Crime of Violence Aggravated Felony Litigation

Transcription

1 Crime of Violence Aggravated Felony Litigation The Federal Immigration Litigation Clinic (FILC) at the University of Minnesota, James H. Binger Center for New Americans represented three clients in the same constitutional challenge to 18 U.S.C. 16(b). That statutory provision defines crime of violence and is incorporated into the Immigration and Nationality Act s list of aggravated felonies. Each of the three clients had been convicted of a criminal offense which was determined to be a crime of violence under 16(b). Based on those convictions, each client was ordered removed. In challenging their removability, each argued at the Board of Immigration Appeals (BIA) that 16(b) was unconstitutional under the reasoning of Johnson v. United States, 135 S. Ct (2015). Section 16(b) defines a crime of violence as: 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. In order to determine this substantial risk of the use of force, courts have employed the categorical approach, which the Supreme Court recently identified as problematic in Johnson v. United States, 135 S. Ct (2015). The Johnson court found ACCA s residual clause, a statute with language strikingly similar to 16(b) s, to be unconstitutional because it left uncertain how courts would a) estimate the risk posed by a crime and b) determine how much risk it takes for a crime to qualify as a violent felony. Id. at FILC argued, as did the lawyers for Dimaya, that 16(b) suffered from the same defects and ought to be found to be unconstitutionally vague. FILC students and attorneys brought the appeal to the Eighth Circuit, where the case is currently stayed pending the outcome of the Supreme Court s consideration of Sessions v. Dimaya. Analogizing to Johnson, each client had argued that 16(b) was unconstitutionally vague because, like ACCA, it required judges to envision the typical ways in which a crime would be committed as well as the level of risk that was required to make such a conviction a crime of violence. Arising in the Ninth Circuit, Dimaya presents the same constitutional challenge to 16(b). That case was argued January 17, 2017 and will likely be decided later this term. The Supreme Court will soon decide whether 16(b) is unconstitutionally vague. If the Court decides that it is, any order of removal entered under the auspices of 16(b) will be subject to a challenge. On the other hand, if the Court determines that 16(b) is in fact constitutional, challenges to removal orders will only be available under the classic categorical approach. Like for FILC s clients, this will involve arguing that a particular conviction is not categorically a crime of violence, under the Dimaya ruling, because there is no substantial risk of the use of physical force in the commission of the crime. Alternatively, the Dimaya decision may not fully be resolved if there is a 4 4 split. In that case, Circuit Courts that have not already done so, like the Eighth Circuit, may be forced to rule on the constitutionality of 16(b); lawyers in those Circuits, and here in the Eighth Circuit, should argue both the constitutionality of 16(b) as well as that their client s crimes do not constitute crimes of violence. Any attorney with a client who was ordered removed on the basis of 16(b) should argue its constitutionality so as to preserve the issue for appeal in the event that Dimaya is decided favorably for those clients. page 1

2 No UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Kong Meng Xiong, Petitioner v. Loretta E. Lynch Attorney General of the United States, Respondent PETITION FOR REVIEW FROM THE UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS AGENCY CASE NUMBER: A PETITIONER S OPENING BRIEF Nadia Anguiano-Wehde John Bruning Charles Barrera Moore Certified Student Attorneys Benjamin Casper MN # Julia Decker MN # Supervising Attorneys University of Minnesota Law School Center for New Americans th Avenue South Minneapolis, MN Attorneys for Petitioner Kong Meng Xiong page 2

3 SUMMARY OF THE CASE The BIA s decision that Xiong s misdemeanor burglary conviction was a crime of violence aggravated felony should be reversed because the Supreme Court s holding in Johnson v. United States, 135 S. Ct (2015), that the residual clause of the Armed Career Criminal Act ( ACCA ) was unconstitutionally vague, applies with equal force to 18 U.S.C. 16(b). Section 16(b) s operation under the categorical approach is indistinguishable. Because 16(b), which served as the basis for Xiong s removal order and his ineligibility to apply for cancellation of removal, is unconstitutionally vague, this Court should reverse the BIA s holding that Xiong s conviction was a crime of violence and remand for further review. Alternatively, if 16(b) is constitutional, this Court should hold that Xiong s second degree burglary conviction is not a crime of violence aggravated felony. Under Moncrieffe s minimum conduct analysis, 133 S. Ct. 1678, 1684 (2013), Xiong s statute of conviction poses no substantial risk of the use of force because it allows for conviction when a defendant gains entry to an unoccupied dwelling without force or the intent to commit a crime, and commits a non-violent offense therein. Minn. Stat , Subd. 2(a)(1). Petitioner respectfully requests oral argument of twenty minutes per side to present this important issue to the Court. i page 3

4 TABLE OF CONTENTS SUMMARY OF THE CASE... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF JURISDICTION... 1 STATEMENT OF ISSUES... 2 STATEMENT OF THE FACTS AND CASE... 3 SUMMARY OF ARGUMENT ARGUMENT I. Standard of Review II. Xiong s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a Crime of Violence Under 18 U.S.C. 16(b) Because That Statutory Provision Is Unconstitutionally Vague A. Johnson Holds ACCA s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes B. Like ACCA s Residual Clause, 18 U.S.C. 16(b) Is Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes III. Alternatively, Even if 18 U.S.C. 16(b) Is Constitutional, a Conviction Under Minn. Stat , Subd. 2(a)(1) Is Categorically Not a Crime of Violence Under 16(b) A. Minimum Conduct Is the Proper Categorical Analysis Under 16(b) After the Supreme Court Abrogated the Ordinary Case Approach in Johnson B. Under the Correct Minimum Conduct Test, Second-Degree Burglary Does Not Pose a Substantial Risk of Force CONCLUSION ii page 4

