Challenging the Use of 18 U.S.C. § 16(b) in Deportation Proceedings.

The Armed Career Criminal Act of 1984 (ACCA) is a federal law that provides sentence enhancements for felons in possession of a firearm, if the felon has three or more previous convictions for a “violent felony.” The term “violent felony” includes any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). This portion of the definition, known as the “residual clause,” is unique in that it is not focused on the elements of a conviction but rather the prospective risk entailed in the conduct required to commit a particular crime.

In June 2015, the Supreme Court struck down the residual clause as unconstitutionally vague under the Fifth Amendment in Johnson v. United States.  The Supreme Court reasoned that the residual clause leaves too much uncertainty about how to estimate the risk posed by a crime, and how much risk it takes for a crime to qualify as a violent felony.

The question now emerging before the immigration courts across the nation is what impact, if any, does Johnson have on the aggravated felony analysis.   The term “aggravated felony” has a special definition under the Immigration and Nationality Act. “Crimes of violence” are aggravated felonies if the sentence imposed is 365 days or more. “Crimes of violence” are defined in reference to a federal statute, 18 U.S.C. § 16. Section 16 says that a “crime of violence” means “(a) any 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.”

Section 16(b) closely resembles the residual clause of ACCA in that it requires an assessment of the risk that force may be used in the commission of the offense. The Supreme Court decision in Johnson therefore creates an opening to challenge aggravated felony determinations under section 16(b). To date, both the Ninth Circuit and the Seventh Circuit have applied Johnson in the immigration context and held that 18 U.S.C. § 16(b) is void for vagueness, thus eliminating that prong of the definition from aggravated felony determinations.

This is wonderful news to help fight against the government overreaching in its charging. If section 16(b) is also overly vague, then fewer offenses will qualify as aggravated felonies. This is important because aggravated felonies not only render people deportable from the United States, they also bar people from many immigration benefits and forms of relief, including asylum, cancellation of removal, and naturalization, to name a few.

If the government is charging you with a remova charge that depends on the federal definition of crime of violence, please contact Wilson Law Group .  We are vigorously challenging the use of 16(b) to justify deporting people to keep families united and individuals safe.