Transcripts For CSPAN3 Supreme Court Oral Argument Sessions V. Dimaya 20171013

The 9th circuit erred in holding this decision in johnson compelled the conclusion that the definition of crime of violence in the inas broader definition of aggrevated felony is is unconstitutionally vague. First, the standard for accessing vagueness is not the one thats applicable in criminal cases. Immigration removal is not a punishment for past conduct. It operating on the basis of the application of standards adopted by congress under which an alien is regarded as no longer conducive. If if youre making the distinctions that johnson was a criminal case and this is a z civil case, this court has had a number of decisions saying that line is not so rigid. For example, mlb. Taking away parental rights is a civil proceeding and yet, as in the criminal proceeding forre a indigent party, the state must give the transcripts free. So if you had followed a rigid criminal civil, then if its civil, no free transcript. Only if its criminal. But the court said the line is blurred when there is such a grave consequence. It was a grave consequence to be denied parental right. Its a grave consequence to be remooued from the United States. Our submission, its not just the distinction between civil and criminal, though we think this courts cases established that there is a difference. But the important points here though are immigration is distincti distinctive. This court has said even though it may be regarded as a harsh result or can have a serious impact on a persons life, it is not punishment for past offense. It operates prospectively congress has determined that the individuals presence in the United States is no longer conduci conducive safety. Does that permit arbitrary removal . Can the immigration firms walk down the street and say, i just dont like the way you look . No and this brings me to but let me get to that. So whether this is criminal or civil, the issue for us is i auns it under johnson is is it arbitrary . Is it so arbitrary, that this is vague. I know youre saying its not arbitrary for a bunch of different reasons, but please explain to me on the two grounds that johnson used, ordinary case and type of risk, how this is not equally arbitrary. There were a number of of reasons why we think thats true. First of all, the court said in johnson, it was the sum of the various attributes of the residual clause that created the b problem. Whatever might be the problem with one of those, it was the combination of those. I thought it was only two. The other things it mentioned were. They were critical attributes of the two. Thats the important point. I mean what the court said is im quoting, two features of the residual clause conspired to make it unconstitutionally vague and then there is a clear holding sentence just a little bit later on in the opinion where it basically tells you exactly what the two aspects its talking about. It says by combining in determinesy, how to measure the risk posed by a crime produces more arbitraryness than the due process clause tolerates. So, it says number one. Ordinary Case Analysis. Number two, combine what the fairly fuzzy standard as to the flesh hold level of risk and those were the two factors. I guess the question is, are those two factors any different here . Theyre very different here. As this courts decision demonstrates, it relied on the features we believe are distingui distinguished. Both tat chutes, right . No, but they operate in very different ways. Ordinary cases is a way of saying the elements dont have to match up like under 16a. It doesnt have to be the actual youssuf force. 16b addresses those situations in which the elements of the offense involve substantial risk but physical force can use even though its not an element. Ordinary Case Analysis was not tied to the text of the relevant provision as the it is here. You look to the nature of the offense. The offense by its nature. This court that means you look at the elements and the nature of the defense. Involved a substantial risk. Not that injury might involve, its distinguished the possible possibility the harm might result. In footnote seven, it distinguished sentencing guideline that used the language and says this is not open ended like that. And then the 16b says it has to arise in the course of the condition of the offense. Which means its tied both temperatu temporally. So, how did those two change the definition of what an ordinary case is . The only time that i understand that burglars actually go into a occupied home is very little. Probably less than 10 in which they confront someone. Probably smaller amount when they actually use force gebs against that person. Lots of burglaries are done with open doors or jimmying without injurying a lock. How do they change what constitutes an ordinary case for burglary and what the substantial risk of these, of physical force or injury is . Well, again, i think starting with the text of 16b, you look at the niche of the offense. The elements of the offense. Do they, is inherent in those elements, a risk, a substantial risk rule of force will be used. And so looking at burglary, what is the nature of the offense with respect to the risk of harm. Or excuse me, the risk of the use of force. This court said that the, that nature of the offense there is that the burglar will encounter someone, that the offender will encounter someone while committing the offense. Justice scalia did exactly that in johnson and said the ordinary case and the force or injury is something that youre leaving to the judges intuition. With respect to Justice Scalias opinion and johnson or james or whatever case you may be speaking of was not about 16b and the decision of this court identified burglary as the classic example of what is covered. First getting back to the this court seeps to have drawn that line based on the severity of the consequences that followed the