Esquivel-Quintana v. Lynch: Amicus Brief

The National Association of Criminal Defense Lawyers (NACDL) has submitted an amicus brief to the Supreme Court in support of our petition.

For more details on this case, please visit:  Cert Petition.   Introduction.   Part 1.  Part 2.   Sixth Circuit Decision.

The NACDL brief asks the Supreme Court to hear our case for two main reasons – because the criminal rule of lenity is important and should be applied to this case, and because the Sixth Circuit’s and the BIA’s handling of the case results in serious problems for persons accused of certain crimes, criminal defense lawyers, and immigration lawyers.

First, NACDL explains that the list of crimes labeled “aggravated felonies” in the Immigration and Nationality Act makes up a statute that has both civil and criminal applications, and is thus referred to as a “hybrid” statute.  The NACDL argues, in agreement with Judge Jeffrey Sutton’s dissent in the Sixth Circuit decision in our case, that if the “hybrid” statute at issue in our case is “ambiguous,” meaning capable of two or more different valid interpretations, then the criminal rule of lenity applies.

The rule of lenity is similar to the baseball rule that the “tie goes to the batter” – if the runner gets to the base at exactly the same time as the fielder with the ball, then the runner is safe.  Similarly, if a statute with criminal applications is ambiguous, then the statute must be interpreted in a manner that is more favorable to the criminal defendant.

Second, NACDL argues that the BIA and the Sixth Circuit handled the categorical approach in an improper way that led to the result against my client.  The Supreme Court has stated, in a number of cases, that agencies such as the BIA and reviewing courts must use a “generic, contemporary definition” of a crime – a definition that is shared by a majority of states, as well as the federal government.

At issue in this case is the definition of “sexual abuse of a minor.”  A major problem with the way the BIA and the Sixth Circuit handled this case is that neither ever provided a “generic, contemporary defintion” of what “sexual abuse of a minor” actually IS.  As a result, my client was labeled as an “aggravated felon” and deported from the United States, because he engaged in conduct that is perfectly legal under federal law, as well as the laws of 43 states and the District of Columbia.  As NACDL explains, the BIA and the Sixth Circuit failed to apply the categorical approach correctly in this case.

Because we still don’t know exactly what “sexual abuse of a minor” is, because the BIA has not told us what it is, criminal defense attorneys and immigration lawyers are not able to properly advise their clients who have been charged with certain crimes, because no one knows whether a certain crime will end up being labeled as an “aggravated felony,” because, again, we don’t have a clear definition of what “sexual abuse of a minor” is.

NACDL urges the Supreme Court to hear this case, in order to clear up the disagreements among the circuit courts, to address the issue of the rule of lenity, and to provide a proper application of the categorical approach, so that we will all be able to know, once and for all, what the “aggravated felony” of “sexual abuse of a minor” is, and what it is not.

USCIS expands provisional unlawful presence waivers to LPRs

USCIS has announced that, beginning August 29, 2016, more persons will be eligible to seek an I-601A provisional waiver of unlawful presence.  Eligibility for the I-601A waiver will be extended to spouses and children of lawful permanent residents.  Eligibility will also extend to the spouses and children who accompany or follow to join the principal immigrants.

The full details of this expansion are available here.

Before this expansion, only spouses and children of U.S. citizens were eligible to apply for the I-601A provisional waiver of unlawful presence.  Beginning August 29, 2016, spouses and children of lawful permanent residents, or “green-card” holders, will also be eligible to apply for the I-601A waiver.

The I-601A provisional waiver provides a significant advantage over the regular I-601 waiver.  The main advantage is that the applicant may apply for the I-601A provisional waiver before leaving the United States to attend the interview for an immigrant visa at a U.S. Consulate or Embassy.  As a result, the amount of time that the applicant spends outside the United States is greatly reduced, from a matter of months or years in some cases, to a matter of weeks in the majority of cases.

Please remember that this expansion of the I-601A provisional waiver of unlawful presence will not take place until August 29, 2016.

Applications for waivers are complex.  I strongly suggest that you work closely with an experienced immigration attorney to handle your waiver application.  I have years of experience handling many waiver applications with success.  Please give me a call at the office at (734) 369-3131 or email me at for more information.

DAPA: Petition for Rehearing

The Solicitor General’s Office – the part of the U.S. Department of Justice that handles litigation at the Supreme Court – has filed a petition for rehearing of the DAPA case.  The request is for the Supreme Court to rehear the DAPA case after a ninth justice has been appointed to the Court.

