WASHINGTON, D.C. — The Department of Justice and a lawyer representing an immigrant from the Philippines faced off in front of the Supreme Court Monday as the newest justice on the bench, Neil Gorsuch, grilled them with such pointed questions that the audience started laughing.
In the second case of the new term, the justices will have to decide whether to keep or do away with a criminal law that’s responsible for the deportation of thousands of immigrants every year. Immigrants rights groups and defense attorneys argue it’s too vague. The Department of Justice, on the other hand, says it’s just fine.
The case is Sessions v. Dimaya, originally brought by James Garcia Dimaya, a lawful permanent resident from the Philippines who was issued a removal order because of two burglary convictions in California that the immigration judge considered “aggravated felonies,” requiring automatic deportation under federal immigration law.
Neither of Dimaya’s burglaries were violent, so he sued the federal government in 2011 arguing that the definition of “aggravated felony” as a “crime of violence” was unconstitutionally vague. The 9th Circuit Court of Appeals agreed with him, canceled his removal order, and stopped using the standard entirely.
Last year alone, more than 3,500 people were deported because they committed an ”aggravated felony,” but exactly which crimes fall into that category, and which don’t, is hotly debated in immigration courts across the country every day. Does a burglary of a vacant building count as a crime of violence? What about extortion or an attempted kidnapping that never actually happened?
Justice Gorsuch had lengthy questions for both sides about why immigration judges should make the call about which crimes count and which don’t. His vigor came as a surprise because he’d been completely silent, with his head resting on his hand, for the entire first case argued Monday morning.
“That seems to me a tough line here to draw,” he said. “When the law runs out and the judges cannot say what the law is, they don’t make it up. Right? Why isn’t that a legislative function?”
Gorsuch, who repeatedly interrupted both lawyers in his questions about separation of powers, drew laughs from the audience.
Dimaya’s lawyer, Joshua Rosenkranz, asked the court consider the permanence of deportation in making its decision — a notion Gorsuch appeared to share, calling the consequences “grave.”
“Lifetime banishment should not hang on the unpredictable answer to the question, Is this crime in or is it out? ’” Rosenkranz said.
Jesse Lloyd, an immigration attorney in Oakland, California, said the confusion surrounding the “aggravated felony” standard made his job extremely difficult until the 9th Circuit ruling.
“Say I have a client who is a green card holder who is offered a plea for unarmed robbery and their number one thing is that they don’t want to get deported,” he explained. “I have to guess what the immigration judge down the road is going to say. The person can’t know the immigration consequences of the plea deal at the time they take it.”
Lloyd says he worries that if the Supreme Court upholds the law, hundreds of his clients who have pleaded guilty to crimes could now be vulnerable to deportation.
“People when they’re pleading to criminal convictions, immigration is usually the paramount concern,” he said “Aggravated felonies have such severe immigration penalties, not having a clear idea of if something is an aggravated felony is a huge problem.”