individual. That seems to me a tough line to draw. Because i can easily imagine a demeanor who may have been convicted of a crime, for which the sentence is six months in jail or a 100 fine. You wouldnt trade places in the world for someone who was deported for this country or perhaps the civil forfeitture requirement. And lose his home. How sound is that line that weve drawn in the past. Especially when the civil criminal divide is now a sevenpart balancing test. Not exclusive, so there may be more than seven factors as i ins it. I look at the text of constitution, always a good place to start. The due process the loss of life, liberty or property, doesnt draw a civil criminal law and yet elsewhere, i do see that line drawn. The right to selfincrimination for example. So help me out with that. I, the angel is arrives thinking about the purpose of vagueness restrictions are. As this court has said in the criminal context, there are two basic points. One is that an individual person of Common Intelligence should have notice. Fair notice of the law. There are many important civil contexts too when we have so many civil laws today and theyre often in the way of places like the federal register and other fine reads like that. And the second point i was going to mention is whether it gets rise to the potential for arbitrary enforcement. Whats different about imfor example from the criminal law, the notice. Agree the fair notice point. Pertains to both the civil and the criminal side. It does, but i think in different respects and in some ways the court has emphasizes, theyre related in some ways. Therefore, a person may be remove frd the United States on ground that was not a ground for removal at the time he engaged in the particular conduct. So the idea that the statute for that reason has to have a notice element does not work. And then there is the concern about arbitrary enforcement. This is not the sort of statute that regulates loitering or being annoying on the streets or something which is at the height of where i think the courts concern has been about police and juries and judges being arbitrary in the application. The immigration laws have always been enforced through a broad delegation of authority to the executive branch reflecting the fact that immigration and Immigration Enforcement are closely related to the Foreign Relations of the United States. Those in the government have another about 16b. But you can be removed if you commit a crime of moral it would depend on the rules depending on the nature of the offense. Again, it would depend on the nature of the offense. In this particular case, gracious judge, the crime involving moral interpret and contact you think the concept of the crime is less vague than 16b . No, i think not. But this brings to made whats important about Immigration Enforcement or frankly a lot. The crime is always applied facts of the case. Johnson pointed out when you have a tstatute that uses informations like substantial or severe, what gives it life is its application to actual facts. The difference is that this one is to hypothesize the facts and has nothing to do with the reality of the crime. Its asking what the elements of the offense are that everybody has to commit as opposed to what the rmts of the offense are that people commit in the ordinary case whatever that might be. And that raises the question the Justice Scalia thought was so important in johnson and elsewhere where he says theres no way really for a court to do that. You know, this is the line should we like to a Statistical Analysis as a state reporter is served a expert evidence gut instinct that this is the prime one with residual clause under johnson as it is here is that we dont really have a source of law to look to to tell what an ordinary case is in under either statute. I really dont think thats correct. In johnson, the court was concerned about a tat chute that referred to the chance that injury will occur which could be completely open ended. Here, this is tied to the text of the statute by its nature does it give rise to the list. Before you get swoo into that question, does it do this in terms of force or that in terms of injury, before you do any of that, you have to have an understanding of what the ordinary is. And the problem in johnson with the residual clause according to Justice Scalia and the court was that there was no way to tell what that ordinary case was u. Again, with respect, this Court Unanimously held that burglary is a classic example and gave the reason why. Which i think is helpful for answer this question more generally. The court said burglary by its nature in the course of committed the offense gives rise to a risk of physical force will be used during the offense because the person will encounter someone else. So built in, inherent in the nature of burglary is the risk that the burglar will encounter someone after the crime has been committed. If i might interrupt. Im sorry, but this raises a question ner about the nature of our task here. It seems to me that one function of this doctrine of course not in this case. But generally. The doctrine serves it also serves as a separation of power. The judges cannot say what the law is. They dont make it up. Right . I want to hear about what the ordinary case is. The ordinary case of burglary in california. Does it include fraudulently selling securities in someones home. Is that the ordinary case or not . I would probably want to have statistics and evident yar hearings and hear experts on that question. If i didncant distinguish my j from a legislative committees work, am i not verging on the separation of powers problem . At the outer limits, there may be problems like that, but its important for the court to focus on the core of what this, unlike the residual clause, has a core. What the court, another point we havent discussed, what the court was concerned about. Could you answer me question . I