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Supreme Court strikes down vague definition in deportation law

"Vague laws," writes Justice Neil Gorsuch, "invite arbitrary power."

His words came in a concurring opinion in a recent U.S. Supreme Court case ruling that a lawful permanent resident cannot be deported for committing a nonviolent residential burglary. The reason is that the Immigration and Naturalization Act's definition of crimes requiring deportation is too vague to pass constitutional muster.

The immigrant at the center of the case is of Filipino origin and became a lawful permanent resident in 1992, when he was 13. He was convicted of burglary in 2009. Immigration authorities, citing the definition used in the INA, said he had committed an "aggravated felony" that required his deportation.

It's true that lawful permanent residents (green card holders) can be deported. One basis for their deportation is being convicted of certain crimes. However, burglary is not specifically listed as one of those crimes. Instead, the government relied on a catch-all part of the definition:

"Any other 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."

Is a nonviolent burglary a felony? Yes. Does it, by its nature, involve substantial risk of physical force against a person or property? Perhaps not. It's difficult to say -- and that is the Supreme Court's point.

Indeed, courts have ruled both ways, as Justice Elena Kagan discussed in her opinion. "Does car burglary qualify as a violent felony?" she asked. "Some courts say yes, another says no. What of statutory rape? Once again, the circuits part ways. How about evading arrest? The decisions point in different directions. Residential trespass? The same is true."

In 2015, the Supreme Court ruled that very similar language was unconstitutionally vague, and it has also ruled that this vagueness standard applies in deportation and removal cases.

Under our Constitution, due process requires -- at the least -- that a reasonable person should be able to understand what is forbidden in order to avoid it. Similarly, a reasonable judge must be able to apply the standard fairly across different cases. In the case of this definition, the court found, neither was true.

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