The Ninth Circuit has revisited its jurisprudence regarding whether the particularly serious crime bar is unconstitutionally vague. The court recognized that the Supreme Court’s most recent case law on vagueness rules out the legal standard that‘a statute is void for vagueness only if it is vague in all its applications. Nevertheless, even with this updated case law in mind, the court found the statute not to be unconstitutionally vague.
“We know with certainty that a minor traffic infraction is not particularly serious and that a heinous, violent crime is particularly serious. But for the crimes in between, the statute provides little guidance. Instead, the statute provides an uncertain standard to be applied to a wide range of fact-specific scenarios. In that sense, the standard is uncertain. But that kind of uncertainty does not mean that a statute is unconstitutionally vague. Many statutes provide uncertain standards and, so long as those standards are applied to real world facts, the statutes are almost certainly constitutional.”
“Critically, the particularly serious crime inquiry in 8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts. Unlike many standards in the immigration context, the particularly serious crime inquiry requires the BIA to assess what the alien actually did.”
The full text of Guerrero v. Whitaker can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/09/15-72080.pdf