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Sessions v. Dimaya

United States Supreme Court

April 17, 2018

JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, PETITIONER
v.
JAMES GARCIA DIMAYA

          Argued January 17, 2017

          Reargued October 2, 2017

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

         The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an "aggravated felony" after entering the United States will be deported. See 8 U.S.C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes "a crime of violence (as defined in [18 U.S.C. §16] . . .) for which the term of imprisonment [is] at least one year." §1101(a)(43)(f). Section 16's definition of a crime of violence is divided into two clauses-often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a "crime of violence" as "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." To decide whether a person's conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether "the particular facts" underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U.S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether "the ordinary case" of an offense poses the requisite risk, James v. United States, 550 U.S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a "crime of violence" under §16(b). While Dimaya's appeal was pending in the Ninth Circuit, this Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)-defining "violent felony" as any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another, " 18 U.S.C. §924(e)(2)(B)-was unconstitutionally "void for vagueness" under the Fifth Amendment's Due Process Clause. Johnson v. United States, 576 U.S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

         Held: The judgment is affirmed.

         803 F.3d 1110, affirmed.

          JUSTICE KAGAN delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, concluding that §16's residual clause is unconstitutionally vague. Pp. 6-11, 16-25.

         (a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA's residual clause-an ordinary-case requirement and an ill-defined risk threshold-combined in the same constitutionally problematic way. To begin, ACCA's residual clause created "grave uncertainty about how to estimate the risk posed by a crime" because it "tie[d] the judicial assessment of risk" to a speculative hypothesis about the crime's "ordinary case, " but provided no guidance on how to figure out what that ordinary case was. 576 U.S., at ___. Compounding that uncertainty, ACCA's residual clause layered an imprecise "serious potential risk" standard on top of the requisite "ordinary case" inquiry. The combination of "indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony, " id., at ___, resulted in "more unpredictability and arbitrariness than the Due Process Clause tolerates, " id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA's residual clause, §16(b) calls for a court to identify a crime's "ordinary case" in order to measure the crime's risk but "offers no reliable way" to discern what the ordinary version of any offense looks like. Id., at ___. And its "substantial risk" threshold is no more determinate than ACCA's "serious potential risk" standard. Thus, the same "[t]wo features" that "conspire[d] to make" ACCA's residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6-11.

         (b) The Government identifies three textual discrepancies between ACCA's residual clause and § 16(b) that it claims make § 16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16-24.

         (1) First, the Government argues that §16(b)'s express requirement (absent from ACCA) that the risk arise from acts taken "in the course of committing the offense, " serves as a "temporal restriction"- in other words, a court applying § 16(b) may not "consider risks arising after1' the offense's commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any offense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the temporal language, a court applying the ordinary case approach, whether in §16's or ACCAs residual clause, would do the same thing-ask what usually happens when a crime is committed. The phrase "in the course of makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

         Second, the Government says that the §16(b) inquiry, which focuses on the risk of "physical force, " "trains solely" on the conduct typically involved in a crime. Brief for Petitioner 36. In contrast, ACCAs residual clause asked about the risk of "physical injury, " requiring a second inquiry into a speculative "chain of causation that could possibly result in a victim's injury." Ibid. However, this Court has made clear that "physical force" means "force capable of causing physical pain or injury." Johnson v. United States, 559 U.S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Thus, the force/injury distinction does not clarify a court's analysis of whether a crime qualifies as violent.

         Third, the Government notes that § 16(b) avoids the vagueness of ACCAs residual clause because it is not preceded by a "confusing list of exemplar crimes." Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCAs residual clause meaning. But to say that they failed to resolve the clause's vagueness is hardly to say they caused the problem. Pp. 16- 21.

         (2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)'s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two § 16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21-24.

          Justice Kagan, joined by Justice Ginsburg, Justice Breyer, and JUSTICE SOTOMAYOR, concluded in Parts II and IV-A:

         (a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed because the removal of an alien is a civil matter rather than a criminal case. This Court's precedent forecloses that argument. In Jordan v. De George, 341 U.S. 223, the Court considered what vagueness standard applied in removal cases and concluded that, "in view of the grave nature of deportation, " the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deportation is "a particularly severe penalty, " which may be of greater concern to a convicted alien than "any potential jail sentence." Jae Lee v. United States, 582 U.S. ___, ___. Pp. 4-6.