5 TABLE OF AUTHORITIES Federal Cases Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) Arriaga v. Mukasey, 521 F.3d 219 (2d Cir. 2008) Begay v. United States, 553 U.S. 137 (2008) De La Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006) Demore v. Kim, 538 U.S. 510 (2003) Descamps v. United States, 133 S. Ct (2013) Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015)... passim Doe v. Holder, 651 F.3d 824 (8th Cir. 2011) Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008) Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) James v. United States, 550 U.S. 192 (2007)... passim Johnson v. United States, 135 S. Ct (2015)... passim Johnson v. United States, 559 U.S. 133 (2010)... 31, 36 Jordan v. De George, 341 U.S. 223 (1951) Leocal v. Ashcroft, 543 U.S. 1 (2004)... passim Matter of Francisco-Alonzo, 26 I. & N. Dec. 594 (B.I.A. 2015)... 8, 11, 31, 41 Mhaidli v. Holder, 381 F.App x 521 (6th Cir. 2010) (unpublished) Moncrieffe v. Holder, 133 S. Ct (2013)... passim iii page 5

6 Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) Perez-Munoz v. Keisler, 507 F.3d 357, (5th Cir. 2007) Reno v. Flores, 507 U.S. 292 (1993) Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013)... 23, 24 Shepard v. United States, 544 U.S. 13 (2005) Taylor v. United States, 495 U.S. 575 (1990)... 17, 33 United States v. Alas-Castro, 184 F.3d 812 (8th Cir. 1999) United States v. Avila, 780 F.3d 1100, United States v. Birbragher, 603 F.3d 478 (8th Cir. 2010) United States v. Castleman, 134 S. Ct (2014) United States v. Dawn, 685 F.3d 790 (8th Cir. 2012) United States v. Fish, 758 F.3d 1 (1st Cir. 2014) United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999)... 26, 27 United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016) United States v. Howell, 552 F.3d 709 (8th Cir. 2009) United States v. Keelan, 786 F.3d 865 (11th Cir. 2015) United States v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993)... 9, 39 United States v. Prickett, 2015 WL (W.D. Ark. Oct. 8, 2015), appeal docketed United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007)... 24, 26 United States v. Spudich, 510 F.3d 834 (8th Cir. 2008) United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), reh g denied... 28, 29 iv page 6

7 United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007)... 22, 23, 36 United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015)... 2, 12, 20 Van Don Nguyen v. Holder, 571 F.3d 524 (6th Cir. 2009) Welch v. United States, 136 S. Ct (2016)... 12, 17, 19, 28 State Cases Munger v. State, 749 N.W.2d 335 (Minn. 2008). 35 State v. Anderson, 806 N.W.2d 856 (Minn. Ct. App. 2011)...42 State v. Garcia-Gutierrez, 844 N.W.2d 519 (Minn. 2014).42 State v. Nelson, 363 N.W.2d 81 (Minn. Ct. App. 1985)..35 State v. Olson, 382 N.W.2d 279 (Minn. Ct. App. 1986).37 State v. Rodriguez, 863 N.W.2d 424 (Minn. Ct. App. 2015)..35, 36, 37 Federal Statutes 18 U.S.C , 8, U.S.C. 16(b)... passim 18 U.S.C. 924(c)(3)(B)... 28, U.S.C. 924(e)(2)(B)(ii)... passim 8 U.S.C. 1101(a)(43)(F)... passim 8 U.S.C. 1101(a)(43)(G)...5, 6 8 U.S.C. 1159(a)(2) U.S.C. 1227(a)(2)(A)(iii)... 5, 21 8 U.S.C. 1227(a)(2)(E)(i)...5, 9 v page 7

8 8 U.S.C. 1229b(a)... 4, 29 8 U.S.C. 1229b(a)(3) U.S.C. 1231(a)(3) U.S.C U.S.C. 1252(a)(1) U.S.C. 1252(b)(1) U.S.C. 1229(a) State Statutes Minn. Stat , Subd. 1(2)... 5 Minn. Stat , Subd. 1(d)... 9 Minn. Stat Minn. Stat Minn. Stat Minn. Stat Minn. Stat , Subd Minn. Stat , Subd. 4(b) Minn. Stat , Subd. 4(c) Minn. Stat , Subd. 1(a) Minn. Stat , Subd. 1(b) Minn. Stat , Subd. 2(a)... 15, 32, 34 Minn. Stat , Subd. 2(a)(1)... passim vi page 8

