On February 27, 2017, the U.S. Supreme Court heard oral arguments in Esquivel-Quintana v. Sessions.
I have been representing the Petitioner, Juan Esquivel Quintana, since 2013.
For an introduction to the case, please see our dedicated case page.
To hear the audio recording of the oral argument, please click here.
You may view the transcript of the argument here.
During Jeffrey Fisher’s argument, the Justices were grappling with the question of Chevron deference, and the circumstances in which federal agencies, such as the Board of Immigration Appeals in our case, should be granted deference in their decisionmaking.
Perhaps the Justices were mindful of the distinct possibility that Judge Neil Gorsuch will be confirmed to fill the vacancy on the Supreme Court left after the passing of Justice Antonin Scalia. Judge Gorsuch, currently a judge on the U.S. Court of Appeals for the Tenth Circuit, recently authored an opinion critical of the use of Chevron deference.
During the argument, it appeared that some of the justices, notably Justices Breyer and Kagan, were looking for a “third way” between granting Chevron deference, on the one hand, and completely withholding any deference, on the other. Some of the justices appeared to express interest in determining the extent to which deference should be granted to a federal agency, based on the issue in question and how it relates to the expertise of the agency.
For example, during the Solicitor General’s argument, Justice Kennedy indicated that deference may be appropriate when the issue in question is within the expertise of the agency, but not necessarily when the issue in question is outside of the agency’s expertise. Justice Kennedy asked, “Why does the INS have any expertise in determining the meaning of a criminal statute?” Later, as a follow-up question, Justice Kennedy asked, “Why is INS in any better position to make that determination than the American Bar Association or the Forest Service?”
The Justices appeared skeptical about the application of the criminal rule of lenity in our case, and expressed concerns about the interaction of the criminal rule of lenity with Chevron deference.
Jeffrey Fisher reminded the Justices that the Solicitor General abandoned the reasoning that the Board of Immigration Appeals had set forth in its decision, and instead proposed a significantly more drastic and sweeping definition of “sexual abuse of a minor,” one based on definitions in Black’s Law Dictionary. As Mr. Fisher pointed out, when reviewing the defintions of Black’s Law Dictionary, you reach the conclusion that the age of consent to sexual intercourse is 16.
During the Solicitor General’s argument, Justice Kagan pressed Allon Kedem on the reasoning behind the Solicitor General’s contention that “sexual abuse of a minor” exists in all criminal convictions of a sexual nature that involve a person under age 18, despite the fact that many state criminal statutes, for example, set the age of consent at either 16 or 17. Justice Kagan elicited from Mr. Kedem that the sole basis of the Solicitor General’s reasoning is some definitions from Black’s Law Dictionary, and some very sparse legislative history from the time when Congress added the phrase “sexual abuse of a minor” to the list of aggravated felonies in the immigration statute in 1996.
Mr. Kedem appeared to run into trouble with the Justices even on the Solicitor General’s use of the dictionary definition. Justice Kagan noted that the dictionary definition involves “illegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance.” Justice Alito asked whether a stranger engages in sexual conduct (other than rape) with a person under age 18, whether that conduct would be included in the dictionary definition proposed by the Solicitor Geheral.
Justice Breyer followed up and asked Mr. Kedem whether such conduct would be included in the dictionary defintion. Justice Breyer stated, “If somebody meets someone at a bar and doesn’t even know them and –and gets the person drunk and they go home and they have sex, all right, that would sound much more like sexual abuse of a minor than a –a senior in college dating and living with a –a sophomore.” Yet, as Justice Breyer then stated, “there’s no acquaintance” in that example, and so it appears that that conduct would not be covered by the Solicitor General’s proposed definition. Mr. Kedem did not answer the question.
The Supreme Court could decide to avoid the Chevron question in our case, as it has in prior cases in which it has considered the meaning of a term in the list of aggravated felonies in the immigration statute. Or, the Court could issue a ruling in which it delineates the extent to which the Board of Immigration Appeals is to be granted deference in this case.
