Thread: Exclusive — Former Immigration Judge on Gorsuch Ruling: ‘Very Dangerous Aliens’ Are ‘

Exclusive — Former Immigration Judge on Gorsuch Ruling: ‘Very Dangerous Aliens’ Are ‘Not Going to Be Removable Because of This Decision’


April 18, 2018

Robert Kraychik





Former immigration judge, Andrew R. Arthur, joined SiriusXM hosts Rebecca Mansour and Joel Pollak on Tuesday’s Breitbart News Tonight, describing the Supreme Court decision in Sessions v. Dimaya as endangering Americans by restricting the federal government’s capacity to remove aliens convicted of “crimes of violence.”

LISTEN:


https://soundcloud.com/breitbart/breitbart-news-tonight-andrew-art-arthur-april-17-2018


Arthur, currently a resident fellow in law and policy for the Center for Immigration Studies, said, “I think the biggest problem with this decision is it’s the sort of decision that only people who think too much and know too little actually do, and I don’t want to criticize Justice Gorsuch or Justice Kagan, but, again, it’s a very theoretical decision that doesn’t actually have anything to do with the way that this statute is applied in the real world.”


Arthur agreed with Chief Justice John Roberts’ dissent. He said, “Justice Roberts, on the other hand, in his dissent actually explains how it’s applied in the real world and explains how it’s not really that difficult of a statute to apply and how it’s not really that vague. As Justice Roberts noted, there are some serious implications to this decision. There are a lot of very dangerous aliens who are not going to be removable because of this decision, plus the crime of violence definition … applies in a bunch of different criminal statutes, and each one of those is going to be very adversely affected by the court’s decision. Again, we can’t allow that to get in the way of a constitutional analysis if a provision is plainly constitutionally invalid, but, again, I concur with Justice Roberts: it’s not, and it should have been allowed to stand, but the court didn’t see it that way.”


Arthur highlighted the bone of contention between the Supreme Court’s majority and dissenting opinions. He stated, “Under the immigration laws, we define certain things as aggravated felonies; they have very serious consequences: you’re not eligible for certain forms of relief, including asylum, cancellation, and removal. Plus, you’re removable from the United States. One of the subsections of the aggravated felony definition is for crimes of violence, and it defines a crime of violence [in] 18 U.S.C. 16.


Arthur explained 18 U.S.C. 16’s definition of “crime of violence.” He said, “At issue in the case was 18 U.S.C. 16 subsection (b), which defines a ‘crime of violence’ as any other offense that is a felony and by its nature involves a substantial risk of physical force against the person or property of another in the course of committing the offense. Now, the typical case in which we think of this is burglary. When you break into somebody’s house, you do it with the possibility that that person will be home, that they’ll be armed, that you’ll be armed, or that you’ll actually have to use force against that individual, but force will actually have to be used in the commission of the


He continued, “Kidnapping is another one, a very common crime in which the ‘crime of violence standard’ is used, but the Supreme Court said today that this particular provision — 18 U.S.C. 16 subsection (b) that I just read — is void for vagueness. It’s too vague to be applied, notwithstanding the fact that the Supreme Court actually applied it in a case called [Leocal v. Ashcroft]. So it is a little odd.”

Arthur said, “[James Dimaya] is a fellow who committed two burglaries. This isn’t a guy who drunk drove a couple of times or wrote bad checks. These are serious crimes, and these are crimes that actually have an effect on the community. For the courts to issue a decision like this, such a sweeping decision, was a little bit of a surprise."


Arthur assessed Gorsuch’s underlying motivations for his decision to join Justices Breyer, Ginsburg, Kagan, and Sotomayor’s majority ruling. He remarked, “One thing about Justice Gorsuch’s concurrence in this case [is] … his strong belief in civil liberties definitely comes through because his concurrence almost completely addresses the issue of the constitutional protections that individuals have against government action, including vague statutes that can be interpreted and abused by courts and prosecutors and police. So I think that was really the driving motivation behind [his concurrence], not the idea that … the aliens who commit crimes like this should be allowed back on the street.”

Arthur added, “Even though it’s a decision that goes against the rule of law and one that, I think, reaches the wrong decision, [Gorsuch] makes some very strong statements in favor of civil liberties. Here’s a quote: ‘Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.’ It reminds me of Marbury v. Madison, where Justice Marshall ruled against what his interests were, but in doing so, established some very strong principles that actually carried forward his ideas. I think we’re going to see a lot of good come out of Gorsuch’s concurrence. Unfortunately, in the short term, a lot of bad’s going to come out of it.”

