Esquivel Quintana: VICTORY!

On May 30, 2017, the U.S. Supreme Court issued the opinion in Esquivel-Quintana v. Sessions.  The Court unanimously reversed the decision of the Sixth Circuit, agreeing with us that a conviction for having consensual sex with a person at least age 16 is NOT “sexual abuse of a minor” under federal immigration law.

Justice Neil Gorsuch did not participate in this case, because he was not yet confirmed as a justice when the case was argued on February 27, 2017.

The other 8 justices all agreed that the immigration law at issue in this case – the defintion of the phrase “sexual abuse of a minor” – is not ambiguous with respect to whether consensual sex with a person age 16 or older is “sexual abuse of a minor.”  According to the unanimous decision of the Court, written by Justice Thomas, a conviction for such conduct is not an aggravated felony.  As a result, the Court did not need to address the competing demands of defence to the Board of Immigration Appeals (BIA) under Chevron, on the one hand, and the doctrine of lenity, on the other hand, which would lead to the conclusion that an ambiguous statute should be read in the manner most favorable to the person convicted of the crime.

The Court reaffirmed the importance of the categorical approach to determine whether a conviction is an aggravated felony under the immigration statute.  Most importantly, for our case, the Court emphasized the importance of determining the generic definition of the crime at issue, as explained in Taylor v. United States.  

Please click here for more information about Taylor v. United States.

As we had urged, the Court looked to the criminal laws of the 50 states and the District of Columbia to aid in the process of determining what the generic definition of “sexual abuse of a minor” should be in the context of consensual sex between two persons who do not share a position of trust or authority (such as teacher and student).  And, as we had explained in our briefs, most states set the age of sexual consent at 16, meaning that sex is only prohibited when the younger person is under age 16.

The Court declined to decide whether “sexual abuse of a minor” under the immigration statute requires a certain age difference between the persons, for example, 4 years.  The Court held squarely that, for consensual sex in which no special relationship of trust between the persons is involved, if the younger person is age 16 or older, then the conviction is NOT “sexual abuse of a minor,” regardless of the age difference between the persons.

For Juan Esquivel Quintana, the decision means that he is NOT an “aggravated felon” under immigration law.  His permanent resident status should be restored, retroactively.  We are making arrangements to help Juan to return to the United States as a permanent resident, a status he has held since he was 12 years old.

Esquivel Quintana: Argument at the Supreme Court

On February 27, 2017, the U.S. Supreme Court heard oral arguments in Esquivel-Quintana v. Sessions.

I have been representing the Petitioner, Juan Esquivel Quintana, since 2013.

For an introduction to the case, please see our dedicated case page.

To hear the audio recording of the oral argument, please click here.

You may view the transcript of the argument here.

At the Supreme Court, Jeffrey Fisher argued on behalf of Juan Esquivel Quintana. Allon Kedem argued the case for the Solicitor General.

During Jeffrey Fisher’s argument, the Justices were grappling with the question of Chevron deference, and the circumstances in which federal agencies, such as the Board of Immigration Appeals in our case, should be granted deference in their decisionmaking.

Perhaps the Justices were mindful of the distinct possibility that Judge Neil Gorsuch will be confirmed to fill the vacancy on the Supreme Court left after the passing of Justice Antonin Scalia.  Judge Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit, recently authored an opinion critical of the use of Chevron deference.

During the argument, it appeared that some of the justices, notably Justices Breyer and Kagan, were looking for a “third way” between granting Chevron deference, on the one hand, and completely withholding any deference, on the other.  Some of the justices appeared to express interest in determining the extent to which deference should be granted to a federal agency, based on the issue in question and how it relates to the expertise of the agency.

For example, during the Solicitor General’s argument, Justice Kennedy indicated that deference may be appropriate when the issue in question is within the expertise of the agency, but not necessarily when the issue in question is outside of the agency’s expertise.  Justice Kennedy asked, “Why does the INS have any expertise in determining the meaning of a criminal statute?”  Later, as a follow-up question, Justice Kennedy asked, “Why is INS in any better position to make that determination than the American Bar Association or the Forest Service?”

The Justices appeared skeptical about the application of the criminal rule of lenity in our case, and expressed concerns about the interaction of the criminal rule of lenity with Chevron deference.

Jeffrey Fisher reminded the Justices that the Solicitor General abandoned the reasoning that the Board of Immigration Appeals had set forth in its decision, and instead proposed a significantly more drastic and sweeping definition of “sexual abuse of a minor,” one based on definitions in Black’s Law Dictionary.  As Mr. Fisher pointed out, when reviewing the defintions of Black’s Law Dictionary, you reach the conclusion that the age of consent to sexual intercourse is 16.

