UNIVERSITY PARK, Pa. – Penn State Law’s Civil Rights Appellate Clinic earned a significant and precedential victory on Nov. 8 when a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit issued a decision agreeing with the clinic’s argument that section 16(b) of Title 18 of the United States Code, which defines a “crime of violence,” is unconstitutionally vague.
The clinic represented Carlton Baptiste, a 77-year-old New Jersey resident, in Baptiste v. Attorney General United States of America. Baptiste, a native of Trinidad and Tobago who has lived in the United States as a lawful permanent resident since 1972, is fighting deportation under an order of removal from the Board of Immigration Appeals for crimes he committed in 1978 and 2009.
The Board of Immigration Appeals ordered Baptiste’s removal under two portions of the Immigration and Nationality Act calling for the deportation of noncitizens convicted of an aggravated felony defined as a crime of violence and noncitizens convicted of two or more crimes involving moral turpitude.
The court agreed with the clinic that the statute’s definition of “crime of violence” is unconstitutionally vague under the Due Process Clause of the Fifth Amendment, noting that “similarly worded statutes have come under attack in federal courts across the country after the Supreme Court’s decision in Johnson v. United States,” which found that the “residual clause” of the Armed Career Criminal Act was unconstitutionally vague and in violation of the Due Process Clause. The 3rd Circuit therefore invalidated section 16(b) of Title 18 of the United States Code and ruled that Baptiste was not convicted of an aggravated felony.
The court did find, however, that Baptiste is removable for committing two or more crimes involving moral turpitude, so it remanded the case to the Board of Immigration Appeals to allow Baptiste to access relief that may have been unavailable to him as a noncitizen convicted of an aggravated felony.
“The decision is significant in several respects,” said Professor Michael Foreman, director of the Civil Rights Appellate Clinic. “One, it is a precedential decision, meaning it reflects the views of the 3rd Circuit. Further, because the Supreme Court currently has this very issue before them in the Dimaya case, it will now have the views of the 3rd Circuit as it considers this important constitutional issue. Finally, the decision will allow the immigration court to consider the fairness and equities of Mr. Baptiste's confinement.”
Penelope Scudder, then a third-year Penn State Law student, delivered the oral arguments in the case against the Justice Department in April.
“The decision of the 3rd Circuit to find 16(b) unconstitutionally vague is tremendous,” said Scudder, who is now working as an associate attorney at Weissman & Mintz LLC in New Jersey. “I'm thrilled that the court agreed with us that use of the ‘ordinary case inquiry’ and ‘substantial risk inquiry’ mandated this result.”
Scudder’s argument, which can be heard online on the U.S. Courts website, garnered praise from the 3rd Circuit judges hearing the case, who remarked at the end of the hearing that Scudder did a “super job” and offered “kudos to you and your teacher.”
Even the opposing counsel from the Justice Department complimented Scudder and the clinic for taking on such a complex case. “For a law school to jump in on a difficult case like this, I give them a ton of credit and so does the department,” said Senior Litigation Counsel Jesse Bless, who argued the case for the Justice Department. “You did a fine job.”
“This was a remarkable opportunity and one that helped to prepare me for life after law school,” Scudder said. “I am deeply grateful to Professor Foreman for his trust and faith in me, as well as his encouragement and support.”
The oral arguments were the culmination of two semesters’ worth of work by all of the students in the Civil Rights Appellate Clinic, who contributed to the case in drafting briefs, researching case law, culling through the prior opinions of the 3rd Circuit judges on the panel, and acting as judges and opposing counsel in moot courts leading up to the arguments.
“The team of students that worked on this relentlessly over the past several semesters did a wonderful job of crafting the legal arguments and Ms. Scudder presented them very persuasively. They all should be proud,” Foreman said.
“I'm glad to be in a clinic where the past students laid such a great foundation,” said third-year clinic student Matt Maragulia. “We were able to continue their work on this case in other ways, and put forth what we believe is the correct law. It's been a great semester, and this win is an exciting way to wrap things up.”
The Civil Rights Appellate Clinic, one of nine legal clinics available to Penn State Law students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy. The clinic is an exciting opportunity for law students to learn appellate advocacy and get involved in federal civil rights cases.