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.

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