During the Solicitor General’s argument, Justice Kagan pressed Allon Kedem on the reasoning behind the Solicitor General’s contention that “sexual abuse of a minor” exists in all criminal convictions of a sexual nature that involve a person under age 18, despite the fact that many state criminal statutes, for example, set the age of consent at either 16 or 17.  Justice Kagan elicited from Mr. Kedem that the sole basis of the Solicitor General’s reasoning is some definitions from Black’s Law Dictionary, and some very sparse legislative history from the time when Congress added the phrase “sexual abuse of a minor” to the list of aggravated felonies in the immigration statute in 1996.

Mr. Kedem appeared to run into trouble with the Justices even on the Solicitor General’s use of the dictionary definition.  Justice Kagan noted that the dictionary definition involves “illegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance.”  Justice Alito asked whether a stranger engages in sexual conduct (other than rape) with a person under age 18, whether that conduct would be included in the dictionary definition proposed by the Solicitor Geheral.

Justice Breyer followed up and asked Mr. Kedem whether such conduct would be included in the dictionary defintion.  Justice Breyer stated, “If somebody meets someone at a bar and doesn’t even know them and –and gets the person drunk and they go home and they have sex, all right, that would sound much more like sexual abuse of a minor than a –a senior in college dating and living with a –a sophomore.”  Yet, as Justice Breyer then stated, “there’s no acquaintance” in that example, and so it appears that that conduct would not be covered by the Solicitor General’s proposed definition.  Mr. Kedem did not answer the question.

The Supreme Court could decide to avoid the Chevron question in our case, as it has in prior cases in which it has considered the meaning of a term in the list of aggravated felonies in the immigration statute.  Or, the Court could issue a ruling in which it delineates the extent to which the Board of Immigration Appeals is to be granted deference in this case.

The Court could also address the question of lenity, although it appears that the Court might not reach that issue in its decision.

The Court will issue a decision within the next few months, by June 30 or earlier.

Esquivel-Quintana: Argument Preview

Below is an article I am writing, providing a preview of the argument about our case that will take place at the Supreme Court on February 27, 2017.  Before I get to the article, allow me to provide a few links:

Our Esquivel-Quintana v. Sessions Case Page

Our Opening Supreme Court Brief on the Merits

The U.S. Government’s Brief on the Merits

Our Reply Brief on the Merits

OK, now on to the article:

On Monday, February 27, the Supreme Court will consider whether a conviction for conduct that is perfectly legal in more than 40 states is an “aggravated felony” and grounds for automatic deportation under federal immigration law.

Esquivel-Quintana v. Sessions involves Juan Esquivel Quintana, a citizen of Mexico who entered the United States as a lawful permanent resident at age 12.  When Mr. Esquivel Quintana was 20 and 21 years old, he had consensual sex with his 16-year-old girlfriend in California.  Mr. Esquivel Quintana was convicted under California Penal Code 261.5(c), which criminalizes consensual sex between a person under age 18 and a person more than 3 years older.  California is one of only 7 states that criminalizes such conduct.  Most states set the age of consent to sexual intercourse at 16.

Federal immigration law deems a number of crimes “aggravated felonies.”  Among the list of designated crimes is “sexual abuse of a minor.”  A noncitizen who is deemed to have been convicted of an aggravated felony is subject to deportation and has virtually no possibility of avoiding that outcome.

While Mr. Esquivel Quintana remained in California, he was not apprehended by U.S. immigration officials, because of the Ninth Circuit’s decision in Estrada-Espinoza v. Mukasey, a 2008 unanimous en banc decision that had held, prior to Mr. Esquivel Quintana’s criminal matter, that a conviction under California’s 261.5(c) is not “sexual abuse of a minor” in the immigration statute, and thus not an “aggravated felony” under U.S. immigration law.

After Mr. Esquivel Quintana relocated to Michigan to be near his family, he was arrested and charged as an aggravated felon for having been convicted of a crime that amounts to “sexual abuse of a minor.”  The Sixth Circuit, which has jurisdiction over the state of Michigan, had no published decisions regarding the question, and the immigration judge in Detroit rejected Mr. Esquivel Quintana’s assertion that the Ninth Circuit’s decision in Estrada-Espinoza should be persuasive.  Instead, the judge concluded that a 1999 decision from the Board of Immigration Appeals (BIA), Matter of Rodriguez-Rodriguez, bound her to hold that Mr. Esquivel Quintana’s California conviction was “sexual abuse of a minor.”

The BIA concluded that Mr. Esquivel Quintana’s conviction was “sexual abuse of a minor,” holding that, in a case involving a person age 16 or 17, there must be a meaningful age difference between the persons having consensual sex in order for the conviction to amount to “sexual abuse of a minor.”  The Board declined to indicate a specific age difference, but held that in this case, three years was sufficient.

