In the Wake of Dimaya, Congress Creates a Sweeping Definition of a “Crime of Violence”
A recent op-ed in the New York Times characterizes the ideology of “America First” as having three pillars – isolationism, protectionism, and restricting immigration. The third pillar is on full display in Congress’s new bill in response to the United States Supreme Court decision in Sessions v. Dimaya.
Specifically, the Supreme Court found the federal definition of “crime of violence,” unconstitutionally vague. In response, the House of Representatives passed a bill seeking to define “crime of violence” more clearly. A close look at the bill, however, reveals some serious problems for immigrants in the U.S.
Current “Crime of Violence” Definition is Too Vague – Sessions v. Dimaya
In the recent Dimaya decision, the Supreme Court struck down the definition of “crime of violence” as being too vague to be interpreted. At issue in Dimaya was whether a person, convicted of first-degree burglary, could be deported for having committed a “crime of violence,” as defined under federal law, 18 U.S.C. § 16.
The Court ultimately held the federal definition was simply too unclear to determine whether a first-degree burglary would constitute a “crime of violence” for deportation purposes. The Court also invited Congress to pass legislation that provided a more-concrete definition of the phrase. Just a few days ago, the House of Representatives answered that invitation.
The Attempt at a Clearer Definition – The Community Safety and Security Act of 2018 – H.R. 6691
On September 7, 2018, the House passed a bill called the “Community Safety and Security Act of 2018.” The bill is focused on providing a federal definition of “crime of violence” that has the clarity and specificity to pass constitutional muster following the decision in Dimaya.
By way of summary, the Community Safety and Security Act defines the following specific criminal offenses as “crimes of violence:”
- Abusive sexual contact;
- Aggravated sexual abuse;
- Sexual abuse;
- Child abuse;
- Communication of threats;
- Domestic violence;
- Firearms use;
- Hostage taking;
- Human trafficking;
- Interference with flight crew members and attendants;
- Unlawful possession or use a weapon of mass destruction, or explosives; and
- Voluntary manslaughter.
In addition, the new bill has a “catch all” provision, stating that a “crime of violence” includes any offense that has, as an element of the offense, “the use, attempted use, or threatened use of physical force” against another’s person or property.
The new definition of “crime of violence” in the Community Safety and Security Act carefully tries to leave no discretion up to a court interpreting the statutory definition. Indeed, the problem with the definition in Dimaya was that the Supreme Court believed the Court was forced to speculate about whether a crime could be considered a crime of violence.
In the Community Safety and Security Act, by contrast, a “crime of violence” either expressly appears in the specific list of crimes provided, or the crime must contain an element of the offense that involves the use or threat of physical force. In short, a court does not need to speculate. Now that the bill has passed the House, it moves to the Senate for consideration.
Why the Sweeping, Broad New Bill Means Danger for Immigrants
On the one hand, the Community Safety and Security Act demonstrates how our constitutional system of separation of powers is supposed to operate. The Judicial Branch should not be creating legislation. That is the province of the Legislative Branch. In Dimaya, the Supreme Court was concerned about having to speculate about the meaning of a statute, thereby opening the door to unwarranted “legislation.” Thus, it is appropriate that once the Court found something too vague to be interpreted, Congress then steps in with legislation to clarify the statute.
On the other hand, the Community Safety and Security Act appears to be a way in which the House is overreaching to the serious detriment of immigrants in this country, consistent with the anti-immigrant policies of the Republican-controlled Congress and White House. There are several reasons for this conclusion.
First, the new bill is incredibly broad, almost irrationally so. Crimes that do not often involve any kind of violence or physical force are now listed as “crimes of violence.” For example, the crime of “coercion” as expressly defined in the new bill includes coercing someone through fraud. No reasonable definition of “violence” could include a crime of simply lying to someone else.
Other examples of listed crimes that do not include any rational concept of “violence” include extortion, fleeing, or possession of an explosive device. Without question, it is possible that someone fleeing the police, or committing extortion, could do something violent. However, fleeing from the police is actually the opposite of being violent; it is running away from the police. Further, the new bill is trying to state that simply possessing something dangerous is a violent act.
Second, the new bill is harsher on immigrants. Where the defendant in the Dimaya case was not deported, a similarly situated defendant would be deported under the new bill. In particular, the Supreme Court was unable to determine that Mr. Dimaya’s crime, first-degree burglary, was a “crime of violence” because burglary does not often involve confrontation with, or violence against, another person. Rather, it is typically breaking into a home or car. Thus, where the Supreme Court could not find Mr. Dimaya deportable for committing burglary, the new bill expressly says that all forms of burglary are “crimes of violence.”
Civil rights and immigrant rights groups have reason to be concerned. The Community Safety and Security Act of 2018 is so broad in its definition of a “crime of violence” that undocumented immigrants who commit crimes that do not involve any violence or physical force could still be deportable.
The bill is now in the U.S. Senate. Time will tell how far this bill may go. In the meantime, it would not be a bad idea for immigrant rights advocates to pressure senators to cast a skeptical eye on the sweeping nature of the Community Safety and Security Act of 2018.
Jeremy Gordon, Esq., is an expert legal practitioner specializing in all types of federal criminal defense and post-conviction cases. If you need top-notch legal representation, be sure to contact Jeremy for a free consultation at 844-ATTY-NOW.