Recently, the Supreme Court issued a decision that struck down a provision of the Immigration and Nationality Act (INA) §101(a)(43)(F) that requires the deportation of non-citizens who have been convicted of a “crime of violence.” The case, Sessions v. Dimaya, resulted in a 5-4 majority vote, holding that the federal statute was impermissibly vague and, therefore, unenforceable. Therefore, the court’s decision limits the application of aggravated felony crime of violence removal ground and in the separate crime of domestic violence removal ground for some common New York offenses that do not have an express force element.

What is the background of Sessions v. Dimaya?

James Garcia Dimaya is a lawful permanent resident (LPR) who was placed in removal proceedings following two convictions of burglary under a California statute. Under the INA’s crime of violence statute, an immigration judge and the Board of Immigration Appeals (BIA) found that Mr. Dimaya’s burglary convictions constituted aggravated felonies. Specifically, the BIA found that the convictions fit the residual clause subsection (b) definition of crimes of violence

What provision of the crimes of violence statute was struck down?

Subsection (b) of 18 U.S.C. §16 “crime of violence” definition, as cross-referenced in the INA “aggravated felony” was struck down by the Sessions v. Dimaya decision. This provision defined the aggravated felony ground of deportation and removal for a crime of violence.

What provision of the crimes of violence statute is still intact?

Subsection (a) of 18 U.S.C. §16, also known as the “elements clause,” remains intact. Thus, not all crimes of violence will no longer be deemed aggravated felonies.

How does Sessions v. Dimaya impact immigration consequences for New York State and states with similar offenses?

Sessions v. Dimaya struck down a significant crime-based ground for removal. As a result of the decision, only the offenses that have an express force element can be deemed a crime of violence for aggravated felony or crime of violence. Certain common New York offenses without an express force element will no longer qualify as “crimes of violence.”

The Dimaya decision may be applied to the following common New York offenses:

• Certain assault and related offenses
• Certain homicide and related offenses
• Certain sex offenses
• Certain kidnapping, coercion, and related offenses
• Certain burglary and related offenses
• Certain criminal mischief and related offenses
• Certain arson offenses
• Certain larceny offenses
• Criminal contempt in the first degree
• Certain prostitution offenses
• Aggravated harassment in the first degree
• Certain firearms and other dangerous weapons offenses

How does Sessions v. Dimaya impact immigration consequences for domestic violence offense?

In particular, convictions for various domestic violence offense may no longer be deportable. Each statute and offense must be examined in light of Sessions v Dimaya.

Are these changes permanent?

The Dimaya decision can be used by non-citizens to defeat a crime of violence charge, unless and until Congress passes legislation to continue to reach New York offenses that do not have an express force element. Following the decision, President Trump tweeted that “Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons.”

Today, non-citizens who commit criminal offenses may face harsh immigration consequences, including deportation, detention without bond, or being denied a visa, naturalization, or re-entry into the United States. The New Jersey and New York immigration lawyers at Bretz & Coven, LLP have over 20 years of experience advising non-citizen criminal defendants and their lawyers. The firm’s attorneys have a long history of defending clients in deportation and removal matters, as well as applications for waivers, in very complicated cases. To schedule a consultation, contact our New York City immigration law office at (212) 267-2555.