The Board specifically declined to define the phrase “sexual abuse of a minor,” and rejected Mr. Esquivel Quintana’s argument that the Supreme Court’s 1990 decision in Taylor v. United States required the Board to recognize a uniform, generic definition of that statutory phrase that considers federal law and the laws of the 50 states and that is consistent with a consensus definition of the crime.

The Sixth Circuit, in a 2-1 decision, upheld the BIA’s decision.  The majority concluded that Taylor v. United States does not apply to Mr. Esquivel Quintana’s case, because Taylor concerned a criminal sentencing statute not related to federal immigration law.  The Sixth Circuit deferred to the Board’s decision, citing the landmark 1984 Supreme Court case Chevron U.S.A. v. Natural Resources Defense Council.

Judge Jeffrey Sutton, in dissent, would have ruled in favor of Mr. Esquivel Quintana.  Judge Sutton concluded that the phrase “sexual abuse of a minor” is ambiguous, has applications to criminal law as well as immigration law, and is therefore a “hybrid” criminal/civil statute.  As a result, the criminal rule of lenity dictates that ambiguous criminal statutes must be construed in favor of defendants.  Judge Sutton further reasoned that statutes are not “chameleons,” and must mean the same thing in both criminal and civil contexts.  The ambiguous phrase “sexual abuse of a minor” must be construed in favor of Mr. Esquivel Quintana, with the result that his conviction is not “sexual abuse of a minor.”

Before the Supreme Court, Mr. Esquivel Quintana argues that the Court’s decision in Taylor v. United States requires judges to determine a uniform, generic definition of the crime in question, and that such a definition is based on a consensus view of how the crime is defined under federal and state criminal statutes.

In Taylor and in subsequent cases applying Taylor to immigration, the Supreme Court has applied the categorical approach, in which the Court looks not to the facts that led to the criminal conviction, but rather to the elements of the state statute of conviction, to determine whether the least culpable acts necessary to obtain a conviction under the state statute fall within the crime in the immigration statute.

According to Mr. Esquivel Quintana, the conduct criminalized by the California statute is legal in more than 40 states, as well as federal law, leading to the conclusion that, whatever “sexual abuse of a minor” means, the definition does not extend to consensual sex between a 21-year-old and a person who is almost 18.

Mr. Esquivel Quintana urges the Supreme Court to reject the government’s request for Chevron deference to the BIA’s approach to the case, and notes that the Supreme Court has never granted Chevron deference to the BIA’s interpretation of a generic crime.  Chevron comes into play only if the phrase “sexual abuse of a minor” is ambiguous.  Mr. Esquivel Quintana asserts that the Taylor analysis resolves the matter, in light of the fact that a large majority of states, and federal law, deem the conduct criminalized by the California law to be legal.

Any ambiguity on the question should be resolved by either of two distinct versions of the Rule of Lenity:  The Supreme Court has held in a number of cases that any ambiguity in deportation laws should be interpreted in favor of the noncitizen.

And in criminal law, the Rule of Lenity also dictates that ambiguities should be resolved for the defendant.  The phrase “sexual abuse of a minor” is a hybrid statute, with both immigration and criminal applications, and as Judge Sutton explained in his dissent in the Sixth Circuit decision, the statute must have uniform meaning in both criminal and civil contexts.

The government contends that Mr. Esquivel Quintana’s interpretation of the categorical approach is misguided.  According to the government, the first step of the categorical approach is to interpret the federal provision: here, the phrase “sexual abuse of a minor.”  The second step is to see if the conviction under the state statute – California 261.5(c) – falls within the federal provision. 

Although neither the BIA, nor the government in arguments before the Sixth Circuit, defined the phrase “sexual abuse of a minor,” the government asserts before the Supreme Court that the phrase encompasses “all sexual crimes committed against those under age 18,” relying on dictionary definitions and an “everyday understanding” of the phrase.  The government states that it is not helpful to canvass federal law and the laws of the 50 states, because the phrase “sexual abuse of a minor” was not defined at common law and has no established meaning in state law.  The government also argues that a survey of the laws of the 50 states would be impractical and burdensome for courts to apply.

If there is any lack of clarity regarding the meaning of “sexual abuse of a minor” in the immigration statute, the government urges the Court to grant Chevron deference to the BIA’s interpretation of the statute.  Under the first step of the categorical approach, according to the government, the Board is due deference to its interpretation.

After having determined that “sexual abuse of a minor” encompasses all sexual crimes committed against those below the age of 18, the government concludes that a conviction under the California statute fits within that interpretation of the federal statute.

