The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.
Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”
On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.
The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.
The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.
The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.