9 SUMMARY OF ARGUMENT This Court should hold that 16(b) is unconstitutionally vague, and on this basis reverse the BIA s decision that Xiong s conviction for second degree burglary can be a crime of violence aggravated felony. In Johnson v. United States, the Supreme Court held that the residual clause of ACCA was unconstitutionally vague. 135 S. Ct (2015). In so holding, the Supreme Court invalidated a statute that bears striking similarities to 18 U.S.C. 16(b), the statute under which Xiong was found to have a conviction for a crime of violence aggravated felony. The Supreme Court found that the analysis required by ACCA s residual clause was unconstitutional because inquiring into the nature and extent of risk for a given crime under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. Welch v. United States, 136 S. Ct. 1257, 1262 (2016). Section 16(b) suffers from this same defect because it requires a court to apply an inexact standard both in determining the level of risk posed by a given offense and the amount of risk necessary to meet an undetermined threshold of substantial risk. See Johnson, 135 S. Ct. at The two circuit courts that have made a final determination on Johnson s applicability to 16(b) have found the statute to be unconstitutional. See United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). This Court 12 page 9

10 should similarly find 16(b) to be unconstitutional because, like the statute in Johnson, it requires a judge to engage in an imprecise inquiry into the nature of the crime as well as an estimation of the substantial risk presented by a given offense. See 18 U.S.C. 16(b). Therefore, this Court ought to grant Xiong s petition for review, reverse the BIA s holding that Xiong s second degree burglary conviction is a crime of violence aggravated felony, and remand for review by the BIA. Alternatively, if the Court finds 16(b) to be constitutional, it should still reverse the decision of the BIA because, in reaching its conclusion that Xiong had a crime of violence aggravated felony, the BIA erroneously applied the ordinary case framework, which the Supreme Court abrogated in Johnson. Johnson identified the defects of the ordinary case approach and concluded that those defects made ACCA s residual clause unconstitutional, thus rejecting the ordinary case approach altogether. Johnson, 135 S. Ct. at Under the proper minimum conduct standard, Xiong has not been convicted of an aggravated felony because the Minnesota statute allows for a conviction in scenarios in which no force is used to gain entry into an unoccupied building, there is no intent to commit a crime upon entry, and the individual commits a misdemeanor, non-violent crime therein. The BIA erred when it determined that all burglaries were crime of violence aggravated felonies, as a proper element-based 13 page 10

11 analysis would have revealed that second degree burglary under Minn. Stat , Subd. 2(a)(1) does not categorically involve a substantial risk of physical force. Even if the Court deems the ordinary case approach proper to apply to 16(b), the BIA erred in concluding that the ordinary case of second degree burglary presents a substantial risk that physical force will be used. Employing either mode of analysis, the Court should reverse the decision of the BIA that Xiong s conviction for second degree burglary was a crime of violence aggravated felony and remand to the BIA for a decision consistent with this Court s holding. 14 page 11

12 ARGUMENT I. Standard of Review This Court reviews challenges to the constitutionality of a federal statute de novo. United States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010); United States v. Howell, 552 F.3d 709, 712 (8th Cir. 2009). This Court also reviews questions of law de novo, including whether the BIA applied the correct legal standard. Doe v. Holder, 651 F.3d 824, 829 (8th Cir. 2011). II. Xiong s Second Degree Burglary Conviction Cannot Lawfully Be Classified as a Crime of Violence Under 18 U.S.C. 16(b) Because That Statutory Provision Is Unconstitutionally Vague Xiong s conviction for second degree burglary under Minn. Stat , Subd. 2(a) cannot lawfully be classified as a crime of violence and thus this Court should reverse and remand because 18 U.S.C. 16(b) is unconstitutionally vague. Like ACCA s residual clause, which the Supreme Court struck down in Johnson v. United States, 135 S. Ct (2015), 16(b) is also unconstitutionally vague because it requires courts to apply an ordinary case categorical analysis to an inherently imprecise statutory definition, yielding an impermissibly vague standard. As was held in Johnson, such analytical framework contravenes the 15 page 12

13 Constitution by produc[ing] more unpredictability and arbitrariness than the Due Process Clause tolerates. 8 See Johnson, 135 S. Ct. at To understand the shared characteristics of 16(b) and ACCA s residual clause that render both provisions unconstitutionally vague, it is necessary to begin with a short review of Johnson s holding and reasoning. A. Johnson Holds ACCA s Residual Clause Is Unconstitutionally Vague Because It Requires Courts To Assess Hypothetical Risks Posed By Abstracted Versions of Crimes In Johnson, the Supreme Court held that imposing increased sentences under ACCA s residual clause denies due process of law because the residual clause is unconstitutionally vague. Johnson, 135 S. Ct. at Under ACCA, sentences for violation of certain firearm offenses can be enhanced if the violator has three or more prior convictions for a violent felony. ACCA defines violent felony as: any crime punishable by imprisonment for a term exceeding one year... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B) (emphasis added). 8 Though Johnson arose in the criminal law context, the vagueness doctrine applies in immigration cases as well. See infra note page 13

