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.
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, we submitted our opening brief on the merits to the Supreme Court in Esquivel-Quintana v. Lynch.
You can read more about this case at this dedicated page.
Our main arguments are as follows:
The Board of Immigration Appeals (BIA) concluded that our client’s California conviction, for consensual sex with his girlfriend when she was under age 18 and he was more than 3 years older, constitutes “sexual abuse of a minor” under federal immigration law, which is an “aggravated felony” leading to immediate deportation. The U.S. Court of Appeals for the Sixth Circuit upheld the BIA’s decision. We argue that our client’s conviction is not “sexual abuse of a minor” under federal immigration law for the following reasons.
First, we argue that the categorical approach applies to our case. And the categorical approach requires that we have a generic definition of the crime at issue. And in order to determine what the generic definition is, we must look to the laws of the 50 states and federal law. Because the federal government, 43 states, and the District of Columbia do not criminalize consensual sex between a person under age 18 and another person more than 3 years older (they set the age of sexual consent at either 16 or 17), we assert that, under the Supreme Court’s decision in Taylor v. United States, our client’s conviction is not “sexual abuse of a minor.”
Second, we assert that the BIA is not entitled to any deference under Chevron USA v. NRDC, an important Supreme Court case that holds that reviewing courts must defer to federal agencies, such as the BIA, in certain circumstances in which a statute is “ambiguous.” First, we argue that the circumstances of our case do not lead to any deference to the BIA’s decision. The statute is not ambiguous, in our opinion, because after engaging in the categorical approach, and determining that the overwhelming number of states and federal law do not criminalize the conduct for which our client was convicted, it is clear that the California statute of conviction in our case is not “sexual abuse of a minor.” Second, even if the Supreme Court were to conclude that there is ambiguity, the criminal rule of lenity should lead to a conclusion that our client’s conviction is not “sexual abuse of a minor.” The phrase “sexual abuse of a minor” in the federal immigration statute has both immigration consequences and criminal consequences. This “hybrid statute” must mean the same thing in both immigration and criminal cases. And in a criminal case, the criminal rule of lenity requires an ambiguous statute to be read in the way most lenient to the defendant. Third, we assert that the BIA is not entitled to any deference because its decision was unreasonable.
We expect that the Supreme Court will set oral argument for our case on a date in late February 2017.
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.
The justices of the Supreme Court met on Friday, October 14, to review petitions, including our petition in Esquivel-Quintana v. Lynch. On Monday, October 17, the Court issued an order list, indicating their actions on a number of cases, including many cases in which the Court denied requests to hear the case.
Thankfully, the Court did not include our case among the list of denied cases. Although we can’t be 100 percent sure, it appears likely that our case has been “relisted,” which means that the Court will probably consider our case at the next conference, scheduled for October 28. On October 31, the Court will issue another order list.
Studies of the Court’s decisions show that for most cases that the Court decides to hear, the Court first “relists” the case, at least once. For a thoughtful review of the relisting process, please take a look at this brief article posted by Michael Kimberly, John Elwood, and Ralph Mayrell.
We will continue provide updates on this case.
In the reply, we take aim at the Government’s assertion that there is no significant disagreement among the circuit courts of appeals on the question of what constitutes “sexual abuse of a minor” in the context of consensual sex between a person age 16 or 17 and another person who is 3 years older. We criticize the Government’s characterization of the Ninth Circuit’s decision in Estrada-Espinoza v. Mukasey (2008), a unanimous decision of 11 judges that a conviction under California Penal Code 261.5(c) – the same statute under which our client was convicted – is not “sexual abuse of a minor.”
We also disagree with the Government’s assertion that the Ninth Circuit could change course and conclude that such a conviction is sexual abuse of a minor – we find such a possibility extremely unlikely. And we find fault with the Government’s approach to the cases in the Fourth and Tenth Circuits – both finding that consensual sex in this context is not “sexual abuse of a minor.”
Perhaps even more importantly, the Government’s silence speaks volumes in response to our argument that the Supreme Court’s decision in Taylor v. United States applies to our case. In its silence, the Government appears to either concede that Taylor applies, or else assume that it does not apply to our case. If Taylor applies, then the Board of Immigration Appeals (BIA) and the Sixth Circuit were required to consider a definition of the crime of conviction that is derived from the way in which the term is now used in the criminal codes of most states and federal law.
And it is undeniable that the Federal Government, 43 states and the District of Columbia have laws that do not criminalize consensual sex between a 17-year-old and a person 3 years older. According to the requirements of Taylor, a definition of “sexual abuse of a minor” could not include a conviction under California Penal Code 261.5(c).
In our reply to the Government’s opposition, we also assert that the Sixth Circuit should not have deferred to the BIA’s decision under a 1984 Supreme Court case called Chevron U.S.A. v. Natural Resources Defense Council, for two reasons. First, the approach required by Taylor resolves the issue, and deference to the BIA is not warranted. Second, because the term “sexual abuse of a minor” has both criminal and civil applications in federal law, the criminal rule of lenity trumps Chevron deference.
The Government appears to be arguing that the term “sexual abuse of a minor” can mean two different things – it can mean one thing in a civil proceeding, and a different thing in a criminal proceeding. The Government’s position goes against numerous Supreme Court cases stating that a statute must mean the same thing in all contexts.
In the coming weeks, the Supreme Court will be considering whether to accept our case for consideration. The odds are stacked against us. The Supreme Court only accepts about 5 percent of the cases presented to it, despite the fact that many of those cases are wrongly decided at the appeals court level. We hope that we can beat the odds in this case.
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.