On July 11, 2016, my colleagues and I submitted a petition to the U.S. Supreme Court to review the decision of the Sixth Circuit that upheld the Board of Immigration Appeals holding that my client’s conviction is an aggravated felony.
On September 16, 2016, the Solicitor General of the United States, the office representing the U.S. government against my client, submitted a brief in opposition to our petition.
As I explained in an earlier posting about our petition, we have several reasons for requesting review by the Supreme Court.
First, the U.S. Courts of Appeals are deeply divided over the question of whether a conviction like my client’s – consensual sex between a 21-year-old and a person just under age 18 – is an “aggravated felony” under U.S. immigration law.
Second, we all need to receive a clear definition of what “sexual abuse of a minor” is, and what it is not. Only by knowing what the immigration and deportation consequences of a conviction actually are may we all act accordingly – noncitizens, prosecutors, and attorneys representing noncitizens.
Third, we believe that the Sixth Circuit made an incorrect decision in our case. The U.S. Supreme Court, in a case called Taylor v. United States, requires a clear definition of what constitutes a particular crime. In our case, we need to know exactly what “sexual abuse of a minor” is, and what it is not. Under the federal law, the laws of 43 states, and the law of the District of Columbia, consensual sex between a person age 21 and person just under age 18 is not a crime at all. Under the Supreme Court’s holding in Taylor v. United States, the BIA should have provided a clear definition of what “sexual abuse of a minor” is, and it appears clear that my client’s conviction is not “sexual abuse of a minor.”
The Solicitor General’s brief in opposition claims that there exists no conflicts among the courts of appeal about the definition of “sexual abuse of a minor.” The government’s assertion appears to ignore the decisions of the 4th, 9th, and 10th Circuits, all of which have rejected the BIA’s case law regarding “sexual abuse of a minor.”
The Solicitor General also argues that the 9th Circuit could, in future cases, agree with the BIA’s decision in Matter of Esquivel-Quintana, the BIA’s decision in our case. The Solicitor General’s assertion appears extremely unlikely to become a reality. First, the Department of Homeland Security is not likely to prosecute cases within the 9th Circuit because of the 9th Circuit’s unanimous en banc decision in Estrada-Espinoza v. Mukasey, which held that a conviction for consensual sex between a person under age 18 and a person more than 3 years older – the exact same statute under which my client was convicted – is not an aggravated felony for purposes of immigration law.
In fact, the Department of Homeland Security did not prosecute my client until he left the 9th Circuit and moved to Michigan, in the 6th Circuit. Second, even if the Department of Homeland Security decided to prosecute such cases within the 9th Circuit, it is not likely that the 9th Circuit would follow the BIA’s holding in our case. To do so would require the 9th Circuit to have another en banc decision to overturn its own precedent. This is not likely, in light of the fact that the 9th Circuit has repeatedly followed and reaffirmed its own precedent in this area of the law.
The Solicitor General’s brief in opposition largely appears to ignore our argument that the BIA and the Sixth Circuit failed to comply with the requirements of Taylor v. United States. Apparently, the Solicitor General might be taking the position that Taylor does not apply to our case.
I will continue to post updates regarding this case as it develops in the weeks and months ahead.