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Immigration Law

CA6 on Crime of Violence, Void for Vagueness - Shuti v. Lynch

Shuti v. Lynch, July 7, 2016- "In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held the Armed Career Criminal Act’s residual definition of “violent felony” void for vagueness. 18 U.S.C. § 924(e)(2)(B)(ii). In this case, we consider whether that pathmarking decision applies to the Immigration and Nationality Act’s parallel definition of “crime of violence,” a phrase that encompasses any 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.” 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b). We conclude that the wide-ranging inquiry required by these two statutory phrases are one and the same, and therefore hold that the immigration code’s residual clause is likewise unconstitutionally vague. ... If the residual clause cannot be applied in a “principled and objective” manner by judges, see Johnson, 135 S. Ct. at 2558, we fail to see how non-citizens and their counsel will be able to anticipate the immigration consequences of criminal convictions, see Mellouli, 135 S. Ct. at 1987; Padilla, 559 U.S. at 366. Shuti is set to begin “a life sentence of exile from what has [been his] home” since age 13, deprived of his “established means of livelihood,” and separated from “his family of American citizens.” See Jordan, 341 U.S. at 243 (Jackson, J., dissenting). Before imposing this penalty, the Due Process Clause requires more definite standards. We therefore find the INA’s residual definition of “crime of violence,” 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b), void for vagueness. The petition for review is granted, the order of removal is vacated, and the case is remanded to the BIA for further proceedings consistent with this opinion."  [Hats off to Russell Abrutyn!]