14 Subsection (i) of the violent felony definition is referred to as the elements clause, and the italicized portion of subsection (ii) is the so-called residual clause. Welch v. United States, 136 S. Ct. 1257, 1261 (2016). Generally, to determine whether a particular crime qualifies as a violent felony under ACCA, courts employ the categorical approach. Taylor v. United States, 495 U.S. 575, (1990). Under the categorical approach, a court assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. Johnson, 135 S. Ct. at 2557 (quoting Begay v. United States, 553 U.S. 137, 141 (2008)). That is, courts focus on statutory elements only, and make a categorical determination of whether a crime fits the violent felony definition without regard to the conduct that the particular defendant engaged in. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). In James v. United States, 550 U.S. 192 (2007), the Supreme Court established the ordinary case framework for determining whether crimes were categorically violent felonies under the residual clause. Ultimately deemed unworkable by Johnson, James s ordinary case framework required courts to conjure up an idealized ordinary version of the crime in question, and then assess whether that abstraction reached the quantum of risk necessary to qualify as a violent felony. See Johnson, 135 S. Ct. at In Johnson, the Court lamented its 17 page 14

15 failed attempts at applying James s ordinary case framework to residual clause cases in a principled and consistent manner, and ultimately concluded that the residual clause s operation under this framework violated due process. Id. at More specifically, the Supreme Court concluded that two features of ACCA s residual clause combined to make it unconstitutionally vague. Id. at First, the Court reasoned that through James s ordinary case directive that courts imagine an idealized ordinary version of a crime, the residual clause left grave uncertainty as to how courts were to estimate the potential risk posed by a crime because the residual clause offered no guidance for determining what the ordinary case of a crime was. Id. at Instead, the Johnson Court noted, courts were simply left to speculate: To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Id. at The residual clause, the Johnson Court reasoned, simply offers no reliable way to choose between competing formulations of what the ordinary version of a crime is. Id. at Second, the Johnson Court concluded that the residual clause left uncertainty about the quantum of risk necessary to fall within its scope. 135 S. Ct. at In other words, the Court wasn t only troubled by James s mandate that judges fabricate the idealized ordinary version of a crime; the Court was also troubled by 18 page 15

16 the residual clause s failure to provide sufficient guidance for determining if that ordinary case reached the quantum of risk necessary to qualify as a violent felony. Id. As the Court noted, [i]t is one thing to apply an imprecise serious potential risk standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. Id. Without enough guidance to evaluate when the risk of the idealized ordinary version of the crime was serious enough to cross the inherently imprecise serious potential risk threshold, the residual clause left courts in a state of unresolvable doubt. See id. at As the Supreme Court summarized it, the residual clause failed not because it adopted a serious potential risk standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. Welch v. United States, 136 S. Ct. 1257, 1262 (2016). By combining the indeterminacy of the failed ordinary case categorical method for measuring risk with the indeterminacy about the quantum of risk necessary for a crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates. Johnson, 135 S. Ct. at page 16

17 B. Like ACCA s Residual Clause, 18 U.S.C. 16(b) Is Unconstitutionally Vague Because It Too Requires Courts To Assess Hypothetical Risks Posed by Abstracted Versions of Crimes Like ACCA s residual clause, 18 U.S.C. 16(b) is also unconstitutionally vague and should be struck down by this Court because it requires courts to employ the same failed ordinary case analytical framework against an inherently imprecise statutory standard. As recognized by the Seventh and Ninth Circuits, 18 U.S.C. 16(b) suffers from the same key indeterminacies as ACCA s residual clause because it requires courts to 1) measure the risk by an indeterminate standard of a judicially imagined ordinary case, not by real-world facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial. Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015); accord United States v. Vivas-Ceja, 808 F.3d 719, (7th Cir. 2015). 9 As the Johnson Court made clear, such fatal combination violates the Fifth Amendment s guarantee of due process, see Johnson, 135 S. Ct. at 2558, and this Court should thus strike down 16(b) as unconstitutionally vague. 9 The question of 16(b) s constitutionality in light of Johnson has also come before the Fifth Circuit. In United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), a panel of that circuit agreed with the Seventh and Ninth Circuits and held that 16(b) was unconstitutionally vague under Johnson. The Fifth Circuit later granted rehearing en banc of Gonzalez-Longoria, and oral argument is scheduled for May 24, page 17

18 It is important to note that though Johnson considered a criminal statute, [i]t is well established that the Fifth Amendment entitles [noncitizens] to due process of law in deportation proceedings. See Demore v. Kim, 538 U.S. 510, 523 (2003) (alteration in original) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). Thus, Johnson s reasoning is squarely applicable to Xiong s challenge that 16(b) is unconstitutionally vague in the context of his deportation proceedings. 10 Because 16(b) is unconstitutionally vague, it cannot form the basis of Xiong s order of removal. Under the INA, a conviction for an aggravated felony renders any non-citizen, including long-term permanent residents, removable and statutorily ineligible for virtually all forms of relief from removal, including cancellation. See 8 U.S.C. 1227(a)(2)(A)(iii); 8 U.S.C. 1229b(a)(3). Section 1101(a)(43)(F) of Title 8 defines aggravated felony through a list of categories of offenses, one type of which is a crime of violence for which the term of 10 While the Supreme Court has not previously struck down as unconstitutionally vague any statutory grounds for deportation, it has acknowledged that unconstitutionally vague statutory grounds for deportation would not be enforceable. Jordan v. De George, 341 U.S. 223, 231 (1951) ( Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation. ). Several circuit courts have also considered void for vagueness challenges to immigration statutes. See Dimaya v. Lynch, 803 F.3d 1110, (9th Cir. 2015); Mhaidli v. Holder, 381 F.App x 521, (6th Cir. 2010) (unpublished); Arriaga v. Mukasey, 521 F.3d 219, (2d Cir. 2008); Garcia- Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008). 21 page 18

