Provisional Waivers of Unlawful Presence

If you entered the United States without inspection and have become eligible for a family-based permanent resident (green card) status, you might need to leave the United States and go to your home country for an interview at the consulate or embassy.   There are some exceptions to the requirement to leave the United States.  The officer who conducts the interview can order you to stay in your country for 3 years (if you have been in the U.S. without authorization for more than 180 days but less than a year), or 10 years (if you have been in the U.S. without authorization for more than a year).  These penalties are known as 3-year and 10-year unlawful presence bars.  If you are found inadmissible to return to the U.S., you can apply for a waiver, which is like asking for legal forgiveness.  If your application is approved, your 3-year or 10-year bar will be waived.

The law allows you to apply for a waiver after your I-130 petition is approved and before you go overseas for an interview in your home country.  Getting waivers approved is complicated, and we recommend that you have the assistance of an experienced immigration attorney to help you through the process.  If your waiver is approved, you can leave the U.S., go to the interview, and if the consular officer approves your immigrant visa, you can return to the U.S. and become a lawful permanent resident.

Now, the question is, are you eligible for a provisional unlawful presence waiver?

  • Are you at least 18 years old?
  • Are you physically present in the U.S.?
  • Do you have a qualifying immediate relative to petition for you? This would be a U.S. citizen or permanent resident who is either your spouse, your parent if you are unmarried and under 21, or your child if he or she is 21 or older.
  • Can you prove that your permanent resident or U.S. citizen spouse or parents will suffer extreme hardship if you are inadmissible to return to the U.S.?
  • Are you inadmissible on criminal, fraud, or other grounds?

If you answered yes to the first four questions and no to the last one, you probably may apply for a waiver.  If you are in removal proceedings, you can apply for the waiver only if your case has been administratively closed.  We advise you to apply as soon as possible before your case is re-calendared.

Please note that, in order to be eligible for this type of waiver, you must have a spouse or parent who is a U.S. citizen or lawful permanent resident (green card holder).

The most important aspect of the waiver is to demonstrate that your qualifying relative or relatives will suffer extreme hardship if they remain in the U.S. without you or if they follow you to your home country for the duration of the 3-year or 10-year bar.  The relative who will suffer extreme hardship does not need to be the same one who petitions for you.

The following are some examples of hardship your qualifying relative might experience if he or she stays in the U.S. without you during the 3-year or 10-year bar: He or she depends economically on your income and will not be able to provide for the household if you are overseas, he or she has a medical condition and depends on your care, he or she cares for a family member and will be unable to continue caring for that person without your support, or you are the caregiver of your qualifying relative’s child or children, and your relative cannot afford childcare if you are overseas.

In the case that your relative follows you to your country, you will need to show, for example, that your relative’s medical condition will be poorly treated or too expensive to treat in your country, your relative does not know the language of your home country, he or she is the primary caretaker of a sick family member within the U.S., your relative will not be able to work or will likely receive minimum wage in your country, he or she will be unable to continue his or her education in your country, he or she has children from a previous relationship who will not be allowed to live with you or visit due to custody issues, he or she has debt in the U.S. that cannot be paid from your country, or, last but not least, your country has a high rate of violence or is at war.  You may think of other types of financial, medical, emotional, or security-related hardship for your waiver application.

To date, our office has obtained 47 waiver approvals, including 3 applications that USCIS initially denied, but later approved on appeal.  All 47 clients received waiver approvals.  Although we cannot predict whether USCIS will approve a waiver application, we have a strong record of success.

Another New Policy: Indefinite Detention for Some Asylum Seekers

Attorney General William Barr recently issued a decision that overturns a policy that is at least 14 years old, and which threatens to keep many asylum applicants in jail while their cases are pending for months or years.