In reply, Mr. Esquivel Quintana criticizes the government for relying on definitions cobbled together from a law dictionary to interpret “sexual abuse of a minor,” rather than relying on the laws of the 50 states, as well as a separate federal statute – 18 U.S.C. 2243 – titled “sexual abuse of a minor or ward,” which criminalizes sexual contact with a person under age 16.

The Court will need to decide whether, and to what extent, courts must follow the procedures the Court set forth in Taylor v. United States in cases considering allegations of “sexual abuse of a minor” and other crimes listed as aggravated felonies in immigration statutes.  The Court will also need to decide whether to invoke Chevron deference, or to decline to mention Chevron, as it has declined to do in other immigration cases reviewing the BIA’s rulings on generic crimes.

The Court could apply the Rule of Lenity to the hybrid criminal/civil statute at issue, as Judge Sutton urged in dissent in the Sixth Circuit ruling.

A decision on the case will likely issue by June.

Michael Carlin represented Mr. Esquivel Quintana in this case before the Board of Immigration Appeals and the U.S. Court of Appeals for the Sixth Circuit.  Before the U.S. Supreme Court, Mr. Carlin is co-counsel to Jeffrey Fisher, who will be arguing the case.

Plan Ahead for Immigration Enforcement

A lot of our attention in recent weeks has been focused on the Executive Order signed on January 27, 2017, regarding the ban on persons from certain countries.

But it is important to understand two other Executive Orders (here,  and here) signed two days earlier, on January 25, 2017.

For reasons not entirely clear, but probably as a result of these Executive Orders from January 25, it appears that U.S. immigration officials are increasing their activities in search of persons unlawfully in the United States.

It is also quite possible that U.S. immigration officials might be increasing efforts to locate permanent residents who have criminal convictions that might make them subject to deportation.

Before discussing the two Executive Orders signed on January 25, 2017, I want to provide the following suggestions for people to do immediately:

Permanent residents. Carry your green card with you at all times. Keep a photocopy of your green card in a safe place at home.

Lawfully present nonimmigrants (students, visitors, employees, and others whose authorization to be in the US has not expired). Carry with you at all times your EAD, I-94 card, passport with entry stamp, or other proof of lawful presence. Carry the original with you and keep a photocopy in a safe place at home.

Persons unlawfully present in the United States for more than 2 years. Keep with you at all times evidence that you have been present for at least 2 years. Such evidence might include utility bills with your name going back 2 years, pay stubs with your name going back 2 years, or other documentation going back at least 2 years. Keep a photocopy at home. Have a plan in place with your loved ones for what happens if you don’t come home one day. Do not presume you will be allowed to make a phone call.

Persons unlawfully present in the United States for less than 2 years. Have a plan in place with your loved ones for what happens if you don’t come home one day, e.g. who picks up the kids from daycare, etc. Do not presume you will be allowed to make a phone call.

On January 25, 2017, an Executive Order titled “Enhancing Public Safety in the Interior of the United States” was signed.  This Executive Order (EO), among other things, makes it a priority of U.S. immigration officials to seek the removal of non-citizens who are deportable under existing immigration laws, for such things as certain criminal convictions, espionage, terrorism, misrepresentations to U.S. immigration officials.

More importantly, the EO also makes a priority for removal any persons unlawfully in the United States who:

  • have been convicted of any criminal offense;
  • have been charged with any criminal offense, where such charge has not been resolved;
  • have committed acts that constitute a chargeable criminal offense;
  • have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • have abused any program related to receipt of public benefits;
  • are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Considering all of these different priorities for enforcement, it appears that, in effect, all persons unlawfully present in the United States could be included as a priority for removal.

 Also on January 25, 2017, another EO, titled “Border Security and Immigration Enforcement Improvements,” was signed.  This EO discusses the construction of “the Wall” along the U.S.-Mexican border.  But it also does much more.  The EO:

  • orders the construction of new detention facilities near the U.S.-Mexican border
  • directs asylum officers and immigration judges to handle cases at those detention facilities
  • directs the hire of 5,000 new Border Patrol agents
  • empowers state and local law enforcement officials to “perform the functions of an immigration officer … to the extent permitted by law.”
  • directs DHS to take action to apply “expedited removal” to the maximum extent permitted by statute: to any individual who has not been “admitted or paroled” who cannot prove she or he has been continuously present in the United States for 2 years. 

As a result of this final point, I suggest that persons present in the United States without permission who have been in the United States for at least 2 years, carry with them documents to prove their presence in the United States for at least 2 years, as described above.

Thank you for your time.

The “Travel Ban” Executive Order: Today’s Decision by the Ninth Circuit, and Beyond

On January 27, 2017, the President issued an Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”  The EO does many things, including suspending entry to the United States of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  The EO also suspends the entry of all refugees to the United States.