19 imprisonment is at least one year. 8 U.S.C. 1101(a)(43)(F). Crime of violence, in turn, is defined by 18 U.S.C. 16 as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) 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. 18 U.S.C. 16 (emphasis added). To determine whether an offense is a crime of violence under this statute, courts employ the categorical approach. See Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (Section 16 s language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner s crime. ). Indeed, though there are relatively few Eighth Circuit decisions considering whether a particular offense is a crime of violence under 16(b), when this Court has had occasion to consider the issue, it has made clear that it does not look to the facts underlying the particular conviction, but instead must apply the categorical approach and look at the nature of the offense as mandated by the 16(b) statutory text. United States v. Torres-Villalobos, 487 F.3d 607, (8th Cir. 2007) (citing Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)) (emphasis added). More specifically, analysis under 16(b) requires this Court to make a categorical determination of whether the offense naturally involve[s] a person acting in disregard of the risk that physical force might be used against another in 22 page 19

20 committing an offense. Leocal, 543 U.S. at 10; Torres-Villalobos, 487 F.3d at 615. Critically, such inquiry into the nature of a particular crime, to determine if the crime naturally involves the risk that force might be used, is plagued by the same indeterminacy inherent in the ordinary case analysis that conspired to render ACCA s residual clause unconstitutional. Just as ACCA s residual clause posed an irresolvable question about whether an idealized ordinary offense would involve conduct that poses a potential risk of physical injury, 16(b) poses an equally irresolvable question about whether an idealized ordinary version of an offense by its nature involves a substantial risk that force may be used. The language of 16(b) is in fact so similar to that of ACCA s residual clause that prior to Johnson, all circuit courts to have addressed the issue had imported the residual clause s now discredited ordinary case standard into their 16(b) jurisprudence. 11 The Dimaya Court expressly acknowledged that the 11 See United States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015) ( All other circuits to examine the issue have held the proper inquiry under 16(b) is whether the conduct encompassed by the elements of the offense raises a substantial risk the defendant may use physical force in the ordinary case, even though, at the margin, some violations of the statute may not raise such risk. ); United States v. Avila, 780 F.3d 1100, 1107 (4th Cir. 2014) (quoting James v. United States, 550 U.S. 192, 208 (2007)) (applying James s ordinary case standard to 16(b) analysis); United States v. Fish, 758 F.3d 1, (1st Cir. 2014) (applying ordinary case standard to 16(b)); Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013) (same); Van Don Nguyen v. Holder, 571 F.3d 524, 530 (6th Cir. 2009) (same); United States v. Sanchez-Garcia, 501 F.3d 1208, 1213 (10th 23 page 20

21 ordinary case framework was the proper mode of analysis for 16(b) cases. Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (quoting Rodriguez- Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013)) ( [C]ourts considering both 16(b) and the residual clause must decide what a usual or ordinary violation of the statute entails and then determine how great a risk of injury that ordinary case presents. ). The Dimaya Court therefore held that the Johnson Court s reasoning applies with equal force to the similar statutory language and identical mode of analysis used to define a crime of violence under 16(b). Id. at The Solicitor General of the United States also conceded as much in the course of litigating Johnson, acknowledging that 16(b) is subject to the same ordinary case analysis as ACCA s residual clause and that 16(b) is thus equally susceptible to a vagueness challenge: Although Section 16 refers to the risk that force will be used rather than that injury will occur, it is equally susceptible to petitioner s central objection to the residual clause: Like the ACCA, Section 16 requires a court to identify the ordinary case of the commission of the offense and to make a commonsense judgment about the risk of confrontations and other violent encounters. Supplemental Brief for the United States at 22 23, Johnson v. United States, 135 S. Ct (2015) (No ) (emphasis in original). Cir. 2007) (same); Perez-Munoz v. Keisler, 507 F.3d 357, (5th Cir. 2007) (same). 24 page 21

22 In short, inherent in 16(b) is the first key indeterminacy that the Johnson Court found in the residual clause because 16(b) s operation under the categorical approach similarly ties judicial assessment of risk not to real-world facts or statutory elements but to the abstract nature or ordinary case of a particular offense. Section 16(b) also contains the second of the key indeterminacies that combined to render ACCA s residual clause unconstitutionally vague. Similar to ACCA s residual clause, the statutory language by its nature, involves substantial risk contained in 16(b) is also inherently imprecise and leaves great uncertainty about the quantum of risk necessary for an offense to qualify as a crime of violence. Like the residual clause, 16(b) simply fails to provide enough guidance as to when risk is sufficiently substantial to fall under the statute. In fact, 16(b) provides even less guidance than ACCA s residual clause. If the enumerated offenses preceding ACCA s residual clause failed to provide sufficient guidance for courts quantum of risk analysis, the complete lack of enumerated crimes in 16(b) results in even less guidance, rendering 16(b) even more vague. See Dimaya v. Lynch, 803 F.3d 1110, 1118 n.13 (9th Cir. 2015). The Johnson Court lamented that [c]ommon sense has not even produced a consistent conception of the degree of risk posed by each of the [residual clause s] four enumerated crimes [and] there is no reason to expect it to fare any better with 25 page 22