         (b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be abandoned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again "has not asked [the Court] to abandon the categorical approach in residual-clause cases, " suggesting the fact-based approach is an untenable interpretation of §16(b). 576 U.S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)'s text demands a categorical approach. This Court's decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to "the statute of conviction, not to the facts of each defendant's conduct." Taylor v. United States, 495 U.S. 575, 601. And the words "by its nature" in § 16(b) even more clearly compel an inquiry into an offense's normal and characteristic quality-that is, what the offense ordinarily entails. Finally, given the daunting difficulties of accurately "re-construct[ing], " often many years later, "the conduct underlying [a] conviction, " the conduct-based approach's "utter impracticability"- and associated inequities-is as great in § 16(b) as in ACCA. Johnson, 576 U.S., at ___. Pp. 12-15.

          JUSTICE Gorsuch, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U.S., concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government's argument that a less-than-fair-notice standard should apply where (as here) a person faces only civil, not criminal, consequences from a statute's operation is unavailing. In the criminal context, the law generally must afford "ordinary people . . . fair notice of the conduct it punishes, " id., at, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving either the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1-19.

          KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opinion with respect to Parts II and IV-A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

          KAGAN JUSTICE.

          JUSTICE Kagan announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV-B, and V, and an opinion with respect to Parts II and IV-A, in which JUSTICE GINSBURG, JUSTICE Breyer, and Justice Sotomayor join.

         Three Terms ago, in Johnson v. United States, this Court held that part of a federal law's definition of "violent felony" was impermissibly vague. See 576 U.S. (2015). The question in this case is whether a similarly worded clause in a statute's definition of "crime of violence" suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

         I

         The Immigration and Nationality Act (INA) renders deportable any alien convicted of an "aggravated felony" after entering the United States. 8 U.S.C. §1227(a)(2)(A)(iii). Such an alien is also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. See §§1229b(a)(3), (b)(1)(C). Accordingly, removal is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here.

         The INA defines "aggravated felony" by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes. §1101(a)(43); see Luna Torres v. Lynch, 578 U.S.___, ___ (2016) (slip op., at 2). According to one item on that long list, an aggravated felony includes "a crime of violence (as defined in section 16 of title 18 ...) for which the term of imprisonment [is] at least one year." §1101(a)(43)(F). The specified statute, 18 U.S.C. §16, provides the federal criminal code's definition of "crime of violence." Its two parts, often known as the elements clause and the residual clause, cover:

"(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."

         Section 16(b), the residual clause, is the part of the statute at issue in this case.

         To decide whether a person's conviction "falls within the ambit" of that clause, courts use a distinctive form of what we have called the categorical approach. Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). The question, we have explained, is not whether "the particular facts" underlying a conviction posed the substantial risk that § 16(b) demands. Ibid. Neither is the question whether the statutory elements of a crime require (or entail) the creation of such a risk in each case that the crime covers.[1] The § 16(b) inquiry instead turns on the "nature of the offense" generally speaking. Ibid, (referring to §16(b)'s "by its nature" language). More precisely, § 16(b) requires a court to ask whether "the ordinary case" of an offense poses the requisite risk. James v. United States, 550 U.S. 192, 208 (2007); see infra, at 7.

         In the case before us, Immigration Judges employed that analysis to conclude that respondent James Dimaya is deportable as an aggravated felon. A native of the Philippines, Dimaya has resided lawfully in the United States since 1992. But he has not always acted lawfully during that time. Twice, Dimaya was convicted of first-degree burglary under California law. See Cal. Penal Code Ann. §§459, 460(a). Following his second offense, the Government initiated a removal proceeding against him. Both an Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary is a "crime of violence" under § 16(b). "[B]y its nature, " the Board reasoned, the offense "carries a substantial risk of the use of force." App. to Pet. for Cert. 46a. Dimaya sought review in the Court of Appeals for the Ninth Circuit.

         While his appeal was pending, this Court held unconstitutional part of the definition of "violent felony" in the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). ACCA prescribes a 15-year mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for a "violent felony." §924(e)(1). The definition of that statutory term goes as follows:

"any crime punishable by imprisonment for a term exceeding one year . . . that-
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or "
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." §924(e)(2)(B) (emphasis added).

         The italicized portion of that definition (like the similar language of § 16(b)) came to be known as the statute's residual clause. In Johnson v. United States, the Court declared that clause "void for vagueness" under the Fifth Amendment's Due Process Clause. 576 U.S., at ___ - ___ (slip op., at 13-14).

