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.