The Immigration and Nationality Act provides that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation. The Supreme Court has decided, 5-4, that the statute’s defining an aggravated felony as “a crime of violence” is unconstitutionally vague. Sessions v. Dimaya, No. 15–1498 (Apr. 17, 2018). Justice Neil Gorsuch sided with the liberals on the Court.

According to the INA, an aggravated felony includes “a crime of violence for which the term of imprisonment [is] at least one year.” In a residual clause, a crime of violence is defined as an 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.”

James Dimaya, a legal permanent resident, was twice convicted of first degree burglary. The Supreme Court held that the residual clause was too unpredictable and arbitrary and created “grave uncertainty about how to estimate the risk posed by the crime.” The Court, in an opinion by Justice Elena Kagan in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Gorsuch joined (at least in part), also stated that a high threshold on vagueness should apply in this case because of the “grave nature of [civil] deportation” versus other civil penalties.

Justice Gorsuch agreed that the statute was unconstitutionally vague. He noted that the law requires fair notice and that this notice requirement “serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution.” He also stated that the legislature may not “‘abdicate their responsibilities for setting the standards of the criminal law’ by leaving judges the power to decide” the issues. Gorsuch did not accept the government’s argument about the power of the executive in these matters as stated by Deputy Solicitor General Edwin Kneedler: “I think it is important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which Congress has vested authority.” He wrote in his concurrence: “To acknowledge that the President has broad authority to act [in the immigration area] supplies no justification for allowing judges to give context an impermissibly vague law.”

Where Gorsuch differed from the majority was that he does not believe in a hierarchy of notice thresholds for different types of cases or that deportation should be singled out. Fair notice is his touchstone throughout.

Dimaya was originally argued before the Supreme Court in 2017 after Justice Antonin Scalia’s death. At that time, the case ended in a 4-4 deadlock. It has been suggested that Justice Scalia would have stood with the liberals on the Court regarding the vagueness analysis in this case, in accordance with his prior opinions.