         Relying on Johnson, the Ninth Circuit held that § 16(b), as incorporated into the INA, was also unconstitutionally vague, and accordingly ruled in Dimaya's favor. See Di-maya v. Lynch, 803 F.3d 1110, 1120 (2015). Two other Circuits reached the same conclusion, but a third distinguished ACCA's residual clause from §16's.[2] We granted certiorari to resolve the conflict. Lynch v. Dimaya, 579 U.S.___ (2016).

         II

         "The prohibition of vagueness in criminal statutes, " our decision in Johnson explained, is an "essential" of due process, required by both "ordinary notions of fair play and the settled rules of law." 576 U.S., at___ (slip op., at 4) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). The void-for-vagueness doctrine, as we have called it, guarantees that ordinary people have "fair notice" of the conduct a statute proscribes. Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). And the doctrine guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges. See Kolender v. Lawson, 461 U.S. 352, 357-358 (1983). In that sense, the doctrine is a corollary of the separation of powers-requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not. Cf. id., at 358, n. 7 ("[I]f the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, [it would] substitute the judicial for the legislative department" (internal quotation marks omitted)).

         The Government argues that a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case. See Brief for Petitioner 13-15. As the Government notes, this Court has stated that "[t]he degree of vagueness that the Constitution [allows] depends in part on the nature of the enactment": In particular, the Court has "expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499 (1982). The removal of an alien is a civil matter. See Arizona v. United States, 567 U.S. 387, 396 (2012). Hence, the Government claims, the need for clarity is not so strong; even a law too vague to support a conviction or sentence may be good enough to sustain a deportation order. See Brief for Petitioner 25-26.

         But this Court's precedent forecloses that argument, because we long ago held that the most exacting vagueness standard should apply in removal cases. In Jordan v. De George, we considered whether a provision of immigration law making an alien deportable if convicted of a "crime involving moral turpitude" was "sufficiently definite." 341 U.S. 223, 229 (1951). That provision, we noted, "is not a criminal statute" (as § 16(b) actually is). Id., at 231; supra, at 1-2. Still, we chose to test (and ultimately uphold) it "under the established criteria of the 'void for vagueness' doctrine" applicable to criminal laws. 341 U.S., at 231. That approach was demanded, we explained, "in view of the grave nature of deportation, " ibid.-a "drastic measure, " often amounting to lifelong "banishment or exile, " ibid, (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).

         Nothing in the ensuing years calls that reasoning into question. To the contrary, this Court has reiterated that deportation is "a particularly severe penalty, " which may be of greater concern to a convicted alien than "any potential jail sentence." Jae Lee v. United States, 582 U.S. ___, ___ (2017) (slip op., at 11) (quoting Padilla v. Kentucky, 559 U.S. 356, 365, 368 (2010)). And we have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more "intimately related to the criminal process." Chaidez v. United States, 568 U.S. 342, 352 (2013) (quoting Padilla, 559 U.S., at 365). What follows, as Jordan recognized, is the use of the same standard in the two settings.

         For that reason, the Government cannot take refuge in a more permissive form of the void-for-vagueness doctrine than the one Johnson employed. To salvage §16's residual clause, even for use in immigration hearings, the Government must instead persuade us that it is materially clearer than its now-invalidated ACCA counterpart. That is the issue we next address, as guided by Johnsons analysis.

         III

         Johnson is a straightforward decision, with equally straightforward application here. Its principal section begins as follows: "Two features of [ACCA's] residual clause conspire to make it unconstitutionally vague." 576 U.S., at ___(slip op., at 5). The opinion then identifies each of those features and explains how their joinder produced "hopeless indeterminacy, " inconsistent with due process. Id., at ___ (slip op., at 7). And with that reasoning, Johnson effectively resolved the case now before us. For §16's residual clause has the same two features as ACCA's, combined in the same constitutionally problematic way. Consider those two, just as Johnson described them:

