Orrick Appellate Team Scores Major Immigrant Rights Win in the U.S. Supreme Court


Setting a significant precedent for both immigration proceedings and criminal prosecutions, the U.S. Supreme Court today sided with our Supreme Court and Appellate team and struck down a federal law that virtually guaranteed the deportation of non-citizens deemed to have committed “crimes of violence.” In a 5-4 opinion in Sessions v. Dimaya, the court agreed with our argument that the statute is unconstitutionally vague and violates the due process rights of immigrants.

Led by partner Josh Rosenkranz, our pro bono team represented James Dimaya, a Philippine citizen who has been a lawful permanent resident of the United States for 25 years, since he was 13 years old.  After he pleaded guilty to burglary in California, the government sought to revoke his green card and have him deported from the country. We challenged the “crime of violence” provision for ceding too much authority to immigration officials to make arbitrary and often unpredictable decisions on who should be deported under the statute, which has been invoked to justify thousands of questionable deportations. This law threatened many non-citizens, including those like Dimaya who lived in the U.S. for decades as lawful permanent residents, with deportation for “crimes of violence,” even though their actual conduct involved no violence or meaningful risk of violence.

The Supreme Court majority, in a decision written by Justice Elena Kagan, agreed that the statute invited arbitrary decisions by immigration authorities. The ruling specifically sided with our argument that the law was unconstitutional under the court’s 2015 decision in Johnson v. United States, which invalidated a very similar provision in the Armed Career Criminal Act.

The case was originally argued before the Supreme Court in January 2017, when the court had just eight members. With indications the court was divided 4-4, the justices reset the case for arguments this term with addition of Justice Neil Gorsuch, who wound up providing the pivotal vote in today’s ruling. Though Justice Gorsuch joined most of Justice Kagan’s majority opinion, he wrote separately to argue for an even broader application of the constitutional vagueness doctrine at the heart of the case. “Vague laws invite arbitrary power,” Justice Gorsuch observed.

Josh noted that Justice Gorsuch demonstrated that due process protections are not confined to a strict liberal v. conservative outcome.

“The Supreme Court delivered a resounding message today: You can’t banish a person from his home and family without clear lines, announced up front,” Josh said. “Congress cannot write a mushy standard that leaves it to unaccountable immigration officials and judges to make it up as they go along. This decision is of enormous consequence, striking down a flawed law that applies in a vast range of criminal and immigration cases and which has resulted in many thousands of immigrants being deported for decades in violation of their due process rights.”

The decision received widespread media attention, including in The New York Times, Washington Post, CNN and Reuters.

In addition to Josh, the Orrick appellate team included partner Brian Goldman, Senior Counsel Tom Bondy and associates Naomi Mower, Randall Smith, and Ned Hirschfeld. We also worked closely with co-counsel Andrew Knapp of Southwestern Law School.