23 respect to thousands of unenumerated crimes. Johnson, 135 S. Ct. at 2559 (emphasis added). Thus, because 16(b) forces courts to apply an imprecise substantial risk standard completely in a vacuum, devoid of comparable offenses to guide the analysis, it can only invite more arbitrary enforcement than ACCA s residual clause. Evidencing the inherent indeterminacy and potential for arbitrary enforcement associated with 16(b) s quantum of risk analysis, courts have disagreed about whether the commission of a particular crime carries substantial risk of violence within the meaning of 16(b). 12 This is unsurprising, as the ordinary definition of substantial is subjective and wide-ranging, varying from real; true; not seeming or imaginary to having strong substance; strong; stout. 13 Furthermore, even if there were one set definition of the word substantial, there is no guidance in it as to quantum, i.e. when that which is being measured reaches the requisite level to fall within the definition. 12 Compare De La Paz Sanchez v. Gonzales, 473 F.3d 133, 135 (5th Cir. 2006) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.1999)) (holding that a Texas conviction for unauthorized use of motor vehicle carries substantial risk of violence and is thus a crime of violence under 16(b)), with United States v. Sanchez-Garcia, 501 F.3d 1208, (10th Cir. 2007) (expressly declining to follow the Fifth Circuit s Galvan-Rodriguez and holding that a similar unauthorized use statute did not carry a substantial risk of violence and was therefore not a crime of violence under 16(b)). 13 See substantial, Webster's New Universal Unabridged Dictionary (2d ed. 1983). 26 page 23

24 Not only does the word substantial itself offer no guidance as to how much risk satisfies the statute, but the statutory language of 16(b) does not add any guidance to an already vague term. This Court has cited with approval a Fifth Circuit decision which stated that when analyzing the operative phrase substantial risk, it is not necessary that [the risk] must occur in every instance; rather a substantial risk requires a strong probability that the event, in this case the application of physical force during the commission of the crime, will occur. United States v. Alas-Castro, 184 F.3d 812, 813 (8th Cir. 1999) (alteration in original) (citing United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999)). Such probabilistic formulation defining substantial risk as requiring a strong probability that something will occur is an inherently indeterminate threshold akin to ACCA residual clause s serious potential risk standard. In short, as with ACCA, 16(b) requires courts to... determine by vague and uncertain standards when a risk is sufficiently substantial, leaving great uncertainty as to the quantum of risk it takes for a crime to fall under its ambit. Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). The combination of the aforementioned indeterminacies renders 16(b) unconstitutionally vague. As the Johnson Court made clear, and the Supreme Court reiterated in Welch v. United States, 136 S. Ct (2016), the indeterminacy of the wide ranging inquiry that results from applying an inherently imprecise 27 page 24

25 standard under the categorical approach, requir[ing] courts to assess the hypothetical risk posed by an abstract generic version of offenses, violates due process. 136 S. Ct. 1257, 1262 (2016) (holding that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review). As such, by invoking a categorical analysis to ask courts to imagine the abstract nature or ordinary case of a particular offense and then apply an imprecise substantial risk standard to determine when such abstraction reaches the requisite level of risk to fall under the statute, 16(b) combines the same key indeterminacies that rendered ACCA s residual clause unconstitutional. This Court should therefore declare 16(b) unconstitutional as well. Petitioner is mindful that the Sixth Circuit has recently held that Johnson does not compel the holding that 18 U.S.C. 924(c)(3)(B), a criminal firearm statute with nearly identical wording to 16(b), is unconstitutionally vague. 14 United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), reh g denied. However, apart from the fact that Taylor considered a different statute, this Court should decline to follow Taylor s reasoning because it is unpersuasive. The Sixth Circuit s 14 A case pending before this Court presents a void-for-vagueness challenge to 18 U.S.C. 924(c)(3)(B). Brief for Appellant at 6 7, United States v. Prickett, No (8th Cir. Dec. 3, 2015). The district court in Prickett held that Johnson was inapplicable to Prickett s case because a categorical analysis is not required for consistent application of 924(c)(3)(B) and that the statute is not unconstitutionally vague. United States v. Prickett, 2015 WL , at *2 3 (W.D. Ark. Oct. 8, 2015), appeal docketed. 28 page 25

26 holding is based largely on minor distinctions drawn between the text of 924(c)(3)(B) and ACCA s residual clause that are not material in light of the more fundamental characteristics these statutory provisions share in common. Both provisions require a categorical analysis of inherently imprecise text, resulting in two levels of indeterminacy as to future risk and making the analysis of that risk more hypothetical and unpredictable than the Constitution allows. In sum, and not withstanding Taylor s reasoning to the contrary, this Court should declare 16(b) unconstitutional because it combines the same two key indeterminacies as the residual clause, thereby den[ying] fair notice to defendants and invit[ing] arbitrary enforcement in violation of the Fifth Amendment s guarantee of due process of law. Johnson, 135 S. Ct. at The IJ and BIA decisions applying a constitutionally invalid statute to hold Xiong removable as an aggravated felon and preclude his application for cancellation were unlawful, violate his statutory right to apply for cancellation relief, 8 U.S.C. 1229b(a), and also violated his right to due process of law. 15 Remand is required. 15 Xiong notes this Court s decisions including, Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008), holding that a due process claim cannot be based on failure to receive discretionary relief. Xiong respectfully believes Guled is distinguishable from his case, where a facially unconstitutional statute has been applied to find him removable and ineligible for relief, that Guled is incorrect, and that he is entitled to due process, including determination of his removal case and eligibility to seek relief under constitutional statutes. E.g., Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) ( The availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right. ). 29 page 26