         "In the first place, " Johnson explained, ACCA's residual clause created "grave uncertainty about how to estimate the risk posed by a crime" because it "tie[d] the judicial assessment of risk" to a hypothesis about the crime's "ordinary case." Id., at ___ (slip op., at 5). Under the clause, a court focused on neither the "real-world facts" nor the bare "statutory elements" of an offense. Ibid. Instead, a court was supposed to "imagine" an "idealized ordinary case of the crime"-or otherwise put, the court had to identify the "kind of conduct the 'ordinary case' of a crime involves." Ibid. But how, Johnson asked, should a court figure that out? By using a "statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?" Ibid, (internal quotation marks omitted). ACCA provided no guidance, rendering judicial accounts of the "ordinary case" wholly "speculative." Ibid. Johnson gave as its prime example the crime of attempted burglary. One judge, contemplating the "ordinary case, " would imagine the "violent encounter" apt to ensue when a "would-be burglar [was] spotted by a police officer [or] private security guard." Id., at ___ - ___ (slip op., at 5-6). Another judge would conclude that "any confrontation" was more "likely to consist of [an observer's] yelling 'Who's there?' . . . and the burglar's running away." Id., at ___ (slip op., at 6). But how could either judge really know? "The residual clause, " Johnson summarized, "offer[ed] no reliable way" to discern what the ordinary version of any offense looked like. Ibid. And without that, no one could tell how much risk the offense generally posed.

         Compounding that first uncertainty, Johnson continued, was a second: ACCA's residual clause left unclear what threshold level of risk made any given crime a "violent felony." See ibid. The Court emphasized that this feature alone would not have violated the void-for-vagueness doctrine: Many perfectly constitutional statutes use imprecise terms like "serious potential risk" (as in ACCA's residual clause) or "substantial risk" (as in §16's). The problem came from layering such a standard on top of the requisite "ordinary case" inquiry. As the Court explained:

"[W]e do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree[.] The residual clause, however, requires application of the 'serious potential risk' standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain[, ] this abstract inquiry offers significantly less predictability than one that deals with the actual . . . facts." Id., at ___ (slip op., at 12) (some internal quotation marks, citations, and alterations omitted).

         So much less predictability, in fact, that ACCA's residual clause could not pass constitutional muster. As the Court again put the point, in the punch line of its decision: "By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause" violates the guarantee of due process. Id., at ___ (slip op., at 6).[3]

         Section 16's residual clause violates that promise in just the same way. To begin where Johnson did, § 16(b) also calls for a court to identify a crime's "ordinary case" in order to measure the crime's risk. The Government explicitly acknowledges that point here. See Brief for Petitioner 11 ("Section 16(b), like [ACCA's] residual clause, requires a court to assess the risk posed by the ordinary case of a particular offense"). And indeed, the Government's briefing in Johnson warned us about that likeness, observing that § 16(b) would be "equally susceptible to [an] objection" that focused on the problems of positing a crime's ordinary case. Supp. Brief for Respondent, O. T. 2014, No. 13-7120, pp. 22-23. Nothing in §16(b) helps courts to perform that task, just as nothing in ACCA did. We can as well repeat here what we asked in Johnson: How does one go about divining the conduct entailed in a crime's ordinary case? Statistical analyses? Surveys? Experts? Google? Gut instinct? See Johnson, 576 U.S., at ___ (slip op., at 5); supra, at 7; post, at 16-17 (GORSUCH, J., concurring in part and concurring in judgment). And we can as well reiterate Johnsons example: In the ordinary case of attempted burglary, is the would-be culprit spotted and confronted, or scared off by a yell? See post, at 16 (opinion of GORSUCH, J.) (offering other knotty examples). Once again, the questions have no good answers; the "ordinary case" remains, as Johnson described it, an excessively "speculative, " essentially inscrutable thing. 576 U.S., at ___ (slip op., at 5); accord post, at 27 (THOMAS, J., dissenting).[4]

         And § 16(b) also possesses the second fatal feature of ACCA's residual clause: uncertainty about the level of risk that makes a crime "violent." In ACCA, that threshold was "serious potential risk"; in § 16(b), it is "substantial risk." See supra, at 2, 4. But the Government does not argue that the latter formulation is any more determinate than the former, and for good reason. As THE CHIEF Justice's valiant attempt to do so shows, that would be slicing the baloney mighty thin. See post, at 5-6 (dissenting opinion). And indeed, Johnson as much as equated the two phrases: Return to the block quote above, and note how Johnson-as though anticipating this case-refers to them interchangeably, as alike examples of imprecise "qualitative standard[s]." See supra, at 8; 576 U.S., at ___ (slip op., at 12). Once again, the point is not that such a non-numeric standard is alone problematic: In Johnsons words, "we do not doubt" the constitutionality of applying §16(b)'s "substantial risk [standard] to real-world conduct." Id., at ___(slip op., at 12) (internal quotation marks omitted). The difficulty comes, in §16's residual clause just as in ACCA's, from applying such a standard to "a judge-imagined abstraction"-i.e., "an idealized ordinary case of the crime." Id., at ___, ___(slip op., at 6, 12). It is then that the standard ceases to work in a way consistent with due process.