apologize, but the, i think the court can comfortably look and see whether the statute has a core of offenses. Take burglary in california. Oh and what level of generality am i supposed to look at . Municipality in Orange County . State, california . The country . Or do i make that legislative choice, too. Just wondering, even take bu burglary in california. Class one, its a close case. Only because it does not require an unlawful entry or unlawful remaining. Therefore, it does not but as this court held in its accomplished by the use of force. That doesnt mean its not 16b because on the entire time that the victim was he or she knows it initially. Once she finds out she is, the risk how am i supposed to determine what the ordinary case is. Should i bring in some experts and have hearing and if so, why isnt that a legislative function. The case where the statute is. Whether the elements give rise to the risk. Wouldnt im sot saying experts for example, as we were in several cases. Do you remember, you do, maybe not. That several judges, some in the lower court judges, why doesnt issing commission, why isnt that part of the Justice Committee that keeps track of statistics. You find out what is the typical way in which for the case after case went by and nobody ever has statistics. I tended to think well, they cant get them. Otherwise they will. And i think its a similar question to what is being asked. May be general categories of offenses. We never had under that provision where somebody came up with statistics, despite what id call. Unless some statistics wi with i think its important to recognize that what we have here is a legislative enactment. The type of offense and there is only so much that one can expect from the legislature in identifying a category. And here, congress identified a category in 16b that is closely tied to 16a. It involves the situations in which the element involves the use of force. 16b expands that to say it may not be technically an element, but is the offense under 16b so inherent that it can contain a risk of force that it should fall in the situation in that same category. You look at other offenses, a crime of violence. It certainly is a crime of violence. Conspiracy itself contains the substantial risk of physical force being used because it is an agreement to commit the very crime that will result in physical force. The minors case, but there is a catego category, between an and a minor. The use of physical force is inherent in the nature of the offense. When the adult, even if the adult is able to get the child to comply without actually using physical force, the threat or possibly for physical force is always present if the child resists. The children not being physically forced into sex, but being tricked into it by caretakers or talked into it, et cetera. One may have personal views about whether an adult can ever not be using improper. In that encounter, the potential for the use of force, the risk for the use of force is always the same. And whether or not forces used in 25 of the cases, that context is not the relevant. It doesnt surprise you the courts below are split on this question. Just the way they were. The distinctions to do with the level of offense. Particularly when it comes to sex offenses, its d difficult to say stat choir ra p pe or sexual abuse of a minor because the elements may vary. You mind if i take it in a different direction in some accused of species and theyre legitimate on that score. Keep judges out of making whats the governments position on that . I dont know if we could trace it in those concerns. Thats what im asking now. It seems like more of a process limitation. Why . Because the doctrine doesnt prohibit the congress from ledgelating in any area. Just provides fair nets notice and that doesnt involve body in law making. I suppose it has procedural aspects, but it also requires the congress be congress do specify any crimes it wishes to include tomorrow. Theres no limitation. It could, but congress chose to identify a category of crimes that it believed gave rise to a substantial risk and we shouldnt expect the impossible from congress when it wants to identify crimes by even when its going to put people in prison and deprive them of liberty and deportation, you shouldnt expect congress to be able to specify those . We think this law reasonably captures the category the congress thought whos conduct gave rise to serious risk of physical force being used. Can i get quickly your answer to the question about being the altertive that the government could have pursued. So the immigration judge found that this was a crime. But on grounds which were not correct because the judge didnt apply the approach, the right way to look at the crime. Thank you. Mr. Kroezenkranz. Mr. Chief justify tis, ill begin with the chief points. Justice gorsuch is right. This is not a job the congress canly delegate to the courts and to enforce officials. Congress has written a statute that makes it impossible for immigration officials to figure out what the law is has delegated that function to them. It is done it with two features that this court described is dooming the residual clause. First, the piece that most concerned the court. That said was most important. Hypothesizing this ordinary case of a crime then second then estimating the risk associated with that version and whether that meets some vague standard. The government warned the court in johnson, section 16 was quote equally susceptible to challenge. The government was right then and the differences in statutory language do not change the outcome. Since discovered, but the statute here says during the course of committing the fen tte sxwlchlt your honor, it isnt quite different from the statute in johnson. It has the same limitation in different language. Section 16b covers risks in the course of committeei ingcommitt. Other ones involves conduct. Both are referring back to the