The Court could also address the question of lenity, although it appears that the Court might not reach that issue in its decision.
The Court will issue a decision within the next few months, by June 30 or earlier.
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.
Last week, a number of organizations joined forces to file three separate amicus briefs in support of our case – Esquivel-Quintana v. Lynch – before the Supreme Court. Amicus briefs, or “friend of the court” briefs, are legal arguments submitted to the court that focus on certain aspects of the case that are particularly important to the persons or organizations submitting the briefs.
After reading these three amicus briefs, my client and I are very grateful to have such great “friends of the court.”
For more information about the case, please visit our dedicated page.
The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief, detailing the reasons why the Supreme Court should consider ruling in our favor on the basis of the Criminal Rule of Lenity.
(I’d like to thank NACDL for presenting an excellent amicus brief in support of our case. But I’d also like to thank them for being the only organization to file an earlier amicus brief in support of our case, and at an even more crucial time – when we were asking the Supreme Court to agree to hear our case.)
When we presented Juan’s case before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Jeffrey Sutton was particularly interested in the Criminal Rule of Lenity. It is worth noting that Judge Sutton had clerked for Supreme Court Justice Antonin Scalia, a strong supporter of the Criminal Rule of Lenity. We lost at the Sixth Circuit by a 2-1 vote. Judge Sutton, in dissent, wrote a powerful argument that we should have won the case based on the Criminal Rule of Lenity. The Supreme Court has a number of different ways in which it could decide our case, and the Criminal Rule of Lenity is one important way.
Another option is for the Court to conclude that, when Congress amended the immigration law to include the phrase “sexual abuse of a minor” in the list of aggravated felonies, Congress intended that phrase to be defined by a federal law titled “sexual abuse of a minor or ward.” That is the main argument in another powerful amicus brief, submitted by a coalition of three organizations: The Immigrant Defense Project (IDP), the Immigrant Legal Resource Center (ILRC), and the National Immigration Project of the National Lawyers Guild (NIPNLG). (An extra shout-out to NIPNLG, whose brilliant attorneys also provided a wonderful amicus brief in our case at the Sixth Circuit.) This amicus brief details the process in which the immigration law and the criminal law were amended by Congress, and makes an elegant argument that, based partly on the timing of the amendments of the immigration and the criminal laws, Congress intended that the phrase “sexual abuse of a minor” in the immigration law to be defined by the statute at 18 U.S.C. Section 2243.
Finally, the National Immigrant Justice Center (NIJC) and the American Immigration Lawyers Association (AILA) argue in their amicus brief that another canon of statutory construction – the “rule of immigration lenity” – should be employed to construe immigration law in favor of noncitizens where, as here, the consequence of an “aggravated felony,” banishment from the United States for life, is overly harsh and a grossly unfair punishment for a conviction for conduct that is perfectly legal under federal law and in 43 states and the District of Columbia. (And another “thank you” to NIJC for providing an excellent amicus brief earlier at the Sixth Circuit.)
The amicus brief filed by NIJC and AILA also argue that immigration judges should be allowed the discretion to consider noncitizen’s applications for relief from removal, such as asylum, cancellation of removal, and other forms of relief in Immigration Court. These forms of relief are unavailable to persons whose convictions are labeled as “aggravated felonies.” The amicus brief ends with some compelling examples of other noncitizens whose low-level criminal convictions place them in jeopardy of being banished forever as “aggravated felons.”
We are deeply grateful to the organizations who dedicated their precious resources of time, experience, great effort, and superior intellect to prepare and present amicus briefs in support of our case. We are very fortunate to have such great “friends of the court.” Thank you.
We look forward to the oral argument at the Supreme Court on February 27, 2017.
For more information about the case, please visit our dedicated page. Thank you.
The Supreme Court has scheduled oral argument in our case for Monday, February 27, 2017.