The Solicitor General’s petition acknowledges that it is “exceedingly rare” for the Supreme Court to grant rehearing, but that the Court has done so in the past after being deadlocked as a result of a vacancy on the Court, as in this case.

Whether or not the Supreme Court grants rehearing, it is possible that this case could go before the Supreme Court in the future, because if the Supreme Court does not grant rehearing, then the case could continue in the federal district court in South Texas, and then again at the U.S. Court of Appeals for the Fifth Circuit, and then eventually at the Supreme Court.

DAPA: The Aftermath

After the U.S. Supreme Court issued its non-decision in the DAPA case, essentially stating that the lower court’s ruling remains in effect, the DAPA case continues as if the Supreme Court had never accepted the case in the first place.

The case is in the early stages.  It will now return to the U.S. District Court in south Texas, presumably to continue the process of determining whether President Obama’s plan to provide temporary relief from removal to parents of U.S. citizens, and to expand DACA (“DACA 2.0”), is valid or not.

One thing is clear.  The original DACA program remains valid.  You might be eligible to apply for Deferred Action for Childhood Arrivals (DACA) if:

  • You were born after June 15, 1981;
  • You came to the United States before reaching your 16th birthday;
  • You have continuously resided in the United States since June 15, 2007, up to the present time;
  • You were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  • You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  • You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

But the future of DAPA and DACA 2.0 is uncertain.  Because the Supreme Court did not decide the issue, the case is now back at the federal district court in south Texas.  The case will probably remain pending for many months, and will likely not be decided before the inauguration of the next President of the United States.  The next President could decide to continue to try to move forward with DAPA and DACA 2.0, or to terminate the program.

For now, one thing is clear, at least until the inauguration of the next President:  The original DACA program is still in effect.

Esquivel-Quintana v. Lynch: Cert Petition

I have been representing Mr. Esquivel-Quintana in his immigration case since 2013.  In previous posts, I have described details about the case.  You may find them here:   Introduction.   Part 1.   Part 2.   Sixth Circuit Decision.

In a nutshell, the Board of Immigration Appeals concluded that Mr. Esquivel-Quintana, who came to the United States as a lawful permanent resident at age 12, is an “aggravated felon” because he was convicted in California of engaging in consensual sex with his girlfriend when he was 21 and she was under 18.  The U.S. government deported Mr. Esquivel-Quintana after the BIA’s decision.  The U.S. Court of Appeals, in a divided 2-1 decision, upheld the Board’s decision.

Today, July 11, 2016, in collaboration with Jeffrey Fisher, Professor of Law at Stanford Law School and Co-Director of Stanford’s Supreme Court Litigation Clinic, and other professors at Stanford, we are submitting a petition to the U.S. Supreme Court.  In our petition, which you may view here, we are asking the Supreme Court to review Sixth Circuit’s decision.

With very few exceptions, the U.S. Supreme Court has the discretion to grant or deny any petition for review.  The Supreme Court declines to review of the vast majority of petitions presented.  Despite these odds, we hope that the Supreme Court will decide to hear our case.

In asking the Supreme Court to review the Sixth Circuit’s decision, we are focusing on the fact that the Board of Immigration Appeals in this case has concluded that conduct that is legal under federal law, in 43 states and in the District of Columbia is an aggravated felony for purposes of immigration law.  Moreover, six of the seven states that criminalize this conduct treat it simply as technically unlawful sex; those states have separate crimes on the books that they label as “sexual abuse” of a minor, for conduct that is more serious than simply consensual sex between a person age 21 and a person under age 18.

We have several reasons for requesting review by the Supreme Court.  First, the U.S. Courts of Appeals have deep disagreements regarding the question of whether the conviction at issue in this case – consensual sex between a 21-year-old and a person just under age 18 – is an “aggravated felony” under U.S. immigration law.  Four appeals courts agree with the BIA that such conduct is an aggravated felony:  the Second, Third, Sixth, and Seventh Circuits.  Three appeals courts have determined that such conduct is not an aggravated felony:  the Fourth, Ninth, and Tenth Circuits.