         In sum, § 16(b) has the same "[t]wo features" that "conspire[d] to make [ACCA's residual clause] unconstitutionally vague." Id., at___ (slip op., at 5). It too "requires a court to picture the kind of conduct that the crime involves in 'the ordinary case, ' and to judge whether that abstraction presents" some not-well-specified-yet-sufficiently-large degree of risk. Id., at___ (slip op., at 4). The result is that § 16(b) produces, just as ACCA's residual clause did, "more unpredictability and arbitrariness than the Due Process Clause tolerates." Id., at___ (slip op., at 6).

         IV

         The Government and dissents offer two fundamentally different accounts of how § 16(b) can escape unscathed from our decision in Johnson. JUSTICE THOMAS accepts that the ordinary-case inquiry makes § 16(b) "impossible to apply." Post, at 27. His solution is to overthrow our historic understanding of the statute: We should now read § 16(b), he says, to ask about the risk posed by a particular defendant's particular conduct. In contrast, the Government, joined by THE CHIEF JUSTICE, accepts that § 16(b), as long interpreted, demands a categorical approach, rather than a case-specific one. They argue only that "distinctive textual features" of §16's residual clause make applying it "more predictable" than its ACCA counterpart. Brief for Petitioner 28, 29. We disagree with both arguments.

         A

         The essentials of Justice Thomas's position go as follows. Section 16(b), he says, cannot have one meaning, but could have one of two others. See post, at 27. The provision cannot demand an inquiry merely into the elements of a crime, because that is the province of § 16(a). See supra, at 2 (setting out §16(a)'s text). But that still leaves a pair of options: the categorical, ordinary-case approach and the "underlying-conduct approach, " which asks about the specific way in which a defendant committed a crime. Post, at 25. According to JUSTICE THOMAS, each option is textually viable (although he gives a slight nod to the latter based on §16(b)'s use of the word "involves"). See post, at 24-26. What tips the scales is that only one-the conduct approach-is at all "workable." Post, at 27. The difficulties of the ordinary-case inquiry, Justice Thomas rightly observes, underlie this Court's view that § 16(b) is too vague. So abandon that inquiry, Justice Thomas urges. After all, he reasons, it is the Court's "plain duty, " under the constitutional avoidance canon, to adopt any reasonable construction of a statute that escapes constitutional problems. Post, at 28-29 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909)).

         For anyone who has read Johnson, that argument will ring a bell. The dissent there issued the same invitation, based on much the same reasoning, to jettison the categorical approach in residual-clause cases. 576 U.S., at___ - ___(slip op., at 9-13) (opinion of ALITO, J.). The Court declined to do so. It first noted that the Government had not asked us to switch to a fact-based inquiry. It then observed that the Court "had good reasons" for originally adopting the categorical approach, based partly on ACCA's text (which, by the way, uses the word "involves" identically) and partly on the "utter impracticability" of the alternative. Id., at___ (slip op., at 13) (majority opinion). "The only plausible interpretation" of ACCA's residual clause, we concluded, "requires use of the categorical approach"- even if that approach could not in the end satisfy constitutional standards. Ibid, (internal quotation marks and alteration omitted).

         The same is true here-except more so. To begin where Johnson did, the Government once again "has not asked us to abandon the categorical approach in residual-clause cases." Ibid. To the contrary, and as already noted, the Government has conceded at every step the correctness of that statutory construction. See supra, at 9. And this time, the Government's decision is even more noteworthy than before-precisely because the Johnson dissent laid out the opposite view, presenting it in prepackaged form for the Government to take off the shelf and use in the § 16(b) context. Of course, we are not foreclosed from going down Justice Thomas's path just because the Government has not done so. But we find it significant that the Government cannot bring itself to say that the fact-based approach JUSTICE THOMAS proposes is a tenable interpretation of §16's residual clause.