On February 3, 2017, a federal judge in Seattle issued a temporary restraining order (TRO) of the EO, with nationwide coverage.  As its name suggests, the TRO is temporary, not permanent.  The case remains pending in the Seattle court.

The federal government appealed the TRO to the Ninth Circuit Court of Appeals.  A three-judge panel heard the appeal.  One of the judges was appointed by President Jimmy Carter, a Democrat.  One of the judges was appointed by President George W. Bush, a Republican.  And one of the judges was appointed by President Barack Obama, a Democrat.

Today, the 9th Circuit issued a unanimous decision, rejecting the federal government’s arguments, and leaving the TRO in place.

The 9th Circuit concluded that it has jurisdiction, or legal authority, to hear the appeal.

The 9th Circuit concluded that the states of Washington and Minnesota have “standing” in this case.  This means that the 9th Circuit concluded that the states basically have a legal basis to present their claim, because the travel ban harms interests that are important to the states, especially the abilities of certain persons to enter the United States to teach and do research in state universities.

The 9th Circuit concluded that the courts have the authority to review the legality of the EO.

The 9th Circuit stated that in order for the federal government to win the appeal, it must show (mainly) two things:  (1) that the federal government is likely to succeed in the main arguments of the case when it returns to the district court for further review; and (2) that the federal government will be “irreparably injured” if the TRO remains in place.

The 9th Circuit spent most of the decision on whether the federal government is likely to succeed on the merits of the case, and focused on the Due Process Clause of the Constitution.  The Due Process Clause states that the government may not deprive individuals of their life, liberty, or property, without due process of law.  The 9th Circuit stated that the government can’t take away these rights without giving affected persons “the opportunity to present reasons not to proceed with the deprivation and have them considered.”

The federal government agrees that the EO does not provide affected persons with any opportunity to contest the ban.  The federal government’s argument is that the persons affected by the EO don’t have any rights under the Due Process Clause of the Constitution.

The 9th Circuit rejected the federal government’s argument. The 9th Circuit stated that the Due Process Clause is not limited to U.S. citizens.  Citing a 2001 case from the U.S. Supreme Court, Zadvydas v. Davis, 533 U.S. 678, 693 (2001), the 9th Circuit stated that the Due Process Clause “applies to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent.”  The 9th Circuit further stated that these rights “also apply to certain aliens attempting to reenter the United States after traveling abroad,” citing another case from the U.S. Supreme Court, Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).

The 9th Circuit summarized the arguments of Washington and Minnesota regarding the assertion that the EO discriminates on persons on the basis of religion, in violation of the First Amendment of the Constitution, which prohibits any law respecting an establishment of relation.  The 9th Circuit decided not to base today’s decision on the religious discrimination argument.

The 9th Circuit, in a unanimous decision, denied the federal government’s request to suspend the TRO.  This means that the judge’s order suspending the EO remains in place for now.

It is unclear what the White House will do now.  The White House could decide to appeal this decision to the U.S. Supreme Court.  At this time, the Supreme Court has 8 justices.  If the Supreme Court ends up in a 4-4 tie, then the 9th Circuit’s decision will remain in place, which would mean that the EO would remain suspended.

It is important to remember that today’s 9th Circuit decision is only about whether the TRO – the temporary restraining order – should remain in place.  The case, at some point, will likely return to the federal district court in Seattle for a more thorough set of arguments about the legality of the EO.

Executive Order – Restrictions on Entries

On Friday, January 27, 2017, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Sadly, the Executive Order does the following things, effective immediately:

  1. The Executive Order places a ban on entry of Syrian refugees indefinitely. The Order does not give any date on which this ban might be lifted.  The Order states that the ban will remain in place until “sufficient changes have been made … to ensure that admission of Syrian refugees is consistent with the national interest.”
  1. The Executive Order suspends the admission of all refugees around the world for at least 120 days.
  1. The Executive Order reduces the number of refugees to be admitted to the United States in this fiscal year (October 1, 2016 to September 30, 2017) from 110,000 down to 50,000 persons. This is the lowest level in about a decade.
  1. The Executive Order bans the entry of all persons who are from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, for at least 90 days. This list of countries may be found in a list here.  The U.S. Government could update this list of countries at any time.
  1. Persons who are not U.S. Citizens, including Lawful Permanent Residents of the United States (green-card holders), who have ties to Iraq, Iran, Libya, Somalia, Sudan, Syria, or Yemen, should not depart the United States at this time, not even to travel to Canada or other countries. If you leave the United States, you might not be allowed to enter the United States.
  1. S. Citizens with ties to these countries will not be refused entry, but should expect long delays upon return to the United States, including the possibility of extensive questioning, searches of luggage, searches of computers and phones, and body searches, and other intrusive acts by U.S. immigration officials.
  1. The Executive Order states that “The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.” Although the Executive Order does not contain the words “Islam” or “Muslim,” it appears that this language in the Executive Order expresses a prejudiced and ignorant view towards persons of the Muslim faith. 
  1. The Executive Order requires in-person interviews for most non-immigrant visa applicants, regardless of their country of origin. This will likely slow down the issuance of all visas at many U.S. Consulates throughout the world, because of the hugely increased workload resulting from the requirement of in-person interviews.