Jeffrey Fisher, of the Stanford Supreme Court Litigation Clinic, will be arguing the case on behalf of our client, Juan Esquivel-Quintana.
Today the Supreme Court granted our petition and agreed to hear the case of Esquivel-Quintana v. Lynch. We are so elated that the Court has decided to hear this case! We don’t have specific dates set yet, but the argument before the Supreme Court will probably be around late February 2017. The Supreme Court will then likely issue a decision some time in the Spring.
This week, we plan to file our reply to the Government’s opposition to our petition in the Supreme Court in Esquivel-Quintana v. Lynch. For now, I would like to focus on the importance of definitions in the law.
Our client was convicted of a crime under a statute in California – California Penal Code 261.5(c) – that makes it a crime to have consensual sex between a person under age 18 and another person more than 3 years older. That conduct is perfectly legal under federal law – see 18 U.S. Code Section 2243 – and the laws of 43 states and the District of Columbia. California is one of only 7 states that makes such conduct a crime.
Here is where the importance of definitions comes in. In 1990, the U.S. Supreme Court, in a case called Taylor v. United States, declared that in order to increase a prison sentence under a federal statute for persons who re-offend, the reviewing court must work with a definition of the crime at issue that is clear and uniform throughout the country.
In Taylor, the crime at issue was burglary. The problem in that case was that each of the 50 states had their own separate definitions of what “burglary” was. Mr. Taylor was convicted of burglary under a state statute, but his prison sentence was being increased because of a federal statute. The Supreme Court ruled that reviewing courts need a clear working definition of “burglary” – a definition that the reviewing court needs to determine based on a number of sources, including federal law, the laws of the 50 states, and other sources.
In subsequent cases, the Supreme Court has held that the requirement in Taylor applies in cases involving noncitizens who have been convicted of crimes and who are subsequently charged in Immigration Court as being removable or “deportable” from the United States as a result of their criminal convictions. If a noncitizen is convicted of a crime under a state law, then the reviewing courts in the subsequent removal proceedings – Immigration Courts, the Board of Immigration Appeals (BIA), and U.S. courts of appeals – must work with a definition of the crime of conviction that is derived from the contemporary, “generic sense in which the term is now used in the criminal codes of most States,” federal law, and the Model Penal Code. Taylor v. United States, 495 U.S. 575, 598 (1990).
Since at least 2007, in a case called Gonzales v. Duenas-Alvarez, the Supreme Court has applied this requirement from Taylor to the immigration context. In subsequent cases, including as recently as June 2016, the Supreme Court has continued to require courts to determine a definition of the crime of conviction based on federal law, the laws of most states, and other factors. See, for example, the Supreme Court’s decisions in Nijhawan v. Holder, (2009), Kawashima v. Holder, (2012), and Moncrieffe v. Holder, (2013). In the Supreme Court’s most recent case citing Taylor, although the case did not directly address an immigration matter, the Supreme Court mentioned the application of Taylorto immigration cases. Mathis v. United States, (2016).
In our case, we argue that the requirement of Taylor v. United States applies. And we argue that the fact that the conduct for which our client was convicted is perfectly legal under federal law, as well as the laws of 43 states and the District of Columbia, means that under Taylor, our client’s conviction is not an “aggravated felony” under immigration law, because conduct that is perfectly legal in such a large majority of the country, and under federal law, could not meet the definition of “sexual abuse of a minor” under the requirements of Taylor.
In their brief in opposition, the Government mentioned Taylor in only one paragraph in which the Government described the Sixth Circuit’s approach to our case. The Government did not argue that Taylor does not apply.
We will be following up later this week regarding our reply to the Government’s brief in opposition in our case at the Supreme Court.
On July 11, 2016, my colleagues and I submitted a petition to the U.S. Supreme Court to review the decision of the Sixth Circuit that upheld the Board of Immigration Appeals holding that my client’s conviction is an aggravated felony.