27 III. Alternatively, Even if 18 U.S.C. 16(b) Is Constitutional, a Conviction Under Minn. Stat , Subd. 2(a)(1) Is Categorically Not a Crime of Violence Under 16(b) Even if this Court were to conclude that 18 U.S.C. 16(b) is not void for vagueness, Xiong s conviction for second degree burglary is categorically not a crime of violence. In light of Johnson, which abandoned the ordinary case method for analyzing inherently probabilistic statutes, the BIA should instead have asked whether the minimum conduct required for a conviction of second degree burglary falls within the scope of the generic federal definition of a crime of violence at 16(b). Applying the correct minimum conduct approach, second degree burglary in Minnesota is categorically not a crime of violence, so the Court should reverse and remand. A. Minimum Conduct Is the Proper Categorical Analysis Under 16(b) After the Supreme Court Abrogated the Ordinary Case Approach in Johnson In determining whether a given conviction qualifies as a crime of violence under 18 U.S.C. 16(b), rather than looking at any facts underlying the conviction, courts must instead apply the categorical approach and look to the elements of the offense under which the defendant was prosecuted. Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). In James v. United States, the Supreme Court introduced the ordinary case analysis as the appropriate method for applying the categorical approach to the residual clause of 18 U.S.C. 924(e)(2)(B)(ii). 550 U.S. 192, (2007). 30 page 27

28 The BIA thereafter imported James s ordinary case analysis to its own application of 16(b), see, e.g., Matter of Francisco-Alonzo, 26 I. & N. Dec. 594, 596 (B.I.A. 2015), as have circuit courts. See supra note 11. The Supreme Court found the results produced by the ordinary case inquiry to be inherently speculative and inconsistent, and abrogated James s ordinary case approach in Johnson v. United States, 135 S. Ct. 2551, (2015). See Section II, supra. Because the Supreme Court overruled James and its ordinary case analysis in Johnson, the BIA should no longer apply ordinary case to 16(b). Instead, the BIA should have applied the method of categorical analysis the Supreme Court still employs, the minimum conduct approach exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678, (2013). Under this correct approach, the BIA should have presumed that Xiong s conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine[d] whether even those acts are encompassed by the generic federal offense. Id. (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). For a statute of conviction to not be considered a crime of violence under the minimum conduct approach, there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. Id. at 1685 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). To the extent the BIA ruled a question of burden of 31 page 28

29 proof altered the legal analysis in the context of this case that was legal error. Moncrieffe, 133 S. Ct. at 1687 ( Escaping aggravated felony treatment does not mean escaping deportation only mandatory removal. [H]aving been found not to be an aggravated felon, the noncitizen may seek relief... ) B. Under the Correct Minimum Conduct Test, Second- Degree Burglary Does Not Pose a Substantial Risk of Force Under the minimum conduct approach, the second degree burglary statute cannot be classified as a crime of violence under 16(b) because the minimum conduct that Minnesota prosecutes does not carry with it a substantial risk that physical force will be used. See Moncrieffe, 133 S. Ct. at Minnesota s second-degree burglary statute punishes a person who enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice.... Minn. Stat , Subd. 2(a). This statute is divisible because it sets out multiple alternative elements by which a defendant can accomplish the crime; the statute requires that the burglar enter a dwelling without consent and with intent to commit a crime or commits a crime while in the building. Minn. Stat , Subd. 2(a); see also Minnesota Jury Instruction Guides, Criminal (CRIMJIG), (2006). The with intent to commit a crime prong corresponds closely to the generic definition of burglary adopted in Taylor 32 page 29

30 No IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT KONG MENG XIONG, Petitioner, v. LORETTA E. LYNCH, ATTORNEY GENERAL, Respondent. ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS A BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, IMMIGRANT LAW CENTER OF MINNESOTA, HENNEPIN COUNTY PUBLIC DEFENDER S OFFICE AND IMMIGRANT LEGAL RESOURCE CENTER IN SUPPORT OF PETITIONER Sejal Zota National Immigration Project of the National Lawyers Guild 14 Beacon Street, Suite 602 Boston, MA (617) ext. 108 sejal@nipnlg.org Counsel for Amici Curiae 1 of 27 page 30 Appellate Case: Federal Immigration Page: Litigation 1 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

31 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P and 29(c), amici curiae National Immigration Project of the National Lawyers Guild, Immigrant Law Center of Minnesota, Hennepin County Public Defender s Office, and Immigrant Legal Resource Center state that no publicly held corporation owns 10% or more of the stock of any of the parties listed above, which are nonprofit organizations. Pursuant to Fed. R. App. P. 29(c)(5), amici curiae state that no counsel for the party authored this brief in whole or in part, and no party, party s counsel, or person or entity other than amici curiae and their counsel contributed money that was intended to fund preparing or submitting the brief. i 2 of 27 page 31 Appellate Case: Federal Immigration Page: Litigation 2 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