In Matter of M-S-, issued on April 16, 2019, the Attorney General decided that for persons who enter the United States without permission and who are encountered by U.S. immigration officials shortly after their entry, and who seek asylum, these persons are not eligible for bonds to be released from detention.  The only options for these persons are to remain in detention until the completion of their cases in Immigration Court (which could last for months or years), or to be released from jail on parole from U.S. immigration officials.

The Attorney General’s decision overturns a decision of the Board of Immigration Appeals from 2005.

Because the Attorney General’s decision has the potential to require the detention of so many persons, the Department of Homeland Security requested that the Attorney General delay the effective date of the decision.  The Attorney General agreed, and has delayed the effective date of the decision for 90 days, so that U.S. immigration officials may acquire more facilities to detain asylum applicants.  It appears that the new policy will go into effect on or around July 15, 2019.

The Attorney General’s decision appears to be yet another policy shift by the Trump Administration to try to discourage persons from applying for asylum and to make it as difficult as possible for those asylum applicants to navigate the legal system.  Winning asylum in the United States is difficult even under the most favorable conditions.  Those persons seeking asylum while in jail face many more obstacles.  It is much more difficult to meet with attorneys and others who wish to help the persons prepare their cases.  There is much less time to prepare cases, because detained persons are typically on court schedules that progress much more quickly that those who are not in jail.  It is much more difficult for jailed persons to communicate with family and friends to help to prepare the case and obtain documents in their home countries to help prove their asylum claims.

The Trump Administration will also further burden U.S. taxpayers by spending more money on detaining asylum applicants for months or years at a time.

As with other new policies, the Attorney General’s decision in Matter of M-S- will very likely be appealed in court.  The final outcome of the new policy is uncertain.

“Remain in Mexico” Policy: Devastating for Asylum Seekers

By federal law, an immigrant may seek asylum at any port of entry or from anywhere inside the United States.   Immigrants seeking asylum have been allowed to remain in the United States, pending a decision on their case.  A new Trump Administration policy threatens this process.

On January 24, 2019, the Department of Homeland Security (DHS) began carrying out the “Remain in Mexico” policy, formally known as the Migrant Protection Protocols, at the San Ysidro port of entry.  This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.

There are few exceptions to the policy.  Unaccompanied minors, citizens and nationals of Mexico, and anyone who fears persecution in Mexico may remain in the United States.  However, the burden is on the asylum seekers to establish that they are “more likely than not” to face persecution on the account of a protected ground in Mexico if they wish to remain in the United States.

In addition to imposing a more stringent standard for asylum seekers, the “Remain in Mexico” policy jeopardizes an asylum seeker’s access to legal counsel.  United States Citizenship and Immigration Services (USCIS) has stated that they are unable to provide access to immigration attorneys during the assessment of an asylum claim between the asylum seeker and a USCIS officer.  An asylum seeker may not apply for appeal or reconsideration of the assessment made by USCIS.

Asylum seekers awaiting their hearing in Mexico will face difficulties in finding a U.S. based immigration attorney to guide them and prepare them for their hearing.  The “Remain in Mexico” policy also imposes increased burdens on U.S. based immigration attorneys who wish to represent asylum seekers who are forced to remain in Mexico.  Finding a means of communication between clients and attorneys will prove difficult across international borders.

The “Remain in Mexico” policy jeopardizes the safety of asylum seekers while they remain in Mexico.  It is likely that they will face exposure to kidnapping, murder, assault, and other types of harm based on the current country conditions in Mexico.  While the Mexican government has announced that it will give protection to asylum seekers affected by the policy, no additional details have been given including where asylum seekers will live or in what type of housing.

On April 8, 2019, a federal judge in San Francisco halted the “Remain in Mexico” policy, following a legal suit brought by asylum seekers and other organizations represented by the American Civil Liberties Union (ACLU).  The judge issued a preliminary injunction, ruling that the plaintiffs were likely to show that the policy violated federal regulatory law.