On September 16, 2016, the Solicitor General of the United States, the office representing the U.S. government against my client, submitted a brief in opposition to our petition.
As I explained in an earlier posting about our petition, we have several reasons for requesting review by the Supreme Court.
First, the U.S. Courts of Appeals are deeply divided over the question of whether a conviction like my client’s – consensual sex between a 21-year-old and a person just under age 18 – is an “aggravated felony” under U.S. immigration law.
Second, we all need to receive a clear definition of what “sexual abuse of a minor” is, and what it is not. Only by knowing what the immigration and deportation consequences of a conviction actually are may we all act accordingly – noncitizens, prosecutors, and attorneys representing noncitizens.
Third, we believe that the Sixth Circuit made an incorrect decision in our case. The U.S. Supreme Court, in a case called Taylor v. United States, requires a clear definition of what constitutes a particular crime. In our case, we need to know exactly what “sexual abuse of a minor” is, and what it is not. Under the federal law, the laws of 43 states, and the law of the District of Columbia, consensual sex between a person age 21 and person just under age 18 is not a crime at all. Under the Supreme Court’s holding in Taylor v. United States, the BIA should have provided a clear definition of what “sexual abuse of a minor” is, and it appears clear that my client’s conviction is not “sexual abuse of a minor.”
The Solicitor General’s brief in opposition claims that there exists no conflicts among the courts of appeal about the definition of “sexual abuse of a minor.” The government’s assertion appears to ignore the decisions of the 4th, 9th, and 10th Circuits, all of which have rejected the BIA’s case law regarding “sexual abuse of a minor.”
The Solicitor General also argues that the 9th Circuit could, in future cases, agree with the BIA’s decision in Matter of Esquivel-Quintana, the BIA’s decision in our case. The Solicitor General’s assertion appears extremely unlikely to become a reality. First, the Department of Homeland Security is not likely to prosecute cases within the 9th Circuit because of the 9th Circuit’s unanimous en banc decision in Estrada-Espinoza v. Mukasey, which held that a conviction for consensual sex between a person under age 18 and a person more than 3 years older – the exact same statute under which my client was convicted – is not an aggravated felony for purposes of immigration law.
In fact, the Department of Homeland Security did not prosecute my client until he left the 9th Circuit and moved to Michigan, in the 6th Circuit. Second, even if the Department of Homeland Security decided to prosecute such cases within the 9th Circuit, it is not likely that the 9th Circuit would follow the BIA’s holding in our case. To do so would require the 9th Circuit to have another en banc decision to overturn its own precedent. This is not likely, in light of the fact that the 9th Circuit has repeatedly followed and reaffirmed its own precedent in this area of the law.
The Solicitor General’s brief in opposition largely appears to ignore our argument that the BIA and the Sixth Circuit failed to comply with the requirements of Taylor v. United States. Apparently, the Solicitor General might be taking the position that Taylor does not apply to our case.
I will continue to post updates regarding this case as it develops in the weeks and months ahead.
Next week, we expect to receive the Solicitor General’s response to our petition to the Supreme Court for a writ of certiorari in Esquivel-Quintana v. Lynch. And, we expect that in October, the Supreme Court will be considering whether or not to accept the case for review.
Meanwhile, David Feder has posted about the case in the Yale Journal on Regulation.
Mr. Feder was one of the attorneys representing the National Association of Criminal Defense Lawyers in an amicus brief to the Supreme Court regarding our case.
In his post, Mr. Feder argues that if the Supreme Court decides to hear the case, the Court should take the approach that Chevron deference is not appropriate in this case because the statute at issue is a hybrid statute – a civil statute that has criminal law applications. If the Court takes this approach, then the Court could conclude that the rule of lenity applies, which would mean that if the statute at issue is ambiguous, then my client’s conviction should not be considered to be an “aggravated felony” for purposes of immigration law.
We will continue to provide updates regarding this case.
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:
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.
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.