32 TABLE OF CONTENTS DISCLOSURE STATEMENT...i TABLE OF CONTENTS.ii TABLE OF AUTHORITIES..iii INTRODUCTION AND STATEMENT OF AMICI 1 ARGUMENT.4 I. Like the ACCA Residual Clause, 18 U.S.C. 16(b) Is Void for Vagueness 4 A. Void for vagueness principles apply to immigration law...4 B. Section 16(b) suffers from the same (or more significant) defects than the ACCA s residual clause 6 C. Any attempt by the Government to distinguish Section 16(b) from the residual clause fails The list of enumerated offenses preceding ACCA s residual clause was not material to the Supreme Court s decision Johnson Any minor difference in the statutes reach is immaterial Section 16(b) is as confusing as the ACCA s residual clause Courts have long treated the Residual Clause and Section 16(b) as functional equivalents.14 II. This Court Should Strike Section 16(b) Because It Is a Facially Vague Statute CONCLUSION...17 ii 3 of 27 page 32 Appellate Case: Federal Immigration Page: Litigation 3 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

33 TABLE OF AUTHORITIES Cases A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233 (1925) 4 Begay v. United States, 553 U.S. 137 (2008) , 14 Brecht v. Abrahamson, 507 U.S. 619 (1993)...10 Chambers v. United States, 555 U.S. 122 (2009) , 14 City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir.1993) 10, 11 Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015)...passim James v. United States, 550 U.S. 192 (2007) , 10, 14, 16 Jimenez-Gonzales v. Mukasey, 548 F.3d 557 (7th Cir. 2008) Johnson v. United States, 135 S. Ct (2015) passim Jordan v. DeGeorge, 341 U.S. 223 (1951)...5 Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967)..5 Kolender v. Lawson, 461 U.S. 352 (1983)...3 Leocal v. Ashcroft, 543 U.S. 1 (2004)..6, 10, 14 Matter of Fitzpatrick, 26 I&N Dec. 559 (BIA 2015).16 Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015)....8 Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).16 Matter of Singh, 25 I&N Dec. 67 (BIA 2012)....8, 15 iii 4 of 27 page 33 Appellate Case: Federal Immigration Page: Litigation 4 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

34 Mellouli v. Lynch, 135 S. Ct (2015) 5 Padilla v. Kentucky, 559 U.S. 356 (2010) 5 Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) Stephenson v. Davenport Community School Dist., 110 F.3d 1303 (8th Cir. 1997)...5 Sykes v. United States, 564 U.S. 1 (2011) Taylor v. United States, 495 U.S. 575 (1990) Turner. v. Rogers, 131 S. Ct (2011).10 United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. 1998).15 United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) United States v. Mayer, 560 F.3d 948 (9th Cir. 2009) 7 United States v. Reese, 92 U.S. 214 (1876) 16 United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011)...15 United States v. Taylor, 814 F.3d 340 (6th Cir. 2016)... 2 United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) passim United States v. Walker, 452 F.3d 723 (8th Cir. 2006)..15 United States v. Williams, 537 F.3d 969 (8th Cir. 2008) 10 Zadvydas v. Davis, 533 U.S. 678 (2001) iv 5 of 27 page 34 Appellate Case: Federal Immigration Page: Litigation 5 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

35 Statutes 8 U.S.C. 1101(a)(43)(F) U.S.C. 1227(a)(2)(E)(i) U.S.C. 16(b) passim 18 U.S.C. 924(e)(2)(B)(ii) Federal Rules Federal Rule of Appellate Procedure 29(b)...1 Federal Rule of Appellate Procedure 29(c)(5)..1 v 6 of 27 page 35 Appellate Case: Federal Immigration Page: Litigation 6 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED

36 INTRODUCTION AND STATEMENT OF AMICI The Board of Immigration Appeals ( BIA or Board ) found that Petitioner s conviction qualifies as a crime of violence under 18 U.S.C. 16(b), and that he is thereby deportable for an aggravated felony. It falls to this Court to decide whether the statutory language of 18 U.S.C. 16(b) is unconstitutionally vague under Johnson v. United States, 135 S. Ct (2015), in which the Supreme Court held that a parallel crime of violence definition is void for vagueness. The National Immigration Project of the National Lawyers Guild, Immigrant Law Center of Minnesota (ILCM), Hennepin County Public Defender s Office and Immigrant Legal Resource Center (ILRC) respectfully submit this brief to assist the Court with this question. See Fed. R. App. P. 29 (b). It is one of first impression, of exceptional importance, and presents the Court an opportunity to uphold fair process for noncitizens. Petitioner consents to amici appearing in this case. On March 28, 2016, counsel for Respondent, Anthony Payne, informed undersigned counsel that Respondent does not oppose this Motion if filed timely. In Johnson v. United States, 135 S. Ct. at , the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) 1 is unconstitutionally vague. The question here is whether Johnson applies to the 1 In pertinent part, the ACCA residual clause defines a violent felony as an offense that otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii). 1 7 of 27 page 36 Appellate Case: Federal Immigration Page: Litigation 7 Date - CRIME Filed: OF VIOLENCE 06/02/2016 LITIGATION Entry ID: PP slide 9 RESTRICTED