crime, but really, i because i cant tell you why the government is wrong without know without knowing what the government thinks those words mean and the government keeps shifting back and forth between two versions of what in the course of committing the crime means. At points, the government says it means that in order to satisfy the elements of the crime, so it reads the sentence to me and you look for substantial risk. The physical force may be use in order to satisfy the elements. But thats not how any court was ever applying this provision. Its not how the government was telling the court to apply this provision. The Government Back then and now points to conspiracy and other offenses. Those are complete. When you say i want you to kill my wife. Heres 100 bucks. Theyre completed with the utterance of those words. Never the less, you look after the utterance, at least the government urged the courts. But what about attempted burglary in james . As johnson itself points out or burglary, johnson himself points out burglary was a problem. Why precisely because under the ordinary approach, courts were required to look past the elements, burglary is committed. The elements are completed. The moment you cross the threshold, thats, if thats the governments reading, then burglary would be out. What the court said in johnson is that its what happens after you cross the threshold that creates the risk. Then the government shifts to, okay, while the crime is urnway, thats what in the course of committing the crime means. But thats not a solution. That is exact ly the problem tht johnson describes. Its concern was that the ordinary Case Analysis was quote detached from the stat torre elements and it leads you to speculate after the elements have all been satisfied, but while the crime is underway. Suppose a state intacted a statute that says no person may be licenseded to teach preschool if the person has satisfied the language, not by reference to 16b, but the language included in 116b. Would that be constitutional vague . I dont think it would be. If its some state not incorporatine congress handy wk or adopting this language because its language congress adopted, i see were shifting now to the other piece of the case, which is whether, which is the application of criminal standards. Before i decided, before i can determine whether this is unconstitutionally vague, i have to know what the standard is. So thats my question. If we apply the standard that generally applies to civil statutes. Would this be unconstitutionally vague . We might do a wonderful job of pruning the United States code if we said that every civil statute not written with the specificity thats required by a criminal statute is vague, we could boil that down a lot. But thats what im asking. Is that what youre arguing . No, not at all, your honor. First, youre talking about a stat here thats very different from deportation. Im taking it step by step. Its a licensing statute. There are three things to say about how this criminal standard applies in this civil context. The first is to the premise of your honors question, jordan settles the question, the answer question how you apply criminal to the detor patience context, but this court never has to decide whether to reaffirm jordan. Lets say we dont think jordan decided the issue. Two things to say before you address jordan then the third is to say squlorden was right. The first two things an ra poe of Justice Alitos assumption, its a statute that congress elected to import into this statute. Then courts must apply the same criminal vagueness standards. That seems like a minor point. Im sorry. Congress literally said in the ina that the crime, the definition of crimes of violence is the definition of section 16b. Being a criminal statute. It then added all sorts of bells and whistles of other ways to create an aggrevated felony, but this court and ab small said here is what you do when you have a statute that has both criminal and civil applications. I took this waway from justie alito. He wants to know the standard for determining vagueness in civil cases. So, the standard was laid out by this court in Hoffman Estates. The seriousness of the crime, how serious a penalty is. Thats where i get stuck. The consequences in civil matters can be very grave. Forfeitture. Take a mans home. His entire livelihood. Deport him. Graver than any other. The line between civil and criminal depends. I will answer the question, but let me preface it by saying ive only mepgsed one of the reasons that this court doesnt have to figure out the answer to that question. Lets answer the question first. I would go back that this court has rejected a sharp line between civil and criminal. Whether civil or criminal with severe consequences. How do i determine that . Heres how you determine that. This court has never had to get into the that question since Hoffman Estates set this out. Its not a question that arises often. The way the court answers the question here is we know First Amendment cases are on one side of the line. What else comes on that side of the line . If there was a consequence that was on par with criminal cases, it is banishment, exile, lifetime banishment. The framers understood banishment to the equivalent that takes away what makes life worth living. If quintessential penalty. He says its difficult to imagine a doom to which name cannot be applied. By the way, this is not new to tho court. Its not just Justice Ginsburgs example. In a case involving a criminal protection, that is a constitutional protection that relates only to crimes, that is the sixth amendment, deportation already stands alone as the only civil that triggered the institutional protection on a par with the criminal protection. So you dont get to come into court and say my lawyer didnt get i get it you dont want to answer the question. I really, im very interested in the answer. Which is asking where do you draw