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Altin Bashkim Shuti v. Lynch

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Altin Bashkim Shuti v. Lynch

United States Court of Appeals for the Sixth Circuit

July 7, 2016, Decided

No. 15-3835

Facts:

Altin Bashkim Shuti, from Albania, entered the United States as a lawful permanent resident in October 2008. In May 2014, Shuti and a few of his high-school cohorts allegedly committed a “larceny of marijuana” and “in the course of that conduct possessed a shotgun.” Shuti pleaded guilty, for his part, to unarmed robbery, a felony defined under Michigan law as “larceny of any money or other property” accomplished by using “force or violence against any person who is present” or “assault[ing] or put[ting] the person in fear.” Mich. Comp. Laws § 750.530. The state trial court sentenced Shuti to at least two and a half years in prison and, several months later, the Department of Homeland Security initiated removal proceedings against him.

Immigration Case History:

Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, the Attorney General may remove certain classes of non-citizens from the U.S. Generally, a non-citizen may apply to immigration officials for discretionary relief from removal. But with aggravated felonies, removal is “virtually inevitable” The term “aggravated felony” is defined expansively under the INA. Among the numerous state and federal offenses that qualify, the immigration code lists “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). This, in turn, leads to the general criminal code, which defines a “crime of violence” 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.

Because the Immigration judge found that the second requirement of the criminal code had been met, the IJ in 2015, denied all discretionary relief and ordered Shuti removed to Albania.

The Board of Immigration Appeals (“BIA”) affirmed. The BIA first determined that unarmed robbery was “categorically a crime of violence” as defined in 18 U.S.C. § 16(b). But while the appeal was pending, the Supreme Court handed down Johnson v. United States (in which the Supreme Court held the Armed Career Criminal Act’s residual definition of “violent felony” void for vagueness) and Shuti argued that the INA’s definition of crime of violence was unconstitutionally vague in light of this intervening precedent. The BIA responded concluding that the void-for-vagueness doctrine simply does not apply to “civil” deportation proceedings.

The Sixth Circuit, granted the petition for review, vacated the order of removal is vacated, and remanded it to the BIA for further proceedings consistent with the Sixth Circuit opinion.

Implications:

  • The Sixth Circuit found the INA’s definition of “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), in combination with the criminal statute cross-referenced there, 18 U.S.C. § 16(b), to be unconstitutionally vague.
  • The precedent set by the Supreme Court in Johnson. F18 U.S.C. § 924(e)(2)(B)(ii) is now being applied to immigration by this Sixth Circuit decision and can be viewed as a persuasive opinion for other circuit court cases.
  • This is a big win against the dangers of a double standard being applied to immigration cases. In contrast to the BIA’s decision, the Sixth Circuit decision is a clear Application of the Fifth Amendment’s prohibition of vague laws is “applicable to civil as well as criminal actions.” If anything, it is “well established” that the Fifth Amendment “entitles” non-citizens to due process in removal proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993).
    Similar decisions had been made in the Seventh and Ninth Circuits so it is likely that the issue will be continue to be addressed even in the Supreme Court.

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