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Crimmigration and the Void for Vagueness Doctrine

57 Pages Posted: 3 Oct 2016 Last revised: 25 Jan 2017

Jennifer Lee Koh

Western State College of Law

Date Written: October 1, 2016

Abstract

Since the Supreme Court’s 2015 decision in Johnson v. United States, a federal sentencing decision holding that the residual clause of the Armed Career Criminal Act was void for vagueness, the vagueness doctrine has quietly and quickly exploded in the legal landscape governing the immigration consequences of crime. On September 29, 2016, the Supreme Court granted certiorari in Lynch v. Dimaya, an immigration case in which the Court will resolve a circuit split addressing whether part of the federal definition of a “crime of violence” — a classification that triggers nearly automatic deportation and immigration detention — is unconstitutionally vague.

This Article argues in favor of applying the void for vagueness doctrine to various statutory provisions that lie at the crossroads of immigration and criminal law, including the provision before the Court in Dimaya. The vision of vagueness articulated in this Article complements the Supreme Court’s recent jurisprudence with respect to the categorical approach, the methodology for assessing the immigration consequences of crime, and is consistent with the Court’s decision in Johnson as well as the values animating the vagueness doctrine. Those twin values — providing reasonable notice, and preventing arbitrary or discriminatory law enforcement practices — apply with exceptional force in immigration, an area of law in which the liberty stakes of the crime-based removal grounds are high, notice is critical, and the risk of arbitrariness and discrimination by government actors at multiple levels is acute.

Keywords: void for vagueness, crimmigration, immigration, due process, deportation, sentencing, residual clause, Armed Career Criminal Act, crimes of violence, aggravated felony, removal, moral turpitude, constitutional avoidance, categorical approach

Suggested Citation

Koh, Jennifer Lee, Crimmigration and the Void for Vagueness Doctrine (October 1, 2016). 2016 Wisconsin Law Review 1127 (2016). Available at SSRN: https://ssrn.com/abstract=2846572

Jennifer Lee Koh (Contact Author)

Western State College of Law ( email )

1 Banting
Irvine, CA 92618

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