the line . Hoffman says that it varies. The line between the severist penl the alties and those that less severe. If it is on par with a criminal punishment such that someone would trade one for the other, this court answered the question most people would happily take a little bit extra time in prison in order to avoid the consequence of deportation. My earlier question was about licensing. I suppose this applies to license as an attorney. As a physician. Taking that away from a person is pretty severe. Yes, your honor, but not as severe as lifetime banishment from this country, which is proceeded by automatic and mandatory imprisonment. When we start that, arent we going to get into this same kind of legislating and how severe, where is this line drawn . Its where the support drew in hopkins estates. That was decades ago. What do you think about this . Life, lib ber thety or process. Its great line. Yes, thats a great line. Hi life, liberty or property. Particularly here, were talking about a liberty interest that says you must leave for some people, the only home that ever, that youve ever had. You must leave your family. So that when someone is making the decision, am i going to plead guilty to a crime that i didnt commit in return for time served, he needs to know by the way so he can get back to his wife and kids, whether i. C. E. Is going to be standing out there depriving him of that liberty and deporting him from his wife and kids. Do you think you could go back to Justice Kennedys original question . If you dont recall, if i get it right. Is lets look at the when we struck down in johnson and the difficult language was it involves conduct that presents a serious potential risk of physical injury to another. Then there were a a lot of examples where gee, awfully tough to figure out whether it does or does not fall within those words. Now, lets look at this line. It involves a substantial risk the physical force against the person or property of another, may be used in the course of committing the offense. Now, that would seem to be that if the offense is conspiracy to commit burglary, the conspiracy is finished. Over. Done with. Long before they get to the property. And so that wouldnt be too tough. But burglary, which takes place on the property or conspiracy under the first statute, which will lead to the burglary that takes place, that becomes tougher. Lets look at our statute now. And give me some examples. Im sure there are many. But i think it would be helpful where under this language, it seems my god, what is the base. This is impossible. Ill give you several. Fir first, sykes, the ve hick laren flight. The court was meiered in controversy. About how you figure out whether the vi hick lar flight is going to give rise and how did the court do it . It was looking at the moments or the long time frame after the elements were sats fied. The moment you pull out, you are in vehicular flight. And the distinction between physical force and injury doesnt help and the distinction between the property between personal injury doesnt help, youre still always imagining what is happening, the press pass. It all depends on first what do you imagine the ordinary pace to be of residential trespass then figure out how it plays out. Or car burglary. Extortion. It all depends upon the ordinary Case Analysis which goes back to Justice Sotomayors question early on. The heart of this problem is this ordinary case approach and none of the statry differences help you figure out what the ordinary case is. And mr. Rosenkrans, just to tie in this ordinary case problem about during the commission of the crime, does the government in all of this briefing and all of argument ever come up with a single crime in which the ordinary case of that crime, the injury would be occurring after the commission of the crime . If the commission of the crime is taken to mean not just elements, but a more general view of what the crime is. Im government has never come up with a single case under aca in which remember, aca requires you to look at the ordinary case. In the ordinary case, what crime has injury that occurs after the commission of the crime . The government has not told us of any. Thats correct. After the crime is over, i mean conspiracy or solicitation to murder. The crime is done, it occurs after i think the governments current position was that thats out. So thats the example. But in order to get there, the government has to take the quintessential crime and say that it is not thats inconsistent with what the government has said in multiple cases. The court of appeals has said that those crimes are within what about conspiracy . You can have conspiracy to commit burglary. Its over once you conspire. Thats an example but i think the government said that thats it. Thats in . Right. If thats in then this whole notion of in the course of committing the crime doesnt do any work. Similarly the government a different point. Could the government ask a statute saying that aliens who commit criminal offenses are deportable if in the discretion of the attorney general the presence of the alien is inconsistent with the best interest of the people of the United States . That is the basis of deportation, no. Why . Im sorry, let me back up another what standards must a statute meet before an Administrative Officer can make the determination that remaining in the United States is not in the best interest of the United States . Would that suffice . Would that be unconstitutional . That would be unconstitution unconstitutional . Under what rule. A reasonable person, whether it is the deportee or an official on the ground or an Administrative Law judge would have no idea what the content of that prescription is as a basis for being within the universe of people who are identified as being deportable. Now, if its a basis for the attorney generals exercise of discretion that despite the fact that you are deportable as