The Trump administration’s efforts to get convicted criminal aliens off of our streets and out of the country was dealt a setback this week, thanks to the U.S. Supreme Court.
A majority in Sessions v. Dimaya held that a part of the Immigration and Nationality Act (INA) used to deport criminal aliens was unconstitutionally “vague.” Fortunately, this is a problem Congress could easily remedy with a very simple legislative fix. Only those opposed to safeguarding the public from convicted felons could possibly oppose it.
At issue was a provision of the INA that defines what a “crime of violence” is for purposes of removal proceedings. Under federal law, if an alien is convicted of an “aggravated felony,” he is subject to deportation even if he is in the country legally. The INA has a long list of specific offenses that fit the “aggravated felony” definition, one of which is a “crime of violence” punishable by at least a year in prison.
The man at the center of this case, James Dimaya, is a lawful permanent resident alien from the Philippines. The U.S. moved to deport him after his second felony conviction for first-degree burglary under California law. An immigration court ordered Dimaya’s deportation because it found that first-degree burglary met the “crime of violence” definition.
Why? Because a “crime of violence” is further defined in federal law as any felony that poses “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
The immigration court believed that such a risk is present in a first-degree burglary when a criminal is breaking into an occupied residence. However, the Ninth Circuit Court of Appeals and the U.S. Supreme Court decided that the law was unconstitutionally vague. Justice Neil Gorsuch wrote an insightful concurring opinion in which he talked about the dangers of vague laws like this one that can lead to the arbitrary exercise of governmental power:
Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on the vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows.
Even if you disagree with the majority’s holding in the case, the fact remains that some violent felons who are aliens won’t be subject to removal proceedings and deportation because the Court found that part of the law too vague and thus constitutionally deficient.
The problem, as usual, is an overly complicated and overly long federal law.
The provision in the INA listing all the criminal offenses for which you can be deported has categories running through almost the entire alphabet, from “(A) murder, rape, or sexual abuse of a minor” through “(U) an attempt or conspiracy to commit an offense described in this paragraph . . .” A “crime of violence” is described in part (F) of this lengthy litany.
But aliens who are legally in this country are guests who should be allowed to remain here only as long as they abide by our laws. That’s not a big ask.
When someone commits a felony, whether it is a crime of violence or not, it’s a very serious offense. When someone repeatedly commits misdemeanor crimes, that is also evidence that they have no respect for our laws and shouldn’t be allowed to continue to be a guest in our country.
We don’t need a long, complex laundry list of all of the different crimes that will void your guest pass to be here. Congress could easily pass a very simple but highly effective amendment that could not be misconstrued by judges. It should say you are immediately deportable from this country if you are:
- Convicted of a felony offense, regardless of its nature, under federal law or the laws of any state or territory of the United States; or
- Convicted of two or more misdemeanor offenses under federal law or the laws of any state or territory of the United States.
That’s an easy, straightforward solution to the Dimaya decision.
If Congress wants to protect the American public from criminal aliens such as James Dimaya, who clearly should be deported, it could pass such a provision tomorrow, and President Trump could sign it the next day.
And the only members of Congress who would oppose it are those who think that criminal aliens, including repeat offenders, should remain in the country — an untenable and indefensible position.
This piece originally appeared in The National Review