Considering ‘Crime Of Violence’ Vagueness At The Supreme Court

In June 2015, the U.S. Supreme Court held that a criminal statute is unconstitutionally vague. At oral argument on January 17, 2017, the Supreme Court considered whether a different law, bearing a strong resemblance to that vague statute, is also unconstitutionally vague.

Lynch v. Dimaya involves a lawful permanent resident with two California burglary convictions. The federal government charged James Garcia Dimaya as an “aggravated felon” under an immigration statute, 8 U.S.C. § 1101(a)(43)(F), for having committed a “crime of violence.” That section of the immigration law references another federal statute, 18 U.S.C. § 16, which defines “crime of violence.” At issue in Lynch v. Dimaya is § 16(b), which states:

any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The immigration judge in Dimaya’s case agreed with the government, and ordered his removal as an aggravated felon for having been convicted of a “crime of violence” under 16(b). Noncitizens deemed to be aggravated felons are subject to virtually automatic removal from the United States. The Board of Immigration Appeals agreed with the immigration judge, and dismissed Dimaya’s appeal.

The Ninth Circuit, however, agreed with Dimaya’s argument that 16(b) is unconstitutionally vague, based in large part on the Supreme Court’s June 2015 decision in Johnson v. United States, holding that the residual clause of the Armed Career Criminal Act (ACCA) is vague as a violation of the Constitution’s right to due process. The ACCA residual clause reads:

otherwise involves conduct that presents a serious potential risk of physical injury to another.

Representing the government before the Supreme Court, Edwin S. Kneedler argued that the court should apply a more relaxed standard of vagueness in this case, because it is an immigration proceeding — a civil matter — rather than a criminal proceeding. Kneedler asserted that the relaxed standard is appropriate because “the U.S. Constitution does not require prior notice that conduct will give rise to removal,” and because immigration laws are administered through broad delegations of authority to administrative agencies, in contrast to criminal laws, whose meanings are interpreted by Article III judges.

Kneedler also distinguished 16(b) from the ACCA residual clause, which had created uncertainty because harms could occur even after the offense was committed, while 16(b) asks “whether the offense by its nature presents a substantial risk that physical force will be used against the person or property of another,” and “confines the analysis in both a temporal and functional sense to the elements of the offense. You don’t look at what conduct might have happened afterward.”

In contrast to the steady stream of cases presented to the courts of appeals and the Supreme Court regarding the ACCA residual clause, Kneedler maintained that the courts did not see many cases attacking 16(b). In effect, as Justice Elena Kagan observed, “it seems that everybody is getting along just fine.”

Kneedler also returned several times to the Supreme Court’s unanimous 2004 decision in Leocal v. Ashcroft, which analyzed 18 U.S.C. § 16 and concluded that a noncitizen’s conviction for a DUI incident involving injury to others was categorically not a crime of violence, and thus not an aggravated felony. In the decision, the court referred to burglary as “a classic example of a crime of violence.”

Justice Ruth Bader Ginsburg pointed out that in arguments to the court in Johnson in 2015, the government argued that if the ACCA residual clause was unconstitutionally vague, then 16(b) would be vulnerable to the same claim of vagueness.

Justices Kagan and Sonia Sotomayor expressed deep skepticism that the statute in this case is meaningfully different than the statute the court found unconstitutionally vague in Johnson. Justice Sotomayor stated that the question of what constitutes ordinary burglary “was at the center of Johnson. Why isn’t it at the center here?”

When Kneedler asserted that the phrase “by its nature” places meaningful and clarifying limitations on 16(b), Justice Kagan questioned whether the “by its nature” language made the statute any less vague than the ACCA residual clause, and asked, “How does one go about deciding what kind of conduct the ordinary case of a crime involves? A statistical analysis of the State reporter? A survey? Expert evidence? Google? Gut instinct? So that’s a multiple-choice test. What do we do?”