congress has defined it i am not going to deport you, thats another story. Bult w by the way, that was the muller case. What do you say to the kr critique that it should be narrowly construed . Your honor, its not substantive due process. Its procedural due process. It is procedural right on the part of the individual whos being accused or being deported to know what the law is in advance and as Justice Thomas has explained very eloquently, it derives out of the rule of lenity and its all, as your honor was pointing out, a very important separation of powers and principles because the Law Enforcement officer on the ground who gets to tell a nonlpr you are an aggravated felon and you are out with no opportunity for bia review and very limited judicial review, that is a classic abedi occasion of Congressional Authority to line level officers. How is it a procedural right . The statute is void for vagueness because when it is being applied to an individual that individual is given no notice that lifetime banishment is going to be the consequence of what he thought to be a safe harbor what if he was given notice in some other way . I think it depends in what way. But this court said johnson actually had notice. Johnson knew that the illegal that the sawed off shotgun was illegal but this court struck the statute. So that makes my point. He had notice. He knew. So wheres the procedural violation . For the vast majority of the people and the people who are affected by it is procedural. But your honor, i just realized in this colloquy, i never did answer the other part of your honors question, justice soul eat toe about the reasons why the vagueness stand applies here, the criminal vagueness sta applies here. The first i said is 16b is itself a criminal statute. The second reason is to the point that Justice Gorsuch was making about the relationship between criminal law and immigration law, there is not an area of law where the two are as integrated and 16b in particular, excuse me, the provision here in particular has very significant criminal consequences. The aggravated felon label, once you are an aggravated felon in the ina, certain immigration crimes are triggered and so aggravated felon becomes an element of a crime. Ill give you an example. If this vagueness analysis works the way the government says it works, mr. Demaya can be deported because he had sufficient notice or the statute was sufficiently clear, but an aggravated felon who reenters this country is prosecuted as an aggravated felon. So if he reentered the country he can then be he can then not be prosecuted as an aggravated felon because the statute would be too vague. That makes no sense, which is exactly why this court adopted the rule that it adopted and that four members of this court repeated in northwestern bell, which is if Congress Makes that choice to give civil and criminal ramifications to the same statute, the very same statute that the statute is void for vague, in one context void for vague and the other by the way that other context in ab small was asilly little contract case, not even the licensing of a nursery. Can i ask you a simple question. If, as this court has held, crime of moral interpret tud isnt unconstitutionally vague, why should 16b be vague . The answer is crime involving moral turpitude does not sit in a vacuum by itself. It is a phrase that congress has adopted that has at this point probably two centuries worth of law describing what is in and what is out. By the way, what did the court do in jordan . What the court did in jordan was to say you, jordan, you committed a fraud. One thing that has been clear since as long as those words have been used is that a fraud is a classic crime involving moral turpitude. Thats why he lost that case. If he had been criminally prosecuted under a statute that made an element of the crime that it be a crime involving moral turpitude, the same result would obtain. Maybe you have in your head a list of you could categorize any offense that i might mention and say thats a crime of moral turpitude, thats not a crime of moral turpitude. I couldnt do that and i doubt somebody whos facing possible removal consequences would be able to answer that question. Its like sho shooting a bald eagle, is that a crime of moral turpitude . It is not. By the way, nor is flag burning. Let me answer the question this way. You dont have to know but you have to be able to go to someplace like a lawyer who can tell you what the answer is. And where does a lawyer go . There are 14 pages where every single possible crime is categorized as in or out based upon decades of judicial and other interpretations. Thats how one knows. In a crime of moral turpitude we dont have to consider what the ordinary case is, do we . Not the ordinary case, thats for sure. All we do is look to the elements that everybody has to make . Correct, correct. Let me close with this. I appreciate the instinct to try and see if this court can do better with section 16b than it did with accas residual clause. But in deciding whether to take that route, this court has to decide whether anything is to be gained by this whole enterprise of sending the lower courts back to apply now a different standard and figure out how it applies to all of these crimes. That process is going to be no less arbitrary and speculative, and lifetime banishment should not hang on the unpredictable answer to the question, is this crime in or is it out. Congress can of course decide the circumstances under which lifetime residents can be kicked out of this country but it serves the separation of powers as Justice Gorsuch referred to to allow congress to pass the buck to immigration officials and courts with a provision this vague. If there are no further questions, we respectfully request that the court affirm the court of appeals. Thank you. Thank you, counsel. Mr. Kneadler . With respect to conspiracy and some of the other crimes that