Esquivel-Quintana v. Lynch: 6th Circuit Decision

On January 15, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision in a case I am handling, Esquivel-Quintana v. Lynch.

For previous postings about this case, please take a look at these:

Introduction.   Part 1.   Part 2.

Judge Danny Boggs wrote the majority opinion, joined by Judge Deborah L. Cook.  Judge Jeffrey Sutton wrote a separate opinion, concurring in part and dissenting in part.

The majority decision held that the Board of Immigration Appeals (BIA) was entitled to Chevron deference, and that their interpretation of the term “sexual abuse of a minor,” that included a conviction under California Penal Code 261.5(c), is permissible.

The majority considered our arguments regarding Taylor v. United States, but concluded that Taylor does not apply to our case.  The majority concluded that Taylor involved an application of the Armed Career Criminal Act, while our case involved the Immigration and Nationality Act.  The majority did not explain in much detail why that distinction makes a difference.

The majority also considered our argument about the Rule of Lenity, which states that an ambiguous criminal statute should be resolved in the defendant’s favor.  Interestingly, the majority stated that “there are compelling reasons to apply the rule of lenity,” but ultimately concluded that “the Supreme Court has not made it the law.”  The majority stated that, while the Supreme Court has begun to distance itself from an earlier case indicating that Chevron trumps lenity, the majority did not believe that the Supreme Court indicated clearly that lower courts should apply the rule of lenity.  The majority concluded that “[a]s an ‘inferior’ court, our job is to adhere faithfully to the Supreme Court’s precedents.”

In his separate opinion, Judge Sutton stated that he disagreed with the majority about the application of the Rule of Lenity.  According to Judge Sutton, the majority should have applied the Rule of Lenity in this case, which would have led to a conclusion that, because the term “sexual abuse of a minor” is ambiguous, the ambiguity must be resolved in favor of the defendant, and thus Mr. Esquivel-Quintana’s conviction under California Penal Code 261.5(c) would not be “sexual abuse of a minor,” which would mean that he would not be an aggravated felon for purposes of immigration law, and would have the right to return to the United States again as a lawful permanent resident.

According to Judge Sutton, because the term “sexual abuse of a minor” has both civil and criminal applications in federal law, Chevron deference to the BIA should not apply:  “Chevron has no role to play in construing hybrid statutes.”  Judge Sutton stated that there may be some cases in which which neither Chevron nor the Rule of Lenity apply.  But in Judge Sutton’s view, in this case, Chevron does not apply, and the Rule of Lenity does apply.

Esquivel-Quintana v. Lynch, Part 2

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

I also recently posted Part 1 of a report on the argument, which you can read here.

In Part 2 here, I am discussing why the decision of the Board of Immigration Appeals (BIA) in our case is not entitled to deference.

In general, decisions of agencies such as the BIA are entitled to deference from federal appeals courts, if the term being interpreted is “ambiguous.”  The deference is referred to as Chevron deference, from a Supreme Court case called Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

We argued that the BIA is not entitled to Chevron deference for the following reasons:

First, we argued that the definition of “sexual abuse of a minor,” and in fact all of the terms regarding “aggravated felonies” at 8 USC 1101(a)(43), are used both by the BIA and by federal courts.  For example, the term “sexual abuse of a minor” is used by the BIA in cases such as ours, but it is also used by federal courts in cases involving sentencing of persons for illegal re-entry to the United States.  In the illegal re-entry cases, the federal courts do not owe the BIA any deference at all, because the BIA is not involved in any way in the criminal sentencing of a person for having illegally re-entered the United States.  The U.S. Supreme Court, in a case called Leocal v. Ashcroft, 543 U.S. 1 (2004), has stated that a statute with both criminal and noncriminal applications must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context.”

The problem with granting deference to the BIA’s decision is that the BIA’s decision would then bind federal judges in criminal applications of aggravated felony terms such as “sexual abuse of a minor” to apply the BIA’s definition, when in fact the BIA is due no deference in criminal sentencing cases.

Second, we argued that the BIA, in fact, has never provided a definition of “sexual abuse of a minor,” and because it has not provided a definition, the BIA’s decision is not due any deference.

Third, we argued that the term “sexual abuse of a minor” is not ambiguous.  The term is defined by a federal statute at 18 USC 2243.

When we receive a decision from the U.S. Court of Appeals for the Sixth Circuit, we will provide an analysis of the decision.

 

Esquivel-Quintana v. Lynch, Part 1

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

My client was convicted under California Penal Code 261.5(c), which states that it is unlawful for a person to have consensual sex with a person under age 18, if there is an age difference of at least 3 years and 1 day.  This conduct – consensual sex with a person under age 18, with an age difference of 3 years and 1 day – is perfectly legal in 43 states and the District of Columbia.

The Board of Immigration Appeals (BIA) concluded that a conviction under 261.5(c) is “sexual abuse of a minor” under 8 USC 1101(a)(43)(A) of the Immigration and Nationality Act, which is an “aggravated felony.”  My client’s permanent resident (green card) status was removed and he was deported from the United States.  You may read the BIA’s decision here:  Matter of Esquivel-Quintana,  26 I&N Dec. 469 (BIA 2015).

