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Sessions v. Dimaya: Supreme Court, Deportation & Gorsuch

The U.S. Supreme Court will decide on Dimaya and determine of the issue of deportation is unconstitutionally void for vagueness.

From a border wall to a travel ban, the current occupant of the White House has not minced words about where he stands on United States immigration. Indeed, this focus on immigration law has put a spotlight on a case with substantial immigration ramifications that is currently pending before the United States Supreme Court. The case is Sessions v. Dimaya, deciding on deportation.

History of the Dimaya Case

James Garcia Dimaya, a Philippines native who, at age 13, became a lawful permanent resident in the U.S. In 2007 and 2009, he was convicted of residential burglary. As a result, the U.S. government sought deportation based on the fact that he committed an “aggravated felony,” which U.S. immigration law defines as any offense “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.”

When the Dimaya case reached the United States Court of Appeals for the Ninth Circuit, the court denied the Government’s deportation attempt of Dimaya, holding that the definition quoted above was too vague to be enforced, i.e., it was void for vagueness. Thus, Dimaya was not able to be deported. The Ninth Circuit relied upon the Supreme Court’s holding in Johnson v. United States, which was a case in which a similar definition in a criminal statute was found to be unconstitutionally vague.

On certiorari from the Ninth Circuit, the Dimaya case was first argued before the Supreme Court in early 2017.  At the time, there were only eight justices on the Court. The case ended in a split decision. Accordingly, the case was reargued in October 2017 after Justice Gorsuch joined the Court.

Assuming the other justices have not changed their minds, the big question is: which way will Justice Gorsuch vote? Will he agree with Dimaya that the definition in the immigration law is unconstitutionally vague? Or will he find for the Government that the definition can be interpreted and enforced?

My Opinion: Gorsuch Will Follow Scalia’s Rationale In Johnson Finding Deportation Statutory Definition Unconstitutionally Vague.

I know that speculating on how a Supreme Court Justice will rule in any given case has as much certainty as predicting whether it will rain six months from now. However, in my opinion, I believe Justice Gorsuch will find the definition at issue with deportation in Dimaya unconstitutionally vague. I come to that conclusion for two reasons.

 Justice Gorsuch Showed His Hand During Oral Argument.

Justice Gorsuch, an active questioner during oral argument, did not challenge both sides equally. Rather, the majority of his questions, even during the argument of Dimaya’s counsel, were focused on the weakness of the Government’s position that the definition regarding deportation was not vague.

With regard to whether criminal and civil statutes should be evaluated using different vagueness standards, Gorsuch went directly to the language of the Due Process Clause. He used the Clause to assert that the Constitution makes no distinction between criminal and civil statutes. He also noted that the sanction in the civil (immigration) context for Dimaya, deportation is more severe than some criminal penalties.

Gorsuch then pivoted, while questioning the Government, to the subject of separation of powers. He put emphasis on the point that the vagueness doctrine is important because judges should not engage in lawmaking when a statute is unclear. In other words, if a statute is vague such that a judge cannot understand its meaning, then the judge should stop and not legislate.


In that vein, Gorsuch mused:

I wonder here how I would go about determining what the ordinary case is . . . I would probably want to have statistics and evidentiary hearings and hear experts on that question. And that sounds to me a lot like what a legislative committee might do. And if I can’t distinguish my job from a legislative committee’s work, am I not verging on the separation of powers problem?

(Oral Argument 19-20 to 20-7).

Also very revealing was the fact that Mr. Dimaya’s counsel began his argument by agreeing with Justice Gorsuch on the separation of powers point. Specifically, counsel stated:

Let me begin – begin with Justice Gorsuch’s central point. Justice Gorsuch is right. This is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground.

(Oral Argument 31-18 to -22) (emphasis added).

As Dimaya’s counsel continued, Gorsuch appeared to be largely in agreement. At one point, Gorsuch asked Dimaya’s counsel to reinforce his use of the Due Process Clause. In particular, Gorsuch asked whether the Clause supports the position that the severity of the penalty is more important than a court-determined line between criminal and civil statutes for purposes of the vagueness doctrine.

JUSTICE GORSUCH: What do you think about this line? Life, liberty, or property.
COUNSEL FOR DIMAYA: That’s a great line.
JUSTICE GORSUCH: It’s right out of the text of the Due Process Clause itself.
COUNSEL FOR DIMAYA: Yes, that’s a great line: Life, liberty, or property.

(Oral Argument 43-12 to -18).

At the close of the argument, the Government’s counsel gave a three-minute rebuttal. Again, Justice Gorsuch questioned the Government’s counsel on the separation of powers issue.


In sum, Justice Gorsuch seemed to tip his hand during oral argument. He demonstrated his originalist/textualist bona fides by going to the language of the Constitution.  This, in part, to undermine the notion that criminal and civil statutes should have a different vagueness standard.

Also, he put forth a strong separation of powers rationale.  Essentially stating that Congress has a responsibility to draft clear statutes so courts do not engage in lawmaking.

Finally, the tenor of Justice Gorsuch’s questioning during oral argument showed concern with the Government’s position while in virtual agreement with Dimaya’s position. If the oral argument is any gauge of which way Justice Gorsuch will go, then it appears that Dimaya’s position gets Gorsuch’s vote.

Justice Scalia Authored Johnson.

Justice Gorsuch has indicated to scholars and pundits alike that he leans intoan originalist and a textualist like Justice Scalia. He appears to share Scalia’s jurisprudence of emphasizing the importance of the Constitution’s text itself, and the original intent of those who wrote it. In fact, it is difficult to read an article about Justice Gorsuch in which he is not characterized as the next Justice Scalia.

Moreover, Justice Scalia authored the majority opinion in Johnson, upon which the Ninth Circuit in Dimaya relied. Scalia’s Johnson opinion held that a statute similar to the one in Dimaya was unconstitutionally vague. Indeed, the statute at issue in Johnson had come before the Court on several occasions. Each time, Scalia wrote a dissent urging the Court to find the statute void for vagueness. Not surprisingly, Scalia’s reasoning in all of those cases was grounded in the Due Process Clause, which Justice Gorsuch mentioned several times during oral argument.

Accordingly, it would be highly unusual for Justice Gorsuch to disagree with Justice Scalia’s Johnson opinion. It seems clear that Gorsuch views the law through the prism of Scalia’s jurisprudence.


To conclude, a decision in the Dimaya case is expected within the month. I place my money on Justice Gorsuch to break the Court’s stalemate and find the statutory definition at issue void for vagueness in the style of Scalia’s Johnson decision. Perhaps, Gorsuch will even be asked to write the majority opinion.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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