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:
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.