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.
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.