Immigration Cases at the Supreme Court

The U.S. Supreme Court has eight pending immigration cases, and we are likely to see decisions on most or all of them by June 2020, when the Supreme Court ends its current session.  Here is a run-down of the eight cases:

  1. Perhaps the most anticipated case involves the future of DACA. The Supreme  Court will decide whether the Trump Administration’s decision to end DACA was legal.  Based on the oral argument, held in November 2019, the Court is likely to be sharply divided on the question.  If the Supreme Court decides that President Trump legally ended DACA, the next question will be exactly how the Administration will end the program.  Because the future of DACA is very uncertain at this time, we suggest that all persons who currently have DACA to consider applying to renew DACA as soon as possible, before the Supreme Court issues a decision.  Our reason for making this suggestion is that, if the Court rules that President Trump legally ended DACA, then there will no longer be any opportunity to renew DACA.
  2. In Kansas v. Garcia, the Court will decide whether states may prosecute undocumented persons who use stolen data such as Social Security numbers to obtain work, or whether such prosecutions are only permitted by federal officials. The federal I-9 form, which job applicants must complete in order to obtain employment, states that the information put on the form may only be used for federal law purposes.
  3. Another case before the Supreme Court focuses on whether certain noncitizens may appeal certain decisions to federal courts of appeals. Congress has enacted a law that specifically allows federal courts to review “questions of law.”  But federal appeals courts generally do not have the power to review “questions of fact.”  In cases before the Supreme Court this term, two noncitizens filed late motions to reopen their deportation cases.  The Board of Immigration Appeals denied their motions.  The question that the Supreme Court must answer is whether federal appeals courts may review the decisions of the Board of Immigration Appeals.
  4. In Nasrallah v. Barr, the Supreme Court will decide whether or not federal courts have authority to review certain decisions. As we just noted, generally federal appeals courts do not have the power to review “questions of fact.”  But the United States has agreed to follow a document called the Convention Against Torture, and the federal government has laws that state that federal government officials may not send any persons to any countries in which they are likely to be tortured.  In this case, the Supreme Court will decide whether federal appeals courts have the authority to review factual findings that resulted in denying requests for protection under the Convention Against Torture.
  5. The Constitution contains a right to file a habeas corpus petition, which is a challenge to being detained by any government authority. In DHS v. Thuraissigiam, a noncitizen entered the United States and asked for asylum.  A federal immigration official concluded that he did not have a valid asylum claim, and ordered his deportation.  He filed a habeas corpus petition in federal court, challenging his detention by federal officials as unlawful.  Congress passed a law restricting the power of federal courts to hear habeas corpus cases in certain immigration matters, such as this one.  The Supreme Court will decide whether Congress’s law is valid, or whether it violates the Constitution’s right to file a habeas corpus petition.
  6. Congress passed a law making it a crime to encourage illegal immigration for financial gain. A woman in California was convicted of helping noncitizens apply for immigration benefits that they were not entitled to receive.  A federal appeals court concluded that Congress’s law violates the First Amendment because it applies too broadly, potentially making it a crime for a lawyer to advise a client to remain in the United States while her case is pending in Immigration Court.  The Supreme Court will decide whether Congress’s law violates the Constitution.
  7. When a noncitizen applies for certain immigration benefits in Immigration Court, there is a question of whether certain criminal convictions disqualify the person from seeking the benefit. Some minor offenses, such as driving without a license, generally do not disqualify a person, while more serious offenses do.  Most criminal convictions occur in state courts, while lists of disqualifying crimes are based on federal law, listing federal offenses.  Sometimes, it’s unclear whether a conviction under a state law fits within the federal law definition.  In this case, the Supreme Court will decide who bears the burden of this question:  Is it the noncitizen’s responsibility to show that the state conviction is not a disqualifying federal crime?  Or is it the federal government’s job to show that the state conviction is a disqualifying federal crime?
  8. Finally, the Supreme Court will decide a case that focuses on a legal distinction between being “deportable” and being “inadmissible.” A permanent resident (green-card holder) in the United States was convicted of a crime in the United States.  In Immigration Court, he was in danger of losing his permanent resident status as a result of the conviction, and so he applied for a certain benefit that, if approved, would allow him to keep his green-card status.  Immigration law indicates that his criminal conviction makes him “inadmissible,” and so he’s not eligible to apply for the benefit.  He argues, on the other hand, that he’s not asking to be admitted to the United States – he’s already been admitted – and so he should be able to request the benefit.  The Supreme Court will decide whether a permanent resident can be considered “inadmissible” when he is not seeking admission to the United States.

