Hayward man to get hearing at high court

The U.S. Supreme Court agreed Thursday to hear a Bay Area case over whether a federal law requiring deportation for noncitizens convicted of felonies involving a “substantial risk” of violence is unconstitutionally vague.

On the opening day of their 2016-17 term, the justices granted review of the government’s appeal of a ruling by the federal appeals court in San Francisco that declared the law didn’t define its terms clearly.

The ruling, due by June, will affect thousands of immigrants. Many are legal U.S. residents, like James Dimaya of Hayward, who emigrated from the Philippines as a child in 1992 and faces possible deportation in the case.

Dimaya was convicted of first-degree residential burglaries, of a home’s garage in 2007 and an uninhabited house in 2009, and was sentenced to two years in prison on each. The government then began deportation proceedings.

Dimaya, who challenged the order, spent nearly five more years behind bars before being released on bond in March 2015, his lawyers said. They said no one had been injured in either burglary.

At issue in the case is a 1996 law that requires deportation for noncitizens, including legal residents, who are convicted of “aggravated felonies” — those involving a “substantial risk” that force “may be used” against another person or someone else’s property.

In a 2-1 ruling in Dimaya’s case in October, the Ninth U.S. Circuit Court of Appeals said the law failed to define “substantial” risk or give judges adequate guidance on which crimes qualified for automatic deportation.

The majority opinion by Judge Stephen Reinhardt cited a 2010 government study that found only 7 percent of burglaries nationwide resulted in violence. Although home burglaries may create a risk of violence, Reinhardt said, the law requires immigration judges to speculate about whether the typical burglary creates a substantial risk of violence.

He also cited a Supreme Court ruling in June 2015 that found another federal law unconstitutionally vague. That law required a 15year sentence for a felon who possesses a gun and has three previous convictions for felonies posing a “serious potential risk” of violence.

In dissent, Judge Consuelo Callahan said anyone who plans a burglary “inherently contemplates the risk of using force should his nefarious schemes be detected.”

In seeking Supreme Court review, the Justice Department said deportation proceedings are civil cases and “are not subject to the same vagueness standard” as criminal prosecutions, the subject of the June 2015 ruling.

Andrew Knapp, a Southwestern University law professor who represents Dimaya, said his client welcomed the high court’s announcement even though it put his legal victory on hold.

“He’s excited that maybe his case will serve some greater good” and create a uniform nationwide standard, Knapp said. Even if the Supreme Court upholds the federal law, he said, the appeals court will still have to decide whether firstdegree burglary in California, which does not require a forcible entry, poses a substantial risk of violence.