Originally published by The Washington Post
A Supreme Court ruling on immigration this week is igniting a new political battle over federal officials’ power to deport foreigners who have been convicted of certain crimes.
The White House and the nation’s top immigration official said the 5-to-4 ruling will make it harder for the Trump administration to deport people convicted of some sexual offenses and kidnapping crimes, as well as burglary in some states, among other offenses.
“It is yet another example of the need for Congress to urgently close the loopholes that allow criminal aliens to avoid removal and remain in the United States,” Thomas Homan, acting director of U.S. Immigration and Customs Enforcement, said in a statement.
But immigration lawyers countered that the federal law makes clear that foreigners convicted of murder, rape and other violent offenses can be deported.
They say the ruling offers important protections to immigrants whom the Department of Homeland Security has portrayed as “aggravated felons” based on a broad and vaguely defined category called “crimes of violence,” which may not have resulted in physical harm.
Boston lawyer Matt Cameron said he is aware of “dozens” of immigrants who might be spared from deportation or be allowed to apply for U.S. citizenship because of the ruling.
Among them is a Salvadoran man who grabbed a baseball bat to defend himself after he was followed home by a gang of white men hurling racial slurs at him and then was convicted of a crime. Another, he said, is a man from Cambodia who pleaded guilty to participating in a bar fight, even though he hid in the bathroom.
In all, thousands of immigrants could be affected, immigration lawyers say, particularly green-card holders, who are lawful permanent residents on a path to U.S. citizenship. But they say the decision could also aid undocumented immigrants, who, depending on the severity of their crime, may now have a chance to plead their case to stay.
The Supreme Court ruling involved James Dimaya, a green-card holder from the Philippines who has lived in the United States since 1992. He was convicted of home burglaries in 2007 and 2009.
The immigration courts stripped him of his green card and ordered him deported, concluding that in California, first-degree burglary is tantamount to a “crime of violence.”
Conservative Justice Neil M. Gorsuch, who was nominated by President Trump, joined four liberal colleagues in saying the statute was too vague for the immigration courts to reach that conclusion. They said the Immigration and Nationality Act lists many crimes, such as murder, rape and sexual abuse of a minor, as “aggravated felonies” that require deportation, and that will not change.
The majority explained that Dimaya’s burglaries fell into a too-broad miscellaneous category called “crimes of violence” designed to catch other crimes not on the law’s list, and defined as involving “a substantial risk [of] physical force against the person or property of another.”
It is up to the immigration courts and the Board of Immigration Appeals, which are part of the U.S. Department of Justice, to determine if those crimes should be considered aggravated felonies that make an immigrant eligible for deportation.
Gorsuch said that meant everyone from “armed home intruders to door-to-door salesmen peddling shady products” could be classified as meeting the “crime of violence” definition.
“How, on that vast spectrum, is anyone supposed to . . . say whether it includes a substantial risk of physical force?” he wrote in his decision. “The truth is, no one knows.”
E. Joshua Rosenkranz, Dimaya’s lawyer, said his client never physically hurt anyone during the break-ins, adding that the court’s decision does not preclude violent felons — whom Trump has referred to as “bad hombres” — from being deported.
“It’s the hombres that have lived generally law-abiding lives but for what is often a youthful lapse that are protected by this decision,” Rosenkranz said.
Trump administration officials disagreed, saying that the court ruling means that burglary in many states, drug trafficking in Florida and sexual abuse of a minor in New Jersey will no longer be considered aggravated felonies.
“Unless Congress acts, the United States Government will be unable to remove from our communities many noncitizens convicted of violent felonies, including in some cases domestic assault and battery, burglary, and child abuse,” White House press secretary Sarah Huckabee Sanders said in a statement.
Dale L. Wilcox, executive director and general counsel for the Immigration Reform Law Institute, which favors less immigration, noted that government attempts to deport Dimaya began when President Barack Obama was in office.
“Lost in the debate over the meaning of ‘crime of violence’ is the fact that Dimaya was convicted twice of first-degree burglary under California state law and is now allowed to remain in the United States,” Wilcox said in a statement.
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