Master The Supreme Court held that 18 U.S.C. § 16(b)'s "crime of violence" residual clause, as incorporated into the INA's aggravated felony definition, is unconstitutionally vague under the Fifth Amendment's Due Process Clause. with this comprehensive case brief.
Sessions v. Dimaya is a landmark decision at the intersection of constitutional vagueness doctrine and immigration enforcement. In a 5–4 ruling, the Supreme Court struck down the Immigration and Nationality Act's incorporation of 18 U.S.C. § 16(b)'s residual definition of a "crime of violence" as unconstitutionally vague. Building on Johnson v. United States (2015), the Court held that the residual clause invited standardless speculation about the "ordinary case" of an offense and the degree of risk it posed, failing to provide fair notice and permitting arbitrary enforcement.
The decision is significant for two reasons. First, it confirms that the void-for-vagueness doctrine applies with full force to civil immigration removal proceedings, which, though formally civil, carry severe consequences. Second, it extends Johnson's critique of residual "risk-based" clauses beyond the Armed Career Criminal Act to other statutes using similar formulations, reshaping both immigration and criminal law by invalidating a frequently invoked deportation ground and foreshadowing later rulings against comparable residual clauses.
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (U.S. Supreme Court)
James Garcia Dimaya, a native of the Philippines, was admitted to the United States as a lawful permanent resident. In 2007 and 2009, he sustained convictions in California for first-degree residential burglary under Cal. Penal Code § 459. In 2010, the Department of Homeland Security charged him as removable as an "aggravated felon" under 8 U.S.C. § 1227(a)(2)(A)(iii), relying on the Immigration and Nationality Act's definition of "aggravated felony," which includes a "crime of violence" as defined in 18 U.S.C. § 16. Section 16(a) (the elements clause) did not apply because California burglary does not require the use, attempted use, or threatened use of physical force as an element. The immigration judge and the Board of Immigration Appeals therefore relied on § 16(b)'s residual clause—covering any felony "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"—to conclude Dimaya's burglary convictions were crimes of violence, rendering him removable. While Dimaya's petition for review was pending, the Supreme Court decided Johnson v. United States, which invalidated the Armed Career Criminal Act's residual clause as unconstitutionally vague. The Ninth Circuit, following Johnson, held § 16(b) void for vagueness as incorporated into the INA and granted Dimaya's petition. The government sought Supreme Court review; after reargument, the Court affirmed.
Does 18 U.S.C. § 16(b)'s residual definition of a "crime of violence," as incorporated into the INA's aggravated felony provision, violate the Fifth Amendment's Due Process Clause for vagueness?
Under the Due Process Clause, a statute is void for vagueness if it fails to provide ordinary people fair notice of the conduct it punishes (or the consequences it triggers) and is so standardless that it invites arbitrary enforcement. Residual risk clauses are unconstitutional where, applying the categorical approach, courts must (1) imagine the "ordinary case" of a crime and (2) assess an indeterminate level of risk without clear metrics. The vagueness doctrine applies to civil removal proceedings, given their grave consequences. See Johnson v. United States (2015); Jordan v. De George (1951).
Yes. The Supreme Court held that § 16(b)'s residual clause, as incorporated into the INA's aggravated felony definition, is unconstitutionally vague in violation of the Fifth Amendment. The Court affirmed the Ninth Circuit's judgment.
Justice Kagan, writing for a plurality and joined in the judgment by Justice Gorsuch, explained that § 16(b) suffers from the same twin indeterminacies that invalidated the Armed Career Criminal Act's residual clause in Johnson. First, when used in removal proceedings, § 16(b) is applied via the categorical approach, which looks to the offense "by its nature," not the defendant's actual conduct. This requires a court to hypothesize the "ordinary case" of the crime (e.g., the typical way residential burglary is committed). Second, having imagined that ordinary case, the court must then gauge whether it "involves a substantial risk" that physical force "may be used in the course of committing the offense," a standard providing no administrable benchmark for what probability or magnitude of risk suffices. The government urged distinctions from Johnson, arguing that § 16(b) speaks in terms of the risk that force will be used (rather than risk of injury) and ties the risk to the commission of the offense itself. The Court found these differences immaterial: the statute still compels ordinary-case speculation, and "substantial risk" remains an indeterminate standard. Attempts to jettison the categorical approach and proceed case-specifically were rejected as incompatible with the statute's text ("by its nature") and longstanding precedent applying the categorical approach in both immigration and recidivism contexts. The Court further reaffirmed that the vagueness doctrine applies in civil deportation proceedings. Citing Jordan v. De George, the plurality emphasized that removal is a particularly severe sanction, and due process demands clear standards before the government may impose it. Because § 16(b) fails to provide fair notice and invites arbitrary decision-making, it violates due process. Justice Gorsuch concurred in part and in the judgment, underscoring that vagueness doctrine safeguards both fair notice and the separation of powers by preventing Congress from delegating basic policy choices to prosecutors and judges. He rejected any suggestion that civil labels dilute due process protections where liberty or banishment is at stake. He agreed that § 16(b), as applied categorically, leaves judges to guess at imagined ordinary cases and indeterminate risk thresholds, thereby crossing constitutional lines. Chief Justice Roberts, joined by Justices Kennedy, Thomas, and Alito, dissented, contending that § 16(b) materially differs from the ACCA residual clause and is sufficiently determinate when read to focus on the risk of the use of force in the course of the offense. Justice Thomas separately criticized the modern vagueness doctrine and its extension to civil contexts and questioned the necessity of the categorical approach.