Second, this case presents an issue that is extremely important for many noncitizens, as well as criminal prosecutors and criminal defense attorneys throughout the nation.  Immigrants, prosecutors, and defense attorneys all need to know what the law is, in order to act accordingly.  Mr. Esquivel-Quintana was convicted in California, which is in the Ninth Circuit, which had decided already in previous cases that the conviction is not an aggravated felony.  Mr. Esquivel-Quintana then moved to Michigan, where he was arrested and detained by U.S. immigration officials and eventually deported as an “aggravated felon” because Michigan is in the Sixth Circuit, which decided (in Mr. Esquivel-Quintana’s case) that his California conduct is an “aggravated felony.”  The Sixth Circuit reached this conclusion despite the fact that in Michigan, consensual sex between a person age 21 and a person just under 18 is perfectly legal.  So, persons convicted of this crime in a jurisdiction that has ruled that it is not an aggravated felony are safe, but by crossing state lines into a jurisdiction in which a court of appeals has determined that such conduct is an aggravated felony, are subject to being labeled as “aggravated felons” and deported, as Mr. Esquivel-Quintana was.  This situation makes it extremely difficult for prosecutors and attorneys to inform noncitizens of how to plead to criminal charges, and even where to travel within the United States.

Third, we assert that the Sixth Circuit’s decision in this case was incorrect.  In our view, the BIA and the Sixth Circuit ignored the Supreme Court’s requirements for clearly defining what the meaning of “sexual abuse of a minor” is.  The fact that federal law, 43 states, and the District of Columbia all deem consensual sex between a 21-year-old and a person just under age 18 to be perfectly legal should have led the BIA and the Sixth Circuit to conclude that such conduct is not “sexual abuse of a minor” under federal immigration law.

As noted above, the Supreme Court declines the review the vast majority of cases presented.  We hope that the Supreme Court will decide that our case is one of those few cases that the Supreme Court decides to review.

We will keep you updated on the progress of our petition.  We expect that the Supreme Court will decide whether or not to review our case either by the end of 2016 or by early 2017.

Waivers for Unlawful Presence

If you entered the United States without permission, you might be eligible to apply for a waiver of unlawful presence.  Depending on the circumstances of your situation, you might be able to obtain the waiver, and then obtain permanent resident (green card) status.  Best of all, you might be able to remain in the United States while your application is pending.  If you are approved for the waiver, you would travel to a U.S. consulate outside the United States for an immigrant visa, and then you would return to the United States with the visa and become a permanent resident.  Your time outside the United States, in most cases, is approximately 2 weeks.

In order to be eligible to apply for this type of waiver, you must have either a spouse or parent who is a U.S. citizen.  You must also meet certain other requirements in order to be eligible.  For example, certain criminal convictions might make you ineligible to apply for this type of waiver.

In order to be granted the waiver, you would need to convince U.S. immigration officials that the denial of the waiver would result in an “extreme hardship” to your U.S. citizen spouse or parent.  The question of what qualifies as “extreme hardship” is complicated.  For more information about extreme hardship, please see my previous postings on the subject:

What is “extreme hardship”?  Part 1

What is “extreme hardship”?  Part 2

The process of obtaining a waiver of unlawful presence is complex.  In order to avoid problems and to have the best chance of success, you should work with an experienced immigration attorney.  I have handled many immigration waiver cases and I have a strong record of success.  I would be glad to speak with you about your case.  Please contact my office for details.  Thank you.


Please Consider Naturalization

If you are a permanent resident, you may be eligible to apply for naturalization – the process of becoming a U.S. citizen.  There are many compelling reasons to consider applying for naturalization.

Here are a few things that only U.S. citizens are eligible to do:

  • file petitions for permanent resident (green card) status for your mother, father, brother, sister, or married son or daughter.
  • help your spouse, parents, or unmarried children under age 21 to become permanent residents more quickly than permanent residents are able to.
  • vote in national, state, and local elections.
  • be a candidate for elected positions.
  • obtain certain jobs that require applicants to be U.S. citizens.

Another important benefit of U.S. citizenship is something that many of us don’t consider very much, but that could end up causing a very big problem:

  • U.S. citizens cannot be deported from the United States.

Suppose that you are involved in an incident that results in a criminal conviction.  As we all know, sometimes persons are accused of crimes that they did not commit.  At other times, we might suddenly be placed in a stressful situation, and we make a poor choice.  We might also happen to commit a crime without being aware that what we have done is illegal.  The truth is, even though we might never consider doing anything illegal, any of us could end up with a criminal conviction.  A permanent resident who has been accused of a crime or who has a criminal conviction must immediately consult with an experienced immigration attorney to determine if there are any possible deportation consequences of a criminal conviction.  On the other hand, a person who is already a U.S. citizen at the time the incident occurs will not face any deportation consequences.

