Esquivel-Quintana: Government’s Brief on the Merits

On January 18, 2017, the Solicitor General’s Office submitted the government’s brief in Esquivel-Quintana v. Lynch.

For much more information about this case, please see our dedicated page.

The Supreme Court will hear oral arguments in our case on February 27, 2017.

The government expresses a fundamental disagreement with us regarding the application of the categorical approach.

The Supreme Court, in cases that apply Taylor v. United States to immigration cases, requires that if a noncitizen is convicted of a crime under a state law, then the reviewing courts in the subsequent removal proceedings – Immigration Courts, the Board of Immigration Appeals (BIA), and U.S. courts of appeals – must work with a definition of the crime of conviction that is derived from the contemporary, “generic sense in which the term is now used in the criminal codes of most States,” federal law, and the Model Penal Code.

As we have described in prior posts, we are arguing that, among other reasons, the fact that my client’s conviction is for conduct that is perfectly legal under federal law and the laws of 43 states and the District of Columbia, means that, under the requirements of Taylor, my client’s conviction is not a categorical match with a contemporary generic definition of “sexual abuse of a minor.”

The government argues that the categorical approach involves two steps, and that the first step is “interpreting the federal provision at issue.” The government claims that the statutory phrase “sexual abuse of a minor” does not have an established meaning in state law, and so it is not appropriate to review the relevant laws of the 50 states.  According to the government, the first step is to interpret the meaning of “sexual abuse of a minor” without looking at the laws of the 50 states.  Because the government has entrusted the Board of Immigration Appeals (BIA) to interpret the nation’s immigration laws, it is up to the BIA to give us a definition of “sexual abuse of a minor.”

(Notably, we have argued that BIA did not ever actually provide a definition of “sexual abuse of a minor.”  The BIA, to date, has taken a “we know it when we see it” approach to what “sexual abuse of a minor” means, on a case-by-case basis.)

The government states that by simply considering the “plain meaning” of the words “sexual abuse of a minor,” one arrives at the conclusion that the phrase means any sort of sexual conduct that involves a person who is under age 18.

Next, the government argues that, to the extent that the term “sexual abuse of a minor” might be ambiguous, or subject to multiple interpretations, that we owe deference to the Board’s interpretation, under the famous 1984 case of Chevron U.S.A. Inc. v. Natural Resources Defense Council.  The government disagrees with our arguments that the BIA is not due any deference in this case – namely, (1) that after applying the categorical approach, there is no ambiguity; (2) the criminal rule of lenity trumps Chevron deference; and (3) the Board’s decision was unreasonable.

The government then states that, given that the interpretation of “sexual abuse of a minor” is so broad that it encompasses all sexual activity involving a person under age 18, we move to the second step of the categorical approach, comparing my client’s California conviction to the “definition” of “sexual abuse of a minor.”  Because, according to the government, the conviction is a match with the “definition,” my client is an aggravated felon for having been convicted of an offense that is “sexual abuse of a minor.”

We have very deep disagreements with the government’s arguments.  In February, we will be submitting our reply to the govenrment’s brief.

The Supreme Court will hear oral arguments in our case on February 27, 2017.

Then, the Court will likely issue a ruling by June 2017.

Posted in Federal Court Litigation.