“crime of violence” aggravated felony litigation the ... · “crime of violence” aggravated...

“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.

James H. Binger Center for New Americans - 2017 CLE Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9

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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


page 19

23

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


page 20

24

“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).


page 21

25

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


page 22

26

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).


page 23

27

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


page 24

28

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.


page 25

29

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.”).


page 26

30

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).


page 27

31

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


page 28

32

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


page 29

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

[email protected]

Counsel for Amici Curiae

Appellate Case: 16-1428 Page: 1 Date Filed: 06/02/2016 Entry ID: 4406947 RESTRICTED

1 of 27James H. Binger Center for New Americans - 2017 CLE

Federal Immigration Litigation - CRIME OF VIOLENCE LITIGATION - PP slide 9page 30

i

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.




ii

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




iii

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




iv

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




v

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




1

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).




2

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).




3

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.




4

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




5

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”




6

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.




7

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




8

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]




9

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




10

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.




11

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




12

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




13

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




14

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




15

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.




16

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




17

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




Boston, MA 02108

(617) 227-9727, Ext. 108

[email protected]

Attorney for Amici Curiae




18

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


Boston, MA 02108

(617) 227-9727, Ext. 108

[email protected]




19

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






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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




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