Some of the eligibility requirements of naturalization are:

  • be a permanent resident for at least 4 years and 9 months (or 2 years and 9 months if you have been married to, and living with, a U.S. citizen for the entire 2 years and 9 months).
  • submit federal tax returns every year, if you are required to do so under U.S. tax laws.
  • have been physically present in the United States for at least half of the most recent 5 years (3 years if married to, and living with, a U.S. citizen for the entire 3 years).

These are only a few of the eligibility requirements.  If you are considering naturalization, please contact our office.  We would be glad to work with you.


Supreme Court Will Hear DAPA Arguments on April 18

Today the Supreme Court announced that it will hear oral arguments in United States v. Texas on Monday, April 18, 2016.  The vacant seat left by the death of Justice Scalia will not be filled by that date.  As a result, the remaining 8 justices will consider the case.

The DAPA case is the only case scheduled for oral argument on April 18.  The Court might decide to extend the length of arguments for each side, beyond the typical 30 minutes.

It is expected that the Court will issue a decision in the case by the end of June 2016.

Notably, the Court postponed several other cases until the Court’s next term that begins October 2016.  So, it appears that the Court cosiders DAPA important enough to consider during this term, even with the vacancy on the Court.

What will happen with DAPA?

After the unexpected death of Justice Scalia, leaving the Supreme Court with 8 justices, at least for now, there are many things left up in the air.  The Supreme Court is in the middle of a term, President Obama will nominate a new justice, and the Senate will either hold nomination hearings and take a vote on the nominee, or will simply refuse to hold a vote.  Although many GOP Senators have been stating they will not hold a vote, at least one, Senator Charles Grassley, chair of the Senate Judiciary Committee, indicated he hasn’t made up his mind yet about whether to hold hearings on the nominee.

If the Senate confirms Mr. Obama’s nomination before the Supreme Court takes up the DAPA case – United States v. Texas, then it appears that DAPA would have a good chance of being able to move forward, because it would be likely that a majority of justices would conclude that DAPA is in accord with the Constitution and laws.

Realistically, it is not likely at all that the new justice would be on the Court to hear the DAPA case this term, which ends in June.

The justices could decide to postpone hearing the case until the next term, which begins in October 2016, and which might end up being too late for implementation of the program before President Obama leaves office on January 20, 2017.

If the 8 sitting justices decide to hear the case this term, then we could guess that there is a good possibility that Justices Ginsburg, Breyer, Sotomayor, and Kagan would likely rule in favor of the legality of the DAPA program.  And, there is probably a good possibility that Justices Thomas and Alito would likely rule against DAPA.  That leaves us with Chief Justice Roberts and Justice Kennedy.  Either or both of those justices could joint the other justices in favor of DAPA, perhaps on the legal argument that the states lack standing to bring the DAPA lawsuit in the first place.  If either Chief Justice Roberts or Justice Kennedy join the other 4, a majority would be in place to potentially allow the DAPA program to move forward.

Justice Scalia’s Death and the DAPA Case

The death of Supreme Court Justice Antonin Scalia adds uncertainty to the pending case before the Court regarding the legality of President Obama’s DAPA program.

The case, United States v. Texas, is scheduled on the Supreme Court’s current docket.  Of course, it’s uncertain how each individual justice will vote in the case, but it’s fair to guess that Justice Scalia might have concluded that the DAPA program is unconstitutional or otherwise in violation of the law.

President Obama has indicated that he plans to nominate a person to fill the vacancy on the Supreme Court.  So far, Republican Senate leaders have indicated that they plan to block or otherwise thwart President Obama’s efforts to fill the vacancy before he leaves office on January 20, 2017.

If the DAPA case is heard by the current 8 justices on the Supreme Court, there is the possibility that the justices could split 4-4 on the legality of the program.  A 4-4 split would leave the lower court’s ruling intact.  In that scenario, DAPA would not be able to be implemented.

It’s possible, although unlikely, that the Senate would confirm President Obama’s nominee to the Court by the time the DAPA case is argued.

Another possibility is that the Court would decide to postpone the hearing of the DAPA case until the next term, which begins in October 2016.  In that scenario, it is likely that a decision would not be issued in the case in time for President Obama to begin implementation of the DAPA program before he leaves office.