Arthur advised Congress to pass legislation with more specificity in defining a “crime of violence.” He said, “[Congress] will have to put in some sort of fix for this hole in the law for these dangerous individuals who are going to be released or not removed because of this. We keep hearing Democrats saying, ‘Deport criminals. Don’t break up families.’ If you want to deport criminals, here’s your opportunity. Here’s a good, strong bill that is going to allow you to deport burglars and kidnappers and individuals who engage in assault. Sign onto it. Put your money where your mouth is.”

Arthur said, “Burglary, indecent assault and battery, stalking, and manslaughter: those are four pretty serious crimes. The idea that you can be a lawful permanent resident, commit one of these crimes, commit several of these crimes, and be allowed to continue to live among us, that’s a serious problem. In the short run, until this gets fixed, those individuals are going to be allowed to remain in the United States and stalk and burglarize and engage in assaults and batteries until this can be resolved.”




http://www.breitbart.com/radio/2018/...ause-decision/

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https://www.alipac.us/f9/gorsuch%92s-pro-illegal-immigrant-ruling-roils-confirmation-debate-345147/

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5-4: Gorsuch Sides With Court’s Liberals In, Er, Deportation Case

ALLAHPUNDITPosted at 2:01 pm on April 17, 2018



Needless to say, Trump’s rage-tweeting about this is going to be — mwah — magnifique. The odds of the him starting a #buyersremorse hashtag can’t be worse than 50/50, or maybe just a one-word tweet: “SOUTER!”

The good news for liberals is that they just pantsed POTUS with a decisive vote from his handpicked appointee on an immigration case, of all things. The bad news? The next appointee is now all but guaranteed to be Michael Cohen.

The case, Sessions v. Dimaya, involves a legal immigrant who came to the U.S. years ago. As an adult he was twice convicted of burglary. Federal law permits deportation of legal immigrants if they’re convicted of an “aggravated felony,” one type of which is a “crime of violence.” The Obama and Trump administrations both claimed that burglary can be categorized as a crime of violence because of the way the statute is worded: Any crime which “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” is a crime of violence, whether or not physical force was actually used. In deciding whether a crime “by its nature” is a crime of violence, courts are supposed to consider what the “ordinary case” involving that crime might look like. The Court’s four liberals found that unconstitutionally vague, the Court’s four conservatives said nope. Neil Gorsuch, tiebreaker, threw in with the liberals. What does “substantial risk” mean, he asked in his concurrence? And what would qualify as an “ordinary case” of burglary?

Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

There’s a wrinkle here. Three years ago, in United States v. Johnson, the Supremes considered a similarly worded statute. In that case it was the Armed Career Criminal Act. If you were convicted of three prior “violent felonies” under that law, you got extra prison time. There, as here, in considering whether a felony was “violent,” courts were supposed to look at the hypothetical “ordinary case” involving that crime rather than the actual facts of the case in front of them and to decide if that ordinary case involved a serious potential risk of physical injury. Six justices concluded that that statute was unconstitutionally vague as well: The four liberals, John Roberts, and — ta da — Antonin Scalia, who wrote the majority opinion. Elena Kagan, who wrote today’s majority opinion, pointed back at Scalia’s opinion in Johnson and called the two cases effectively indistinguishable. If the law in Johnson was too vague for due-process purposes, the law in the Dimaya case is too vague also. Civil libertarians were also eager to point back to Scalia’s Johnson opinion, knowing that Gorsuch is destined to eat huge amounts of crap from the right for voting with the liberals in a deportation case:

Ilya Shapiro
✔@ishapiro

Scalia would’ve done the same. Very textualist, Constitution-protects-us-from-government-overreach opinion. https://twitter.com/reason/status/986262516786388993 …
11:21 AM - Apr 17, 2018 · Washington, DC

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Can’t call Gorsuch a RINO sellout for agreeing with conservatives’ favorite justice! But wait a sec. The Johnson case was about a citizen losing his liberty due to a vague criminal statute. The Dimaya case is about an immigration losing his right to remain in the United States due to a vague civil statute. Since the stakes are lower in civil matters, and since the federal government has discretion in setting rules for immigrants if they want to stay here, surely the feds deserve more leeway in interpreting vague statutory language here than they had in Johnson. Gorsuch responded to that:



A few pages later he even one-upped the Court’s liberals with this passage about due process in civil matters:


Gorsuch did make two concessions to the right, though. First, he noted, Dimaya was a legal immigrant. Once he was granted legal status, he was entitled to certain rights like due process. But that doesn’t mean that Congress *had* to grant him legal status. The legislature still enjoys the power to limit immigration. And presumably it also doesn’t mean that illegal immigrants would necessarily be entitled to all of the same due-process protections as legal immigrants. (You wouldn’t need to cite a “crime of violence” to deport an illegal, after all.) Second, all he’s ultimately saying here is that the law as written is too vague. Immigrants need more clarity about what does and doesn’t count as a deportable offense as a matter of basic notice. But that doesn’t mean Congress couldn’t write an even stricter law, declaring that any and all burglary convictions are grounds for deportation. Congress has to be clear, it doesn’t have to be “soft.”

