Tenth Circuit Holds that 16(b)’s Residual Clause is Unconstitutionally Vague

By: Mackenzie Shields

In Golicov v. Lynch, No. 16-9530 (10th Cir. 2016), the Tenth Circuit decided whether INA’s definition of “crime of violence,” which expressly incorporated § 16(b)’s definition of the same term, was unconstitutionally vague in light of the Supreme Court’s decision in Johnson. Following the precedent set by the Sixth, Seventh, and Ninth Circuit, the Tenth Circuit held that 18 U.S.C. § 16(b) was not meaningfully distinguishable from the ACCA’s residual clause and thus, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(f), must be deemed unconstitutional in light of Johnson.

The following facts underlined the proceedings. Petitioner Constantine Golicov, a lawful permanent resident from Moldova, was convicted in Utah state court of the third-degree felony of failing to stop at a police officer’s command, in violation of Utah Code Ann. § 41-6a-210(1)(a)(i), and sentenced to five years in prison. While serving his prison term, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under § 227(a)(2)(A)(iii) of the INA, because his Utah conviction constituted an aggravated felony under the INA.

The INA outlines several “classes of deportable aliens,” all of which “shall, upon the order of the Attorney General, be removed.” 8 U.S.C. § 1227(a). One class includes “[a]ny alien who is convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of “aggravated felony” is expressly defined in the INA and includes, “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence” as defined in 18 U.S.C. § 16 includes: (b) any other offense that is a felony and that, by its nature, involved a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

After reviewing the precedent of Johnson v. United States, 135 S. Ct 2551 (2015), and the particular facts of the case, the Tenth Circuit agreed with the petitioner that the vagueness doctrine extended to deportation proceedings and, therefore, the statue’s “crime of violence” definition was unconstitutionally vague since, “[f]rom a non-citizen’s perspective, this provision substitutes guesswork and caprice for fair notice and predictability.” (quoting Shuti v. Lynch, 828 F.3d 440, 450 (6th Cir. 2016)). The order of removal was vacated and the case remanded to the BIA for further proceedings consistence with the opinion.