The Ninth Circuit appeals court reinstated the policy on April 12, 2019.  This reinstatement will remain in force while the parties submit arguments to the court addressing the government’s desire that the policy remain in place throughout the whole appeals process.  Whether the government at this time will continue returning asylum seekers to Mexico remains to be seen.

The process of seeking asylum in the United States already imposes a high burden on asylum seekers who seek refuge in this country.  The “Remain in Mexico” policy places additional hurdles that jeopardize the safety of asylum seekers as well as their access to legal counsel.  This policy sets forth a more stringent standard that asylum seekers must face in order to establish their fear of return.  Whether this policy will eventually be struck down by the federal courts hangs in the balance.

Citizenship for Children and Stepchildren

If you are in the process of becoming a U.S. citizen, also called naturalizing, and you have children and/or stepchildren, you are probably wondering what your naturalization will mean for your kids if they are not already U.S. citizens.  It is possible for your children or stepchildren to become U.S. citizens automatically when you do, but your family has to meet specific criteria in order for this to happen.  The criteria for a biological child to automatically become a citizen when you do also apply to your stepchild, but there are a few extra requirements for stepchildren.

Biological Children: In order for your biological child to automatically gain citizenship when you do, the following conditions must apply:

  1. The child must have one parent who is a U.S. citizen, so that would be you once you are sworn in at your naturalization ceremony.
  2. The child must be under the age of 18 when you naturalize.
  3. The child must be a lawful permanent resident, meaning the child is a green card holder.
  4. The child must be residing in the U.S. in the legal and physical custody of the U.S. citizen parent. That means that you, the parent applying for citizenship, need to be the legal guardian of your child. Additionally, the child needs to be living with you.

If your biological child meets all four of these criteria, the child will become a U.S. citizen when you do and can receive a certificate of citizenship and a U.S. passport.  However, if the child is missing just one of the above requirements, he or she needs to apply for citizenship on his or her own after being a permanent resident for 5 years, or 3 years if he or she has been married to a U.S. citizen and been a permanent resident for 3 years.

Stepchildren: As stated above, in order to get automatic citizenship when you naturalize, your stepchild will need to meet all of the same criteria as your biological child, plus a few more.  The only way for your stepchild to gain citizenship automatically when you do is if your family meets all of the following requirements:

  1. The child must have been in the legal and physical custody of the permanent resident stepparent for at least 2 years. This means you need to have legally adopted your stepchild over 2 years ago and lived in the same home as him or her for at least 2 years.
  2. The child must have been under the age of 16 when legally adopted by you.
  3. The child’s legal parent-child relationship with his or her previous parent needs to be terminated. For example, if you are married to the child’s mother, you would need to make sure the child is no longer in the legal custody of the father.
  4. The child must have one parent who is a U.S. citizen, so that would be you once you are sworn in at your naturalization ceremony.
  5. The child must be under the age of 18 when you naturalize.
  6. The child must be a lawful permanent resident, meaning the child is a green card holder.
  7. The child must be residing in the U.S. in the legal and physical custody of the U.S. citizen parent. That means that you, the parent applying for citizenship, need to be the legal guardian of the child. You would, of course, already be the legal guardian if you adopted your stepchild.  Additionally, the child needs to be living with you.

The main difference between getting your biological child and getting your stepchild citizenship automatically when you do is that you need to have legally adopted your stepchild at least 2 years ago, and you need to have lived with him or her for at least 2 years as well.  Only if you meet all seven of the criteria can your stepchild automatically become a U.S. citizen when you naturalize.

What if your stepchild doesn’t meet all of the above requirements?  You can still petition for your stepchild to become a permanent resident, even if you haven’t legally adopted or lived with him or her.  You can do this if they are inside or outside of the country.  An immigration attorney can help you through this process to get your stepchild permanent resident status, so he or she can one day apply for citizenship.

See our recent blog post, “The Benefits of Citizenship,” if you want to learn about the advantages your children and/or stepchildren will have if they too become citizens.

