Dimaya v. Lynch, ___ F.3d ___ (9th Cir. Oct. 15 2015) (California conviction for burglary under Penal Code 459 is not a categorical crime of violence as defined by INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the language in 18 U.S.C. 16(b), which is incorporated into 1101(a)(43)(F)s definition of a crime of violence, is unconstitutionally vague since the 18 U.S.C. 16(b) language suffers from the same indeterminacy the Supreme Court found void for vagueness in the Armed Career Criminal Acts residual clause definition of a violent felony in Johnson v. United States, 135 S. Ct. 2551 (2015)).

The Dimaya court stated:

The Fifth Amendments Due Process Clause requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Alphonsus, 705 F.3d at 1042 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Although most often invoked in the context of criminal statutes, the prohibition on vagueness also applies to civil statutes, including those concerning the criteria for deportation. Jordan v. De George, 341 U.S. 223, 231 (1951)
(Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.); see also A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925) (The defendant attempts to distinguish [prior vagueness] cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions.).

(Id. at 1113.)