The Tenth Circuit has lined up with the Sixth and Ninth Circuit in extending the application of Johnson to deportation cases. Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). In Golicov, the Tenth Circuit agreed with the Sixth and Ninth Circuits that “because deportation strips a non-citizen of his rights, statutes that impose this penalty are subject to vagueness challenges under the Fifth Amendment.” Since Johnson addressed a constitutional vagueness challenge to the ACCA’s definition, then logically the same would apply to the INA.
However, the Fifth Circuit and the Second Circuit have rejected this application of Johnson. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc); United States v. Hill, 832 F.3d 135 (2d Cir. 2016). The Fifth Circuit pins its conclusion on the premise that the textual differences between § 16(b) and the ACCA’s residual clause are significant enough to spare § 16(b) from being unconstitutional because the ACCA’s residual clause “requires courts . . . to decide whether the ordinary case would present a serious potential risk of physical injury.” In contrast, § 16(b) focuses on whether the conduct ‘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 the Fifth Circuit’s view, the “[r]isk of physical force is more definite than risk of physical injury,” and “by requiring that the risk of physical force arise ‘in the course of committing’ the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete." Therefore, § 16(b) is saved by its more “definite” language.
As it stands right now, the Tenth Circuit law is still binding, and any challenge based on the void-for-vagueness doctrine will likely be successful in this circuit. However, the Fifth Circuit view may attract some traction with the new Supreme Court. Dimaya’s petition for certiorari in the Ninth Circuit case consistent with Golicov was granted on September 29, 2016. The case was argued last January, but in June the Court restored it to the calendar for reargument. Thus perhaps in the next term a definite ruling by the Supreme Court will settle this issue, but in the meantime the Tenth Circuit has certainly opened a door for counsel to pursue another avenue in protecting their clients from deportations.
---Contributed by Will Machado, Washburn Law 2019.