Immigration Code’s Definition of “Aggravated Felony” Is Vague!

Most lawyers defending illegal reentry cases are frustrated with the limited issues those cases present for litigation. Let it be known that Johnson v. United States, 135 S. Ct. 2551 (2015) has opened up a Pandora’s box of issues that can be exploited. The Seventh Circuit’s recent decision is illustrative.

Raul Vivas-Ceja pled guilty to illegally reentering the United States after removal, the maximum sentence for which is 20 years if the defendant has been convicted of an “aggravated felony” prior to removal. 8 U.S.C. § 1326(b)(2). The definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … 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.”

The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years. Vivas-Ceja was sentenced to serve 21 months in the BOP and appealed, arguing that § 16(b)’s definition of “crime of violence” was vague in light of Johnson.

The Seventh Circuit agreed finding that the Due Process Clause prohibited the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.” In Johnson the Supreme Court held that sentencing a defendant under the “residual clause” of the ACCA violated this prohibition. Because § 16(b) was materially indistinguishable from the ACCA’s residual clause, the Seventh Circuit held that §16(b) was unconstitutionally vague, vacated Vivas-Ceja’s sentence, and remanded the case for resentencing.