The Benefits of Citizenship

If you have been a permanent resident for over five years, or three years if you are married to a U.S. citizen, you should consider citizenship.  Some of the advantages of becoming a U.S. citizen are the right to vote, run for elected office, work for the government, and even change your name. Becoming a citizen, also known as naturalization, can also protect you from deportation, of which even permanent residents are at risk.

Maybe the most important benefit of becoming a U.S. citizen is the right to vote to elect representatives.  When the people have the right to choose who will represent them, they are participating actively in the development of their communities.  When voters make a conscious vote in their local elections, years later they might be able to vote for the same person in state or federal elections.  In the 2018 midterm election more women were elected than ever before.  This is a clear example of how conscious voters influence the future of the country.  New citizens can also participate as candidates in elections!

Another crucial reason to naturalize is that U.S. citizens convicted of crimes do not face deportation consequences.  However, non-citizens, even permanent residents, can be deported for a variety of convictions such as violating drug laws, domestic violence, shoplifting, and other crimes, major and minor.  Even if the crime was committed decades ago, legal grounds for deportation exist for non-citizens.  Becoming a U.S. citizen will give you the peace of mind that any crimes from your past or future will not lead to a deportation order in the present.

Also, a requirement for some government jobs is to be a U.S. citizen.  Even if your education or work experience is high, you will not be able to obtain certain jobs in the government or for contractors of the government if that job requires that the applicant is a U.S. citizen.  If you become a U.S. citizen, you will have more options to apply for jobs.

Finally, if you dislike your middle name or have had a lot of problems because your name or last name(s) are constantly misspelled or pronounced incorrectly, you will have the opportunity to change it when you apply for your naturalization.  The best part is that you won’t need to pay an extra fee for that.  You can even choose to change to a totally different name.

Do not procrastinate the application for naturalization.  Even if you have had encounters with the law different from traffic tickets, you might be eligible for naturalization.  Depending on the country of your nationality, you may be able to have dual citizenship.  An immigration attorney can help you to apply for naturalization, so you can protect yourself from deportation and have the advantages that U.S. citizenship will offer you.

Detention without a bond hearing

A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.

The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c).  The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”

Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody.  If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”

But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.

In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”

Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.

Patience required

Do you have conditional permanent residence? You will probably need some patience. If you married a U.S. citizen and obtained permanent residence less than two years after your marriage, then your permanent residence is conditional, which means that your first permanent residence card has a validity of two years. Three months before your card expires, you will need to submit a petition to remove the conditions of permanent residence.

Depending on your location, your petition will be processed by one of the four USCIS centers that handle them. The time it takes for each of the centers to process your application varies from 14.5 to 23 months. In some cases, the process can take up to 43 months. Yes, you read that right: in some circumstances, USCIS could take 3 years and 7 months to process the petition.

Normally, a few weeks after USCIS receives your petition, they will send you a receipt for the payment of fees in which they assign you a receipt number. The receipt will indicate that if you filed timely, you will have an 18-month extension to your permanent resident status.

Unfortunately, some applicants have had to wait weeks or months to receive that important notification in which USCIS grants them an extension of 18 months to their permanent resident status. We understand that this creates uncertainty, especially for those who need to travel abroad.

USCIS is constantly modernizing and automating processes. Every day, the agency processes thousands of requests, and with USCIS errors, applicants must prepare to wait a long time, usually at least 14 months, for the petition to be processed. If approved, you will have your second permanent residence card, now with a validity of 10 years.

For many people who file the petition to remove conditions, they become eligible to apply for U.S. citizenship while their petition to remove conditions is still pending. In fact, filing for naturalization can speed up your process. When the application for naturalization is made, there is an opportunity to provide more evidence that reinforces the request to remove the conditions. Part of the process in both includes an interview. USCIS often conducts both interviews on the same date.

Some advantages of naturalizing are that you will become a U.S. citizen, you will be able to vote, and you will obtain a United States passport. You also will never have to renew a permanent residence card again.

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.