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Immigration Law

CA10 on 16(b) Crime of Violence: Golicov v. Lynch (DOJ's position 'baffling')

Golicov v. Lynch, Sept. 19, 2016 - "Petitioner Constantine Fedor Golicov, a lawful permanent resident of the United States, seeks review of an order of the Board of Immigration Appeals (BIA) concluding that his Utah state conviction for failing to stop at a police officer’s command renders him removable under the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii). That provision of the INA requires the removal of “[a]ny alien who is convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines the term “aggravated felony” to include “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Golicov argues, as he did before the BIA, that the INA’s definition of “crime of violence,” which expressly incorporates 18 U.S.C. § 16(b)’s definition of “crime of violence,” is unconstitutionally vague. In support, he points to the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Court held that the Armed Career Criminal Act’s residual definition of the term “violent felony,” 18 U.S.C. § 924(e)(2)(B), was void for vagueness.

Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we agree with Golicov, grant his petition for review, vacate the order of removal, and remand the case to the BIA for further proceedings consistent with this opinion.

... [L]ike the Ninth Circuit, which also addressed the same argument in the context of a vagueness challenge to 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), we find the government’s argument “baffling.” Dimaya v. Lynch, 803 F.3d 1110, 1113 (9th Cir. 2015).

... [W]e agree with the Sixth, Seventh, and Ninth Circuits that 18 U.S.C. § 16(b) is not meaningfully distinguishable from the ACCA’s residual clause and that, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(F), must be deemed unconstitutionally vague in light of Johnson."

[Hats off to Skyler Anderson!]