None of that’s going to matter, though, in terms of popular perceptions of Gorsuch’s vote. Most righties believe as a basic matter that immigrants, particularly illegal immigrants, receive more legal protections than they’re constitutionally owed. Sovereignty means something, or it should. If the feds want to interpret “crime of violence” for deportation purposes to include non-violent burglaries they should get the benefit of the doubt in a contest with a non-citizen, particularly a non-citizen who’s twice been convicted of a serious felony. I don’t know that Gorsuch would disagree; he may be willing to give the feds some extra benefit of the doubt vis-a-vis immigrants, just not as much as they insist on. But a bottom-line kind of guy like Trump won’t care about that. He is, as has been said many times in many contexts, a “transactional” person. His transaction with Gorsuch, or so he surely believed, was that Trump would put him on the Court and Gorsuch would protect Trump’s core priorities in return. An embarrassing unfavorable ruling on immigration will hit POTUS where he lives, especially when he’s already disgusted with so many of his other legal appointees for not doing more to carry out his wishes.

https://hotair.com/archives/2018/04/...tm_campaign=nl

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Video - Congressman Mike McCaul

http://insider.foxnews.com/2018/04/1...-mccaul-reacts

The Supreme Court just handed the Trump administration a loss on immigration — and Gorsuch was the tiebreaking vote

April 17, 2018

AP


The Supreme Court on Tuesday ruled that part of a federal law that makes it easier to deport immigrants convicted of crimes is too vague.

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WASHINGTON — The Supreme Court said Tuesday that part of a federal law that makes it easier to deport immigrants who have been convicted of crimes is too vague to be enforced.

The court's 5-4 decision — an unusual alignment in which new Justice Neil Gorsuch joined the four liberal justices — concerns a catchall provision of immigration law that defines what makes a crime violent. Conviction for a crime of violence makes deportation "a virtual certainty" for an immigrant, no matter how long he has lived in the United States, Justice Elena Kagan wrote in her opinion for the court.

The decision is a loss for President Donald Trump's administration, which has emphasized stricter enforcement of immigration law. In this case, President Barack Obama's administration took the same position in the Supreme Court in defense of the challenged provision.

With the four other conservative justices in dissent, it was the vote of the Trump appointee that was decisive in striking down the provision at issue. Gorsuch did not join all of Kagan's opinion, but he agreed with her that the law could not be left in place. Gorsuch wrote that "no one should be surprised that the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it."

The case turned on a decision from 2015 that struck down a similarly worded part of another federal law that imposes longer prison sentences on repeat criminals. The majority opinion in that case was one of the last written by Justice Antonin Scalia, who died in 2016 and whose seat Gorsuch filled.

The 2015 decision "tells us how to resolve this case," Kagan wrote.

Tuesday's decision involves James Dimaya, a native of the Philippines who came to the United States legally as a 13-year-old in 1992. After he pleaded no contest to two charges of burglary in California, the government began deportation proceedings against him. The government argued among other things that he could be removed from the country because his convictions qualified as crimes of violence that allowed his removal under immigration law.

Immigration officials relied on a section of immigration law that lists crimes that make people eligible for deportation. The category in which Dimaya's convictions fell is a crime "that, by its very nature, involves a substantial risk that physical force ... may be used in the course of committing the offense."

Immigration judges would have allowed Dimaya to be deported, but the federal appeals court in San Francisco struck down the provision as unconstitutionally vague. The Supreme Court affirmed that ruling Tuesday.

The case was initially argued in January 2017 by a court that was short a member because of Scalia's death and the refusal of Senate Republicans to act on Obama's nomination of Judge Merrick Garland. Deadlocked 4-4, the justices scheduled a new round of arguments once Gorsuch joined the court.


The case is Sessions v. Dimaya, 15-1498.


http://www.businessinsider.com/gorsu...on-case-2018-4

Related:

SCOTUS Deems "Crime of Violence" Provision Unconstitutionally Vague

https://www.alipac.us/f12/scotus-dee...-vague-357867/