Dimaya cements Johnson's void-for-vagueness analysis and extends it to civil immigration law, invalidating a common basis for removal predicated on the residual definition of a "crime of violence." It underscores that due process imposes meaningful limits on indeterminate risk-based statutory standards even outside criminal sentencing. The ruling influenced subsequent decisions, most notably United States v. Davis (2019), which struck down § 924(c)(3)(B)'s similar residual clause, and it reshaped removal litigation by eliminating § 16(b) as a path to "aggravated felony" status while leaving the elements clause (§ 16(a)) intact. For students, Dimaya is a keystone case on vagueness, the categorical approach, and the civil-criminal divide in constitutional protections.
Section 16(b) defined a "crime of violence" to include any felony 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 INA incorporates § 16 into its definition of an "aggravated felony." Before Dimaya, immigration judges routinely used § 16(b) to classify various state offenses (e.g., certain burglaries) as "crimes of violence" under the categorical approach, thereby making noncitizens removable as aggravated felons.
No. The Court rejected the government's invitation to conduct a fact-specific inquiry. It reaffirmed that § 16(b) (using the phrase "by its nature") must be applied categorically—i.e., by looking to the statutory elements and the ordinary case of the offense, not the defendant's actual conduct. The constitutional problem was that, combined with a nebulous risk standard, this approach left courts to speculate, rendering the clause void for vagueness.
Not categorically. Dimaya held that the residual clause in § 16(b) is unconstitutional. Some burglary statutes might still qualify under § 16(a)'s elements clause if they require the use, attempted use, or threatened use of physical force as an element. Many state burglary statutes—like California's—do not have a force element, so they cannot qualify under § 16(a), and after Dimaya they also cannot qualify under § 16(b).
Dimaya extends Johnson's reasoning. Johnson invalidated the ACCA residual clause because it required courts to imagine the ordinary case and assess an indeterminate level of risk. Dimaya found § 16(b) indistinguishably problematic. Building on both, Davis (2019) struck down § 924(c)(3)(B)'s residual clause for the same reasons, confirming a broader constitutional skepticism toward vague residual risk standards applied categorically.
Yes. The Court reiterated that due process constraints apply to civil statutes that impose severe consequences, including deportation. Citing Jordan v. De George, the Court treated removal as sufficiently grave to warrant the same vagueness scrutiny used in criminal cases. Thus, civil labels do not insulate statutes from void-for-vagueness challenges when liberty or expulsion interests are at stake.
The principal dissent (Chief Justice Roberts, joined by Justices Kennedy, Thomas, and Alito) argued that § 16(b) differs materially from the ACCA residual clause and is sufficiently determinate when read to focus on the risk that force will be used in committing the offense. Justice Thomas separately questioned the legitimacy and scope of modern vagueness doctrine—especially in civil contexts—and criticized reliance on the categorical approach.
Sessions v. Dimaya reaffirms that the Constitution demands clarity when statutes inflict severe consequences. By striking down § 16(b)'s residual clause as void for vagueness, the Court ensured that noncitizens cannot be removed based on an indeterminate standard requiring judges to hypothesize ordinary cases and guess at substantial risks without clear benchmarks.
For law students, Dimaya is essential reading on the void-for-vagueness doctrine, the categorical approach, and the application of due process in civil removal proceedings. It both consolidates Johnson's reasoning and signals broader scrutiny of residual risk clauses, shaping subsequent criminal and immigration jurisprudence and underscoring the rule-of-law requirement that Congress—not courts—must speak with clarity when defining grounds for punishment or banishment.
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