At the Sixth Circuit, I made two main arguments:  (1) The BIA’s decision does not comply with the requirements of the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), and (2) the BIA’s decision is not entitled to deference.

I will address (2) in a later posting.  For now, I will address (1).  In Taylor v. United States, the Supreme Court stated that courts and administrative bodies such as the BIA must provide a generic, contemporary definition of terms such as “sexual abuse of a minor.”  The Supreme Court also stated that the definition must mean what it means in the criminal codes of most States.  We argue that the BIA failed to provide a definition of “sexual abuse of a minor.”  We argue that a conviction under California Penal Code 261.5(c) is not “sexual abuse of a minor” because a conviction under that term can involve conduct that is perfectly legal in 43 states and the District of Columbia, and Taylor v. United States requires a definition for each term that fits with the criminal codes of most states.

You may hear the argument (37 minutes) by clicking this link.

 

Case at the U.S. Court of Appeals for the Sixth Circuit

On October 14, 2015, I will be in Cincinnati, Ohio to present an argument in a case before the U.S. Court of Appeals for the Sixth Circuit.  The case involves issues related to a criminal conviction, and whether the conviction is an “aggravated felony” under the Immigration and Nationality Act.  My client in this case was a Permanent Resident of the United States since he was a young teenager.  While living in California, he and his girlfriend had sex.  My client ended up being convicted of having had sex with his girlfriend when she was younger than 18 years old, at which time he was more than 3 years older than she was.  My client and his girlfriend engaged in sex that was purely consensual.  There was no force, and no threat of force, involved.  My client was convicted under a statute in California that requires simply that the younger person be younger than age 18, that the other person be more than 3 years older, and that they had sex.  This is a statute that is sometimes referred to as “statutory rape,” although there was no “rape” involved at all.

In California, the age of consent for purposes of “statutory rape” is 18 years old.  Only about 11 states set the age of consent at age 18.  California joins Florida, Virginia, and 8 other states at setting the age of consent at 18.  Some of these states additionally require that, in order to be convicted, the older person is at least a certain age, and/or that the age difference be at least a certain number of years.  For example, Florida requires that the older person be at least age 24.  If not, the person would not be convicted of the offense.

As for the other 40 states and the District of Columbia, the age of consent for the younger person is either 16 or 17.

As a result, my client’s conduct would not even be a crime in at least 43 states and the District of Columbia.  Yet a U.S. immigration judge, and the Board of Immigration Appeals, ruled that his conviction is an aggravated felony for purposes of immigration law.  My client has been removed from the United States.

At the U.S. Court of Apeals for the Sixth Circuit, I am arguing that my client’s conduct is not an aggravated felony.

Judge orders DOJ to release emails

“Trust everybody, but cut the cards.”  Thus began the opinion of Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, ordering the U.S. Department of Justice to release some of the contents of four emails sent between federal officials and their lawyers.  The judge ordered the information to be released by February 13, 2012.  The judge issued his opinion in response to a lawsuit filed by several immigrants’ rights groups.

In a case argued before the Supreme Court in 2009, Nken v. Holder, 129 S. Ct. 1749 (2009), attorneys representing the U.S. government stated to the Supreme Court that aliens deported from the United States while their appeals are still pending, and who later win their court cases, will be allowed to return to the United States and to get back the immigration status that they had prior to their deportation.

The plaintiffs in the New York case had filed a request under the Freedom of Information Act, seeking documents related to the U.S. government’s procedures for bring back deported aliens who later won their court cases on appeal.  In response, the U.S. government issued a series of emails, but most of the information was redacted, or blacked out.

Government lawyers made several arguments in defense of the decision not to release the information contained in the emails.  Judge Rakoff rejected all of them, and ordered the government to release certain information from each of the four emails.

Supreme Court will hear arguments April 25 in Arizona immigration case

The U.S. Supreme Court will hear oral arguments on April 25 in Arizona v. United States, the controversial case surrounding Arizona’s S.B. 1070, a state law that requires, among other things, the following actions in Arizona:

  • Police who make any stop or arrest, and who have a “reasonable suspicion” that a person is in the United States without permission, must determine whether the person has a right to be in the United States, and if police arrest a person, they may not release them until the person’s legal status has been verified by the federal government.
  • Any person in Arizona who is not a United States Citizen must obtain and carry documents proving legal status.  Any such person who does not do so is guilty of a crime.
  • Any undocumented person who applies for a job or works in Arizona is guilty of a crime.
  • Police are authorized to arrest without a warrant any person whom the officer believes has committed a crime that would subject the person to deportation, even if the crime was committed outside Arizona.

The United States Court of Appeals for the Ninth Circuit has blocked these 4 provisions.  The State of Arizona appealed the Ninth Circuit’s decision, and the Supreme Court has agreed to hear the case.

Supreme Court Justice Elena Kagan will not be taking part in deciding the case.  That means that only 8 Justices will decide the case.  In the event of a 4-4 split, the Ninth Circuit’s decision will stand.

The case sets up a showdown of sorts between Arizona Governor Jan Brewer, who contends that S.B. 1070 is simply an attempt to allow Arizona law enforcement to cooperate with federal immigration officials, and the Obama Administration, which contends that Arizona has attempted to write its own immigration laws – something that only the federal government has the power to do.