Justice Anthony Kennedy noted the court’s decision in Jordan v. de George, a 1951 immigration case in which the court applied the same “void for vagueness” standard that it applied in criminal cases. Kneedler countered that the parties in de George did not brief the issue, so that aspect of the decision should not be given great weight, and added that the ex post facto clause of the Constitution does not apply to immigration, so “a person can be removed for conduct that was not a basis for removal before you engaged in that conduct, criminal or not.”

Justice Sotomayor replied that “that observation was at a time before the Draconian effects of removal and deportation came into effect,” and added that “we have often said that vagueness depends on the gravity of what is at stake. Today what’s at stake is a lot more than what was at stake decades ago.”

E. Joshua Rosenkranz, on behalf of Dimaya, argued that the two factors that doomed the ACCA residual clause as unconstitutionally vague — hypothesizing the ordinary case of a set of elements, and then estimating the degree of inherent risk — are also present in 16(b).

In response to Kneedler’s argument that the courts have not been saddled with interpretive conundrums involving 16(b), Rosenkranz replied that every single case that the Supreme Court decided regarding the ACCA residual clause had been presented to the court along with simultaneous petitions for certiorari in the 16(b) context, and the court would grant, vacate and remand (GVR) the 16(b) cases, and then the lower courts and the Supreme Court would cross-reference the ACCA residual clause cases into 16(b), treating them equivalently.

Rosenkranz also stated that many of the sorts of cases that the Supreme Court had decided regarding the ACCA residual clause are appearing again in the lower courts, this time regarding 16(b). Rosenkranz also replied that “it is simply not true to say that ‘everyone is getting along just fine in the lower courts.’” Rosenkranz indicated that he and amicus National Immigration Project have identified 10 circuit splits.

Justice Ginsburg countered that 16(b) may be viewed as more precise than the ACCA residual clause, because it is limited to the commission of the offense, and that the offender must be the person who uses the force, and it covers the use of force against the victim’s property.

Rosenkranz replied that courts have uniformly held that the phrase “in the course of” does not entail a temporal limitation. Moreover, courts will still need to be imagining the ordinary case. Finally, the textual differences between the ACCA residual clause and 16(b) are not meaningful —  the clauses say “the same thing in different words.”

Justice Stephen Breyer expressed concern that invalidating 16(b) as unconstitutionally vague could invite future litigation regarding assertions of vagueness in other civil cases, involving the clarity of terms such as “moral turpitude, unfair competition, just and reasonable rates, public convenience and necessity” and “a hundred others.” Justice Samuel Alito also appeared uncomfortable with the idea of invalidating 16(b), positing that a host of statutes and terms could be attacked as vague.

Justice Alito asked a series of questions focused on whether or not a statute with civil and criminal applications must be subjected to the same test for unconstitutional vagueness in both contexts. In other words, could a statute be unconstitutionally vague in a criminal application while being constitutional in a civil application, such as in an immigration case?

Rosenkranz replied that the court’s decision in Jordan v. de George settled the question —  that the interpretation of a statute must be the same in the immigration context as it is in the criminal context.

Justice Alito took issue with Rosenkranz’s interpretation of Jordan, and indicated instead that an alternative reading is that it did not prohibit a relaxed vagueness standard for a statute applied in the immigration context. Rosenkranz replied that in a number of cases, the Supreme Court held statutes to the same vagueness standard, whether in civil or criminal applications.

Rosenkranz then turned to the absurd effect of a disparate standard for criminal and civil applications of the statute. Supposing that the court concluded that 16(b) passes constitutional muster in immigration cases but is unconstitutionally vague in criminal applications, then Dimaya could be deported as an aggravated felon in an immigration case, then return to the United States the following day and be found to be not subject to criminal sanctions for re-entry as an aggravated felon.

Rosenkranz concluded by highlighting the practical consequences of the case. Holding 16(b) to be constitutional will lead to a series of cases parallel to the cases that the Supreme Court had to address regarding the ACCA residual clause. Rosenkranz stated that the Supreme Court should avoid a repeat of those cases, and end the conflict with this case, by holding that 16(b), like the ACCA residual clause, is unconstitutionally vague.

The Supreme Court will need to decide whether the “void for vagueness” standard in the immigration context is the same as the standard used in criminal cases. Adherence to Jordan would lead the court to apply the vagueness standard in this case in the same manner as in criminal cases. Justice Kennedy appeared to place considerable weight on the Jordan precedent.

The Court could decide, instead, to depart from Jordan on the ground that the vagueness issue in that case had not been briefed by the parties, or on the interpretation suggested by Justice Alito. Such a departure would result in the court applying a more relaxed vagueness standard in this case because it is a civil case. The court would face the task of delineating how to apply the vagueness test in a less stringent way. The justices are also likely concerned that a strict application of the vagueness test in this case has the potential to open the courts to a flood of civil litigation, as Justices Breyer and Alito had suggested.