         Perhaps one reason for the Government's reluctance is that such an approach would generate its own constitutional questions. As JUSTICE THOMAS relates, post, at 22, 28, this Court adopted the categorical approach in part to "avoid[ ] the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries." Descamps v. United States, 570 U.S. 254, 267 (2013). Justice Thomas thinks that issue need not detain us here because "the right of trial by jury ha[s] no application in a removal proceeding." Post, at 28 (internal quotation marks omitted). But although this particular case involves removal, § 16(b) is a criminal statute, with criminal sentencing consequences. See supra, at 2. And this Court has held (it could hardly have done otherwise) that "we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context." Leocal, 543 U.S., at 12, n. 8. So Justice Thomas's suggestion would merely ping-pong us from one constitutional issue to another. And that means the avoidance canon cannot serve, as he would like, as the interpretive tie breaker.

         In any event, §16(b)'s text creates no draw: Best read, it demands a categorical approach. Our decisions have consistently understood language in the residual clauses of both ACCA and §16 to refer to "the statute of conviction, not to the facts of each defendant's conduct." Taylor v. United States, 495 U.S. 575, 601 (1990); see Leocal, 543 U.S., at 7 (Section 16 "directs our focus to the 'offense' of conviction . . . rather than to the particular facts"). Simple references to a "conviction, " "felony, " or "offense, " we have stated, are "read naturally" to denote the "crime as generally committed." Nijhawan v. Holder, 557 U.S. 29, 34 (2009); see Leocal, 543 U.S., at 7; Johnson, 576 U.S., at ___(slip op., at 13). And the words "by its nature" in § 16(b) make that meaning all the clearer. The statute, recall, directs courts to consider whether an offense, by its nature, poses the requisite risk of force. An offense's "nature" means its "normal and characteristic quality." Webster's Third New International Dictionary 1507 (2002). So § 16(b) tells courts to figure out what an offense normally-or, as we have repeatedly said, "ordinarily"- entails, not what happened to occur on one occasion. And the same conclusion follows if we pay attention to language that is missing from §16(b). As we have observed in the ACCA context, the absence of terms alluding to a crime's circumstances, or its commission, makes a fact-based interpretation an uncomfortable fit. See Descamps, 570 U.S., at 267. If Congress had wanted judges to look into a felon's actual conduct, "it presumably would have said so; other statutes, in other contexts, speak in just that way." Id., at 267-268.[5] The upshot of all this textual evidence is that §16's residual clause-like ACCA's, except still more plainly-has no "plausible" fact-based reading. Johnson, 576 U.S., at ___ (slip op., at 13).

         And finally, the "utter impracticability"-and associated inequities-of such an interpretation is as great in the one statute as in the other. Ibid. This Court has often described the daunting difficulties of accurately "reconstruct[ing], " often many years later, "the conduct underlying [a] conviction." Ibid.; Descamps, 570 U.S., at 270; Taylor, 495 U.S., at 601-602. According to JUSTICE THOMAS, we need not worry here because immigration judges have some special factfinding talent, or at least experience, that would mitigate the risk of error attaching to that endeavor in federal courts. See post, at 30. But we cannot see putting so much weight on the superior fact-finding prowess of (notoriously overburdened) immigration judges. And as we have said before, § 16(b) is a criminal statute with applications outside the immigration context. See supra, at 2, 13. Once again, then, we have no ground for discovering a novel interpretation of § 16(b) that would remove us from the dictates of Johnson.

         B

         Agreeing that is so, the Government (joined by THE Chief Justice) takes a narrower path to the same desired result. It points to three textual discrepancies between ACCA's residual clause and § 16(b), and argues that they make § 16(b) significantly easier to apply. But each turns out to be the proverbial distinction without a difference. None relates to the pair of features-the ordinary-case inquiry and a hazy risk threshold-that Johnson found to produce impermissible vagueness. And none otherwise affects the determinacy of the statutory inquiry into whether a prior conviction is for a violent crime. That is why, contrary to the Government's final argument, the experience of applying both statutes has generated confusion and division among lower courts.

         1

         The Government first-and foremost-relies on §16(b)'s express requirement (absent from ACCA) that the risk arise from acts taken "in the course of committing the offense." Brief for Petitioner 31. (THE CHIEF Justice's dissent echoes much of this argument. See post, at 6-7.) Because of that "temporal restriction, " a court applying § 16(b) may not "consider risks arising after" the offense's commission is over. Ibid. In the Government's view, §16(b)'s text thereby demands a "significantly more focused inquiry" than did ACCA's residual clause. Id., at 32.

