Thread: Deportation law targeting some felons struck down

Deportation law targeting some felons struck down

By Bob Egelko
Published 4:34 pm, Monday, October 19, 2015

A federal appeals court declared unconstitutional Monday a widely used law requiring deportation of noncitizens who are convicted of felonies that posed a “substantial risk” of violence, even if the victim was not injured.

The law, signed by President Bill Clinton in 1996, fails to define “substantial” risk or give judges adequate guidance on which crimes qualify for automatic deportation, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling.

The court relied on a U.S. Supreme Court ruling in June that found another federal law unconstitutionally vague: a section of the Armed Career Criminal Act that required a 15-year prison sentence for a felon who possesses a gun and has three previous convictions for felonies that posed a “serious potential risk” of violence.

The ruling, if it stands, will affect thousands of immigrants, most of them legal U.S. residents, said Andrew Knapp, a Southwestern University law professor who represented James Dimaya of Hayward. Dimaya, who emigrated legally from the Philippines in 1992, was convicted of first-degree residential burglaries in 2007 and 2009, was sentenced to two years on each charge, and was ordered deported after his release. Knapp said immigration judges kept him locked up for nearly five years before he was released on bond in March.

“We’ve pursued this course of mass incarceration and deportation that’s unsustainable,” Knapp said. “There has to be a recognition that individuals should be considered on a case-by-case basis,” as they were before the 1996 law, he said.

The Justice Department did not respond to a request for comment. The government could ask the full appeals court for a rehearing or appeal to the Supreme Court. Congress could also rewrite the law, as it did after the June ruling on the gun law.

Monday’s decision does not affect sections of the law that require deportation of noncitizens for specified felonies, a list that includes murder, rape, drug trafficking, some gun crimes and large-scale fraud. It also does not protect immigrants who are in the United States illegally and can be deported whenever they are apprehended, although San Francisco and other cities with sanctuary laws that arrest such immigrants will notify immigration officers only if the charges are serious.

The court, instead, focused on a provision of the 1996 law that requires deportation for noncitizens, including legal residents, who are convicted of “aggravated felonies” — those involving “a substantial risk” that force “may be used” against another person or someone else’s property.

Like the law that the Supreme Court struck down in June, the deportation law fails to define clearly “what constitutes a substantial enough risk of force,” said Judge Stephen Reinhardt in the majority opinion.

Though home burglaries may create a risk of violence, Reinhardt said, a 2010 government study found that only 7 percent of burglaries nationwide resulted in violence. He said the law requires immigration judges to speculate about whether the typical burglary creates a substantial risk of violence.

Knapp said no one was injured in Dimaya’s two burglaries, which took place at a garage and an uninhabited house.

In dissent, Judge Consuelo Callahan said the Supreme Court and the Ninth Circuit, in earlier cases, have both described burglary as potentially violent.

“Any person intent on committing a burglary inherently contemplates the risk of using force should his nefarious schemes be detected,” Callahan said. “I fear that we have again ventured where no court has gone before and that the Supreme Court will have to intervene to return us to our proper orbit.”

http://www.sfgate.com/nation/article...wn-6578324.php

9th Circuit of course. Immigration advocates always find their sweet spot, unless countered by conservatives in the right jurisdictions.