Depending on the outcome of exactly how to apply the vagueness standard in this case, the court will also need to decide whether 16(b) suffers from the same vagueness as the ACCA residual clause, or whether the textual differences between the two clauses result in a meaningful distinction. It appears likely that Justices Kagan and Sotomayor are prepared to conclude that 16(b) does not pass the test. It is less clear whether Chief Justice John Roberts and Justice Ginsburg would reach the same result, given their comments suggesting that 16(b) is more precise than the ACCA residual clause.

The Supreme Court is expected to rule on the case by June 2017.

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.

Preparing for Immigration Enforcement

Susan Reed, the Managing Attorney at the Michigan Immigrant Rights Center (MIRC), has prepared a 4-minute video that provides some tips on how you can prepare yourself and your family for the possibility of a visit from Immigration and Customs Enforcement (ICE).  I recommend that you take four minutes to watch this video, and consider the tips that MIRC suggests.

Thanks to Susan Reed and MIRC for your efforts!

Esquivel-Quintana: It’s Great to Have Friends!

Last week, a number of organizations joined forces to file three separate amicus briefs in support of our case – Esquivel-Quintana v. Lynch – before the Supreme Court.  Amicus briefs, or “friend of the court” briefs, are legal arguments submitted to the court that focus on certain aspects of the case that are particularly important to the persons or organizations submitting the briefs.

After reading these three amicus briefs, my client and I are very grateful to have such great “friends of the court.”

For more information about the case, please visit our dedicated page.

The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief, detailing the reasons why the Supreme Court should consider ruling in our favor on the basis of the Criminal Rule of Lenity.  

(I’d like to thank NACDL for presenting an excellent amicus brief in support of our case.  But I’d also like to thank them for being the only organization to file an earlier amicus brief in support of our case, and at an even more crucial time – when we were asking the Supreme Court to agree to hear our case.)

When we presented Juan’s case before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Jeffrey Sutton was particularly interested in the Criminal Rule of Lenity.  It is worth noting that Judge Sutton had clerked for Supreme Court Justice Antonin Scalia, a strong supporter of the Criminal Rule of Lenity.  We lost at the Sixth Circuit by a 2-1 vote. Judge Sutton, in dissent, wrote a powerful argument that we should have won the case based on the Criminal Rule of Lenity.  The Supreme Court has a number of different ways in which it could decide our case, and the Criminal Rule of Lenity is one important way.

Another option is for the Court to conclude that, when Congress amended the immigration law to include the phrase “sexual abuse of a minor” in the list of aggravated felonies, Congress intended that phrase to be defined by a federal law titled “sexual abuse of a minor or ward.”  That is the main argument in another powerful amicus brief, submitted by a coalition of three organizations:  The Immigrant Defense Project (IDP), the Immigrant Legal Resource Center (ILRC), and the National Immigration Project of the National Lawyers Guild (NIPNLG).  (An extra shout-out to NIPNLG, whose brilliant attorneys also provided a wonderful amicus brief in our case at the Sixth Circuit.)  This amicus brief details the process in which the immigration law and the criminal law were amended by Congress, and makes an elegant argument that, based partly on the timing of the amendments of the immigration and the criminal laws, Congress intended that the phrase “sexual abuse of a minor” in the immigration law to be defined by the statute at 18 U.S.C. Section 2243.

Finally, the National Immigrant Justice Center (NIJC) and the American Immigration Lawyers Association (AILA) argue in their amicus brief that another canon of statutory construction – the “rule of immigration lenity” – should be employed to construe immigration law in favor of noncitizens where, as here, the consequence of an “aggravated felony,” banishment from the United States for life, is overly harsh and a grossly unfair punishment for a conviction for conduct that is perfectly legal under federal law and in 43 states and the District of Columbia.  (And another “thank you” to NIJC for providing an excellent amicus brief earlier at the Sixth Circuit.)

The amicus brief filed by NIJC and AILA also argue that immigration judges should be allowed the discretion to consider noncitizen’s applications for relief from removal, such as asylum, cancellation of removal, and other forms of relief in Immigration Court.  These forms of relief are unavailable to persons whose convictions are labeled as “aggravated felonies.”  The amicus brief ends with some compelling examples of other noncitizens whose low-level criminal convictions place them in jeopardy of being banished forever as “aggravated felons.”

We are deeply grateful to the organizations who dedicated their precious resources of time, experience, great effort, and superior intellect to prepare and present amicus briefs in support of our case.  We are very fortunate to have such great “friends of the court.”  Thank you.

We look forward to the oral argument at the Supreme Court on February 27, 2017.

For more information about the case, please visit our dedicated page.  Thank you.