal Zota
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727, Ext. 108
sejal@nipnlg.org
Attorney for Amici Curiae
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 29(d), I hereby certify that the attached amicus
brief is proportionately spaced, has a typeface of 14 points and, according to
computerized count, contains 4046 words. The attached amicus brief complies
with Local Rule 28A(h) because it has been scanned for viruses and is virus free.
Dated: June 2, 2016 s/Sejal Zota
Sejal Zota
Counsel for Amici Curiae
National Immigration Project of
the National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727, Ext. 108
sejal@nipnlg.org
Appellate Case: 16-1428 Page: 24 Date Filed: 06/02/2016 Entry ID: 4406947 RESTRICTED
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CERTIFICATE OF SERVICE
When All Case Participants are Registered
for the Appellate CM/ECF System
U.S. Court of Appeals Docket No. 16-1428
I, Sejal Zota, hereby certify that I electronically filed the foregoing with the Clerk
of the Court for the United States Court of Appeals for the Eighth Circuit by using
the appellate CM/ECF system on June 2, 2016.
I certify that all participants in the case (who are listed below) are registered
CM/ECF users and that service will be accomplished by the appellate CM/ECF
system.
Date: June 2, 2016 /s/ Sejal Zota
Sejal Zota
National Immigration Project of the
National Lawyers Guild
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United States Court of Appeals For The Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Michael E. Gans Clerk of Court
VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov June 02, 2016 Mr. Sejal Zota NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD Suite 602 14 Beacon Street Boston, MA 02108 RE: 16-1428 Kong Meng Xiong v. Loretta E. Lynch Dear Counsel: The amici curiae brief of National Immigration Project of the National Lawyers Guild, et al. was filed today. Please complete and file an Appearance form. You can access the Appearance Form at www.ca8.uscourts.gov/all-forms. Please note that Federal Rule of Appellate Procedure 29(g) provides that amci may only present oral argument by leave of court. If you wish to present oral argument, you need to submit a motion. Please note that if permission to present oral argument is granted, the court's usual practice is that the time granted to the amicus will be deducted from the time allotted to the party the amicus supports. You may wish to discuss this with the other attorneys before you submit your motion. Michael E. Gans Clerk of Court LMT Enclosure(s) cc: Nadia Anguiano-Wehde Mr. Scott Baniecke Mr. Jesse Matthew Bless Mr. John Bruning Mr. Benjamin Richard Casper Ms. Julia Lee Decker Ms. Karen Yolanda Drummond Mr. Carl H. McIntyre Charles Barrera Moore Mr. Anthony Cardozo Payne Ms. Kathleen Kelly Volkert
Appellate Case: 16-1428 Page: 1 Date Filed: 06/02/2016 Entry ID: 4406947 RESTRICTED
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