         To assess that claim, start with the meaning of §16(b)'s "in the course of" language. That phrase, understood in the normal way, includes the conduct occurring throughout a crime's commission-not just the conduct sufficient to satisfy the offense's formal elements. The Government agrees with that construction, explaining that the words "in the course of" sweep in everything that happens while a crime continues. See Tr. of Oral Arg. 57-58 (Oct. 2, 2017) (illustrating that idea with reference to conspiracy, burglary, kidnapping, and escape from prison). So, for example, conspiracy may be a crime of violence under § 16(b) because of the risk of force while the conspiracy is ongoing (i.e., "in the course of" the conspiracy); it is irrelevant that conspiracy's elements are met as soon as the participants have made an agreement. See ibid.; United States v. Doe, 49 F.3d 859, 866 (CA2 1995). Similarly, and closer to home, burglary may be a crime of violence under § 16(b) because of the prospects of an encounter while the burglar remains in a building (i.e., "in the course of" the burglary); it does not matter that the elements of the crime are met at the precise moment of his entry. See Tr. of Oral Arg. 57-58 (Oct. 2, 2017); James, 550 U.S., at 203. In other words, a court applying § 16(b) gets to consider everything that is likely to take place for as long as a crime is being committed.

         Because that is so, §16(b)'s "in the course of" language does little to narrow or focus the statutory inquiry. All that the phrase excludes is a court's ability to consider the risk that force will be used after the crime has entirely concluded-so, for example, after the conspiracy has dissolved or the burglar has left the building. We can construct law-school-type hypotheticals fitting that fact pattern-say, a burglar who constructs a booby trap that later knocks out the homeowner. But such imaginative forays cannot realistically affect a court's view of the ordinary case of a crime, which is all that matters under the statute. See supra, at 2-3, 7. In the ordinary case, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without §16(b)'s explicit temporal language, a court applying the section would do the same thing-ask what usually happens when a crime goes down.

         And that is just what courts did when applying ACCA's residual clause-and for the same reason. True, that clause lacked an express temporal limit. But not a single one of this Court's ACCA decisions turned on conduct that might occur after a crime's commission; instead, each hinged on the risk arising from events that could happen while the crime was ongoing. See, e.g., Sykes v. United States, 564 U.S. 1, 10 (2011) (assessing the risks attached to the "confrontations that initiate and terminate" vehicle flight, along with "intervening" events); Chambers v. United States, 555 U.S. 122, 128 (2009) (rejecting the Government's argument that violent incidents "occur[ring] long after" a person unlawfully failed to report to prison rendered that crime a violent felony). Nor could those decisions have done otherwise, given the statute's concern with the ordinary (rather than the outlandish) case. Once again, the riskiness of a crime in the ordinary case depends on the acts taken during-not after-its commission. Thus, the analyses under ACCA's residual clause and § 16(b) coincide.

         The upshot is that the phrase "in the course of" makes no difference as to either outcome or clarity. Every offense that could have fallen within ACCA's residual clause might equally fall within §16(b). And the difficulty of deciding whether it does so remains just as intractable. Indeed, we cannot think of a single federal crime whose treatment becomes more obvious under § 16(b) than under ACCA because of the words "in the course of."[6] The phrase, then, cannot cure the statutory indeterminacy Johnson described.

         Second, the Government (and again, THE CHIEF Justice's dissent, see post, at 6) observes that § 16(b) focuses on the risk of "physical force" whereas ACCA's residual clause asked about the risk of "physical injury." The § 16(b) inquiry, the Government says, "trains solely" on the conduct typically involved in a crime. Brief for Petitioner 36. By contrast, the Government continues, ACCA's residual clause required a second inquiry: After describing the ordinary criminal's conduct, a court had to "speculate about a chain of causation that could possibly result in a victim's injury." Ibid. The Government's conclusion is that the § 16(b) inquiry is "more specific." Ibid.