Decisions are expected by the end of June 2020.

Federal Court Actions for Immigration Cases

There are a number of different ways in which you might need to have a federal court action in order to resolve your immigration matter.

Three Branches of Government

Many of us are probably familiar with the three branches of the federal government, as described in the Constitution.  The three branches are the Legislative (Congress), Executive (President), and Judicial (federal courts).

If you have a case in Immigration Court, you might guess that the Immigration Court is part of the Judicial branch.  After all, the judicial branch is about courts, right?

But actually, the Immigration Court system is entirely under the Executive Branch of the federal government.  If you want to appeal a decision from the Immigration Court, the appeal goes to the Board of Immigration Appeals (BIA), based in Falls Church, Virginia.  The BIA, like the Immigration Courts, is part of the Executive Branch of the federal government.

Getting from the Executive Branch to the Judicial Branch

If you wish to appeal a decision of the BIA, the appeal is called a “petition for review,” and that petition is filed with a U.S. Court of Appeals for the district in which your Immigration Court hearing took place.  For example, if your Immigration Court hearing was in the Immigration Court in Detroit, Michigan, then your petition for review of the BIA’s decision would go to the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio.  The Sixth Circuit has jurisdiction over cases that arise in the states of Michigan, Ohio, Kentucky, and Tennessee.  The Sixth Circuit, and all of the federal circuit courts of appeals, are in the Judicial Branch of the federal government.

So, as you can see, if your case is in Immigration Court, in order to get your case heard by judges in the Judicial Branch, you first need to go through two levels of process in the Executive Branch.

By the way, if you wish to appeal the decision of a U.S. circuit court of appeals, you may file a petition with the U.S. Supreme Court.  It’s quite difficult to convince the U.S. Supreme Court to agree to hear a case.  Our office was fortunate to be involved in the case of Esquivel-Quintana v. Sessions, a case in which the U.S. Supreme Court agreed with our position and ruled in our favor, by a vote of 8-0.

Other Types of Federal Court Actions

In some situations, the procedural process is different.  Perhaps you are being held in jail by U.S. immigration officials, and you believe that federal officials do not have the legal authority to keep you in jail.  You may file a petition in a U.S. district court to seek to be released from jail.  This type of petition is called a “writ of habeas corpus.”  You file this petition in a federal district court, which is part of the Judicial Branch of the federal government.

Perhaps you have filed an application with U.S. Citizenship and Immigration Services (USCIS) for permanent residence, or for naturalization.  And, perhaps USCIS is taking a really long time to make a decision about your case.  You may file a petition in a U.S. district court (part of the Judicial Branch of the federal government) to ask the court to order USCIS to make a decision on your case.  This type of petition is called a “writ of mandamus.”  If the federal court agrees with you, then the court will order USCIS to make a decision.  Please note that the federal court will not dictate what the decision of USCIS will be.  The federal court would simply order USCIS to issue a decision.  That decision could be an approval of your application, but it could also be a denial.

Obtain Good Legal Assistance

Whatever is happening with your own immigration matter, it’s probably the most important thing that is going on in your life at this time.  It is crucially important that you find an immigration lawyer whom you trust and who has a thorough knowledge of the legal issues and the ability to represent you in a way that maximizes your chance of success.

“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.

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.

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.

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.

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.