James Garcia Dimaya, a native of the Philippines, was admitted to the United States as a lawful permanent resident. In 2007 and 2009, he sustained convictions in California for first-degree residential burglary under Cal. Penal Code § 459. In 2010, the Department of Homeland Security charged him as removable as an "aggravated felon" under 8 U.S.C. § 1227(a)(2)(A)(iii), relying on the Immigration and Nationality Act's definition of "aggravated felony," which includes a "crime of violence" as defined in 18 U.S.C. § 16. Section 16(a) (the elements clause) did not apply because California burglary does not require the use, attempted use, or threatened use of physical force as an element. The immigration judge and the Board of Immigration Appeals therefore relied on § 16(b)'s residual clause—covering any felony "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"—to conclude Dimaya's burglary convictions were crimes of violence, rendering him removable. While Dimaya's petition for review was pending, the Supreme Court decided Johnson v. United States, which invalidated the Armed Career Criminal Act's residual clause as unconstitutionally vague. The Ninth Circuit, following Johnson, held § 16(b) void for vagueness as incorporated into the INA and granted Dimaya's petition. The government sought Supreme Court review; after reargument, the Court affirmed.
Does 18 U.S.C. § 16(b)'s residual definition of a "crime of violence," as incorporated into the INA's aggravated felony provision, violate the Fifth Amendment's Due Process Clause for vagueness?
Under the Due Process Clause, a statute is void for vagueness if it fails to provide ordinary people fair notice of the conduct it punishes (or the consequences it triggers) and is so standardless that it invites arbitrary enforcement. Residual risk clauses are unconstitutional where, applying the categorical approach, courts must (1) imagine the "ordinary case" of a crime and (2) assess an indeterminate level of risk without clear metrics. The vagueness doctrine applies to civil removal proceedings, given their grave consequences. See Johnson v. United States (2015); Jordan v. De George (1951).
Yes. The Supreme Court held that § 16(b)'s residual clause, as incorporated into the INA's aggravated felony definition, is unconstitutionally vague in violation of the Fifth Amendment. The Court affirmed the Ninth Circuit's judgment.
Justice Kagan, writing for a plurality and joined in the judgment by Justice Gorsuch, explained that § 16(b) suffers from the same twin indeterminacies that invalidated the Armed Career Criminal Act's residual clause in Johnson. First, when used in removal proceedings, § 16(b) is applied via the categorical approach, which looks to the offense "by its nature," not the defendant's actual conduct. This requires a court to hypothesize the "ordinary case" of the crime (e.g., the typical way residential burglary is committed). Second, having imagined that ordinary case, the court must then gauge whether it "involves a substantial risk" that physical force "may be used in the course of committing the offense," a standard providing no administrable benchmark for what probability or magnitude of risk suffices. The government urged distinctions from Johnson, arguing that § 16(b) speaks in terms of the risk that force will be used (rather than risk of injury) and ties the risk to the commission of the offense itself. The Court found these differences immaterial: the statute still compels ordinary-case speculation, and "substantial risk" remains an indeterminate standard. Attempts to jettison the categorical approach and proceed case-specifically were rejected as incompatible with the statute's text ("by its nature") and longstanding precedent applying the categorical approach in both immigration and recidivism contexts. The Court further reaffirmed that the vagueness doctrine applies in civil deportation proceedings. Citing Jordan v. De George, the plurality emphasized that removal is a particularly severe sanction, and due process demands clear standards before the government may impose it. Because § 16(b) fails to provide fair notice and invites arbitrary decision-making, it violates due process. Justice Gorsuch concurred in part and in the judgment, underscoring that vagueness doctrine safeguards both fair notice and the separation of powers by preventing Congress from delegating basic policy choices to prosecutors and judges. He rejected any suggestion that civil labels dilute due process protections where liberty or banishment is at stake. He agreed that § 16(b), as applied categorically, leaves judges to guess at imagined ordinary cases and indeterminate risk thresholds, thereby crossing constitutional lines. Chief Justice Roberts, joined by Justices Kennedy, Thomas, and Alito, dissented, contending that § 16(b) materially differs from the ACCA residual clause and is sufficiently determinate when read to focus on the risk of the use of force in the course of the offense. Justice Thomas separately criticized the modern vagueness doctrine and its extension to civil contexts and questioned the necessity of the categorical approach.
Dimaya cements Johnson's void-for-vagueness analysis and extends it to civil immigration law, invalidating a common basis for removal predicated on the residual definition of a "crime of violence." It underscores that due process imposes meaningful limits on indeterminate risk-based statutory standards even outside criminal sentencing. The ruling influenced subsequent decisions, most notably United States v. Davis (2019), which struck down § 924(c)(3)(B)'s similar residual clause, and it reshaped removal litigation by eliminating § 16(b) as a path to "aggravated felony" status while leaving the elements clause (§ 16(a)) intact. For students, Dimaya is a keystone case on vagueness, the categorical approach, and the civil-criminal divide in constitutional protections.
Sessions v. Dimaya reaffirms that the Constitution demands clarity when statutes inflict severe consequences. By striking down § 16(b)'s residual clause as void for vagueness, the Court ensured that noncitizens cannot be removed based on an indeterminate standard requiring judges to hypothesize ordinary cases and guess at substantial risks without clear benchmarks.