         But once more, we struggle to see how that statutory distinction would matter. To begin with, the first of the Government's two steps-defining the conduct in the ordinary case-is almost always the difficult part. Once that is accomplished, the assessment of consequences tends to follow as a matter of course. So, for example, if a crime is likely enough to lead to a shooting, it will also be likely enough to lead to an injury. And still more important, § 16(b) involves two steps as well-and essentially the same ones. In interpreting statutes like § 16(b), this Court has made clear that "physical force" means "force capable of causing physical pain or injury." Johnson v. United States, 559 U.S. 133, 140 (2010) (defining the term for purposes of deciding what counts as a "violent" crime). So under § 16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequences. Or said a bit differently, evaluating the risk of "physical force" itself entails considering the risk of "physical injury." For those reasons, the force/injury distinction is unlikely to affect a court's analysis of whether a crime qualifies as violent. All the same crimes might-or, then again, might not-satisfy both requirements. Accordingly, this variance in wording cannot make ACCA's residual clause vague and § 16(b) not.

         Third, the Government briefly notes that § 16(b), unlike ACCA's residual clause, is not preceded by a "confusing list of exemplar crimes." Brief for Petitioner 38. (THE Chief Justice's dissent reiterates this argument, with some additional references to our caselaw. See post, at 10-12.) Here, the Government is referring to the offenses ACCA designated as violent felonies independently of the residual clause (i.e., burglary, arson, extortion, and use of explosives). See supra, at 4. According to the Government, those crimes provided "contradictory and opaque indications" of what non-specified offenses should also count as violent. Brief for Petitioner 38. Because § 16(b) lacks any such enumerated crimes, the Government concludes, it avoids the vagueness of ACCA's residual clause.

         We readily accept a part of that argument. This Court for several years looked to ACCA's listed crimes for help in giving the residual clause meaning. See, e.g., Begay v. United States, 553 U.S. 137, 142 (2008); James, 550 U.S., at 203. But to no avail. As the Government relates (and Johnson explained), the enumerated crimes were themselves too varied to provide such assistance. See Brief for Petitioner 38-40; 576 U.S., at(slip op., at 12). Trying to reconcile them with each other, and then compare them to whatever unlisted crime was at issue, drove many a judge a little batty. And more to the point, the endeavor failed to bring any certainty to the residual clause's application. See Brief for Petitioner 38-40.

         But the Government's conclusion does not follow. To say that ACCA's listed crimes failed to resolve the residual clause's vagueness is hardly to say they caused the problem. Had they done so, Johnson would not have needed to strike down the clause. It could simply have instructed courts to give up on trying to interpret the clause by reference to the enumerated offenses. (Contrary to THE CHIEF Justice's suggestion, see post, at 12, discarding an interpretive tool once it is found not to actually aid in interpretation hardly "expand[s]" the scope of a statute.) That Johnson went so much further-invalidating a statutory provision rather than construing it independently of another-demonstrates that the list of crimes was not the culprit. And indeed, Johnson explicitly said as much. As described earlier, Johnson found the residual clause's vagueness to reside in just "two" of its features: the ordinary-case requirement and a fuzzy risk standard. See 576 U.S., at - (slip op., at 5-6); supra, at 7-8. Strip away the enumerated crimes-as Congress did in § 16(b)-and those dual flaws yet remain. And ditto the textual indeterminacy that flows from them.

         2

         Faced with the two clauses' linguistic similarity, the Government relies significantly on an argument rooted in judicial experience. Our opinion in Johnson, the Government notes, spoke of the longstanding "trouble" that this Court and others had in "making sense of [ACCA's] residual clause." 576 U.S., at ___ (slip op., at 9); see Brief for Petitioner 45. According to the Government, § 16(b) has not produced "comparable difficulties." Id., at 46. Lower courts, the Government claims, have divided less often about the provision's meaning, and as a result this Court granted certiorari on "only a single Section 16(b) case" before this one. Ibid.[7] "The most likely explanation, " the Government concludes, is that "Section 16(b) is clearer" than its ACCA counterpart. Id., at 47.

         But in fact, a host of issues respecting §16(b)'s application to specific crimes divide the federal appellate courts. Does car burglary qualify as a violent felony under § 16(b)? Some courts say yes, another says no.[8] What of statutory rape? Once again, the Circuits part ways.[9] How about evading arrest? The decisions point in different directions.[10] Residential trespass? The same is true.[11] Those examples do not exhaust the current catalogue of Circuit conflicts concerning §16(b)'s application. See Brief for National Immigration Project of the National Lawyers Guild et al. as Amici Curiae 7-18 (citing divided appellate decisions as to the unauthorized use of a vehicle, firearms possession, and abduction). And that roster would just expand with time, mainly because, as Joh ...


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