have been mentioned, this is a krit dcritical point to understand. You can be prosecuted for conspiracy from the moment of the agreement but it continues up until the commission of the crime. The commission of the crime is the culmination of the conspiracy. Same with burglary. Burglary is not over when you enter the house. Its over when you leave the house. Kidnapping is not over until the victim is freed. Escape from a prison is a continuing offense. And 16b and its counterpart, 924c, serve a Critical Role in circumstances like that where a crime extends over a period of time. You can complete the crime without violence being an element, but it is instinct with the risk of crime and that is why excuse me, force, and that is why congress address it and that is what this Court Unanimously focused upon. 16b has been on the books for 30 years and has not generated anything like the sort of confusion that accas residual clause did. This court, we submit, should pause greatly before extracting from the u. S. Code a statute that has so many applications. In the immigration context this statute is applied all the time through the administration of an administrative body. Its not like a regular civil law in that respect. In how many cases is it the sole basis of deportation . I dont know the percentage but its also a basis for denial of discretionary relief. Also in deciding what falls in this category, statistics are not the major thing. There are plenty of things to look at. The body of judicial decisions construing the very provision, the background of the legal tradition which is what this court drew on in saying that burglary is a classic example, its a classic example for the reasons that i just gave. You can look at the legislative judgments embodied in the crime. The circumstance when forced is not used, is it like the situations where the elements are present. You asked for an example, i think, of a crime that would be in under acca and out here. Possession of a weapon is one because possession inherent in the possession is not the use. There has to be a subsequent act in the use of a weapon. So thats out here because its not in the course of committing the crime of possession. We said it was in acca because it is injury like flow. It was actually a pretty good illustration of the difference between the two circumstances. Finally with respect to immigration, i think its important for the court to understand that immigration provisions and grounds for deportation are often written in very broad and general terms and given content by the executive branch in which congress has vested authority, crime involving youre not asking the executive to define these crimes, youre asking us to do, right . In the immigration context. This is an example where congress has delegated an executive to do this. Youre suggesting its delegated to this branch to do it . No, its not delegated to this branch. This branch has to construe the statute that congress has enact enacted. In other circumstances the agency gets deference in what constitutes a particular removable offense. Thank you, counsel. The case is submitted. This weekend on American History tv on cspan 3, saturday at 6 00 p. M. Eastern on the civil war, kelly ma zurich, author of for their own cause on southern morale after black troops were assigned to guard confederate prisoners. One might assume thats why they chose these black troops because in the mid 19th century most people did believe black men were not talented enough to fight, brave enough to fight. At 8 00, Tennessee State University Ashley riley seuss za on native americans and trade in 19th century california. The indian men are cowboys and they look like a mariachi band. Theyre dressed really, really nicely. That kind of shows you the value that mich nassion arearies plac them. They were allowed first of all to ride horses which was forbidden and secondly theyre dressed pretty nice. Sunday at 7 00 p. M. On oral histories we continue our series on photo journalists with david valdez, former director of the White House Office under george w. Bush. If i Say Something about his hair and i take this photo and his hair looks nice, no one will ever believe that this wasnt set up. So i just took the photo and wound up running two full pages in life magazine. And then over the next 20 years or so, it was in the best of life and classic moments in life. And in 2011 it was selected in the issue one of the best photos in life magazine for the past 75 years. American history tv all weekend, every weekend, only on cspan 3. The u. S. Senate comes into session on monday at 4 00 p. M. Eastern. Senate lawmakers will consider the nomination of ka lis sa gingrich to be ambassador to the vatican. A confirmation vote is said for 5 30 eastern. Lawmakers also expected to take up a 36 billion Disaster Relief package which includes funding for the National Flood insurance program. When the Senate Returns to session at 4 00 p. M. Eastern monday, live coverage from the floor on our companion network, cspan 2. And on the other side of the capitol, the u. S. House is in recess until the week after next. Theyll be back in washington on monday, october 23. When the house is in session, live coverage on cspan. Cspan, where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies. Its brought to you today by your cable or satellite provider. Half a million Rohingya Muslims in myanmar have been forced to leave their villages by the countrys military. The House Foreign Affairs Committee Held a hearing earlier this month with witnesses from the state department about the issue and looked at the u. S. Response. This hearing will come to order. Before my Opening Statement without objection id like to play a video, short video, from our friends at radio free asia that highlights very much i think the scope and severity of the violence against the hoe hin rohingyas. Lets play that right now. Rohin. Lets play that right now