Exclusive — Former Immigration Judge on Gorsuch Ruling: ‘Very Dangerous Aliens’ Are ‘Not Going to Be Removable Because of This Decision’

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Former immigration judge, Andrew R. Arthur, joined SiriusXM hosts Rebecca Mansour and Joel Pollak on Tuesday’s Breitbart News Tonight, describing the Supreme Court decision in Sessions v. Dimaya as endangering Americans by restricting the federal government’s capacity to remove aliens convicted of “crimes of violence.”

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Arthur, currently a resident fellow in law and policy for the Center for Immigration Studies, said, “I think the biggest problem with this decision is it’s the sort of decision that only people who think too much and know too little actually do, and I don’t want to criticize Justice Gorsuch or Justice Kagan, but, again, it’s a very theoretical decision that doesn’t actually have anything to do with the way that this statute is applied in the real world.”

Arthur agreed with Chief Justice John Roberts’ dissent. He said, “Justice Roberts, on the other hand, in his dissent actually explains how it’s applied in the real world and explains how it’s not really that difficult of a statute to apply and how it’s not really that vague. As Justice Roberts noted, there are some serious implications to this decision. There are a lot of very dangerous aliens who are not going to be removable because of this decision, plus the crime of violence definition … applies in a bunch of different criminal statutes, and each one of those is going to be very adversely affected by the court’s decision. Again, we can’t allow that to get in the way of a constitutional analysis if a provision is plainly constitutionally invalid, but, again, I concur with Justice Roberts: it’s not, and it should have been allowed to stand, but the court didn’t see it that way.”

Arthur highlighted the bone of contention between the Supreme Court’s majority and dissenting opinions. He stated, “Under the immigration laws, we define certain things as aggravated felonies; they have very serious consequences: you’re not eligible for certain forms of relief, including asylum, cancellation, and removal. Plus, you’re removable from the United States. One of the subsections of the aggravated felony definition is for crimes of violence, and it defines a crime of violence [in] 18 U.S.C. 16.”

Arthur explained 18 U.S.C. 16’s definition of “crime of violence.” He said, “At issue in the case was 18 U.S.C. 16 subsection (b), which defines a ‘crime of violence’ as any other offense that is a felony and by its nature involves a substantial risk of physical force against the person or property of another in the course of committing the offense. Now, the typical case in which we think of this is burglary. When you break into somebody’s house, you do it with the possibility that that person will be home, that they’ll be armed, that you’ll be armed, or that you’ll actually have to use force against that individual, but force will actually have to be used in the commission of the offence.”

He continued, “Kidnapping is another one, a very common crime in which the ‘crime of violence standard’ is used, but the Supreme Court said today that this particular provision — 18 U.S.C. 16 subsection (b) that I just read — is void for vagueness. It’s too vague to be applied, notwithstanding the fact that the Supreme Court actually applied it in a case called [Leocal v. Ashcroft]. So it is a little odd.”

Arthur said, “[James Dimaya] is a fellow who committed two burglaries. This isn’t a guy who drunk drove a couple of times or wrote bad checks. These are serious crimes, and these are crimes that actually have an effect on the community. For the courts to issue a decision like this, such a sweeping decision, was a little bit of a surprise.”

Arthur assessed Gorsuch’s underlying motivations for his decision to join Justices Breyer, Ginsburg, Kagan, and Sotomayor’s majority ruling. He remarked, “One thing about Justice Gorsuch’s concurrence in this case [is] … his strong belief in civil liberties definitely comes through because his concurrence almost completely addresses the issue of the constitutional protections that individuals have against government action, including vague statutes that can be interpreted and abused by courts and prosecutors and police. So I think that was really the driving motivation behind [his concurrence], not the idea that … the aliens who commit crimes like this should be allowed back on the street.”

Arthur added, “Even though it’s a decision that goes against the rule of law and one that, I think, reaches the wrong decision, [Gorsuch] makes some very strong statements in favor of civil liberties. Here’s a quote: ‘Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.’ It reminds me of Marbury v. Madison, where Justice Marshall ruled against what his interests were, but in doing so, established some very strong principles that actually carried forward his ideas. I think we’re going to see a lot of good come out of Gorsuch’s concurrence. Unfortunately, in the short term, a lot of bad’s going to come out of it.”

Arthur advised Congress to pass legislation with more specificity in defining a “crime of violence.” He said, “[Congress] will have to put in some sort of fix for this hole in the law for these dangerous individuals who are going to be released or not removed because of this. We keep hearing Democrats saying, ‘Deport criminals. Don’t break up families.’ If you want to deport criminals, here’s your opportunity. Here’s a good, strong bill that is going to allow you to deport burglars and kidnappers and individuals who engage in assault. Sign onto it. Put your money where your mouth is.”

Arthur said, “Burglary, indecent assault and battery, stalking, and manslaughter: those are four pretty serious crimes. The idea that you can be a lawful permanent resident, commit one of these crimes, commit several of these crimes, and be allowed to continue to live among us, that’s a serious problem. In the short run, until this gets fixed, those individuals are going to be allowed to remain in the United States and stalk and burglarize and engage in assaults and batteries until this can be resolved.”

Breitbart News Tonight broadcasts live Monday through Friday on SiriusXM’s Patriot channel 125 from 9:00 p.m. to midnight Eastern (6:00 p.m. to 9:00 p.m. Pacific).

Follow Robert Kraychik on Twitter @rkraychik.

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