On Wednesday, October 28th, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief with the Board of Immigration Appeals (BIA) (attached here) on behalf of itself and its client, the Federation for American Immigration Reform (FAIR), that addressed whether the BIA could continue to use the “ordinary case” method to analyze aggravated felonies that fall within 8 U.S.C. § 16 in light of the Supreme Court’s recent decision that found similar language in 8 U.S.C. § 924(e)(2)(B)(ii) unconstitutionally void for vagueness.
IRLI and FAIR advised the BIA to continue to use the “ordinary case” method regardless of the Supreme Court’s decision in Johnson v. United States, which voided the residual clause of 8 U.S.C. § 924(e)(2)(B). The “ordinary case” method as applied to section 16(b) asks whether the elements of the offense involve misconduct that would ordinarily lead to physical force being used against another person or property. IRLI and FAIR noted that when the Supreme Court finds a statute constitutional due to vagueness of language, it does not require a court to automatically void the method of analysis used by a court to analyze the statutory language. Additionally, the infirmities of section 924(e)(2)(B)’s language that the Supreme Court found void for vagueness were not present in section 16(b)’s language. Thus, the Supreme Court’s decision in Johnson did not affect the continued applicability of the “ordinary case” method to section 16(b).
While the U.S. Court of Appeals for the Ninth Circuit recently voided section 16(b) due to the Supreme Court’s decision in Johnson, IRLI and FAIR provided an in-depth textual analysis to show why the Ninth Circuit’s decision was completely misguided. For example, IRLI and FAIR pointed out that the Ninth Circuit came to conclusions without providing any analysis. Also, while its holding mirrored that of the Supreme Court’s decision in Johnson, the Ninth Circuit in fact contradicted the Supreme Court’s analysis several times. IRLI and FAIR systematically provided the textual support needed to find that language of section 16(b) valid and also to find that the “ordinary case” method was the proper method of analysis for the language. To find otherwise would create another loophole in our immigration laws to allow individuals to avoid the consequences of misconduct.