The NACDL brief asks the Supreme Court to hear our case for two main reasons – because the criminal rule of lenity is important and should be applied to this case, and because the Sixth Circuit’s and the BIA’s handling of the case results in serious problems for persons accused of certain crimes, criminal defense lawyers, and immigration lawyers.
First, NACDL explains that the list of crimes labeled “aggravated felonies” in the Immigration and Nationality Act makes up a statute that has both civil and criminal applications, and is thus referred to as a “hybrid” statute. The NACDL argues, in agreement with Judge Jeffrey Sutton’s dissent in the Sixth Circuit decision in our case, that if the “hybrid” statute at issue in our case is “ambiguous,” meaning capable of two or more different valid interpretations, then the criminal rule of lenity applies.
The rule of lenity is similar to the baseball rule that the “tie goes to the batter” – if the runner gets to the base at exactly the same time as the fielder with the ball, then the runner is safe. Similarly, if a statute with criminal applications is ambiguous, then the statute must be interpreted in a manner that is more favorable to the criminal defendant.
Second, NACDL argues that the BIA and the Sixth Circuit handled the categorical approach in an improper way that led to the result against my client. The Supreme Court has stated, in a number of cases, that agencies such as the BIA and reviewing courts must use a “generic, contemporary definition” of a crime – a definition that is shared by a majority of states, as well as the federal government.
At issue in this case is the definition of “sexual abuse of a minor.” A major problem with the way the BIA and the Sixth Circuit handled this case is that neither ever provided a “generic, contemporary defintion” of what “sexual abuse of a minor” actually IS. As a result, my client was labeled as an “aggravated felon” and deported from the United States, because he engaged in conduct that is perfectly legal under federal law, as well as the laws of 43 states and the District of Columbia. As NACDL explains, the BIA and the Sixth Circuit failed to apply the categorical approach correctly in this case.
Because we still don’t know exactly what “sexual abuse of a minor” is, because the BIA has not told us what it is, criminal defense attorneys and immigration lawyers are not able to properly advise their clients who have been charged with certain crimes, because no one knows whether a certain crime will end up being labeled as an “aggravated felony,” because, again, we don’t have a clear definition of what “sexual abuse of a minor” is.
NACDL urges the Supreme Court to hear this case, in order to clear up the disagreements among the circuit courts, to address the issue of the rule of lenity, and to provide a proper application of the categorical approach, so that we will all be able to know, once and for all, what the “aggravated felony” of “sexual abuse of a minor” is, and what it is not.
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.
U.S. Immigration and Customs Enforcement (ICE) opened a new permanent facility in Sault Ste. Marie, Michigan. The facility will establish a stronger enforcement presence for the Department of Homeland Security in northern Michigan.
Click here for a brief article about the new facility.
The Alliance for Immigrants Rights & Reform Michigan (AIR) will host an “Immigrants Know Your Rights” meeting on Saturday, April 2, 2011, beginning at 12:30 pm at Grace & Peace Community Church, 451 W. Kennett Ave., Pontiac, Michigan 48340.
The meeting will include presentations regarding your rights as an immigrant. Immigration attorneys will be available to conduct free legal consultations.
Please click here for more information.
Gov. Rick Snyder called for more immigrants to settle in Michigan, after reviewing recent U.S. Census data showing that Michigan is the only state that had an overall loss of population from 2000 to 2010.
Speaking recently at an annual “Michigan Muslim Capitol Day” event, Gov. Snyder said, “We need to celebrate diversity; it’s one of our strengths. One of the things I’m proud to say I’m already encouraging, that was in my state of the state message, is the idea of more immigration, particularly for advanced degree people.”
Click here to read more about Gov. Snyder’s speech.
The editorial opinions against House Bill 4305 continue to accumulate.
The Times Herald, a news source from Port Huron, Michigan, recently published an editorial against the proposed anti-immigrant legislation, stating, “Police resources should be devoted to upholding public safety. Officers need to be able to make arrests when they have evidence that someone has committed a crime, not spend their time investigating whether someone is in the country illegally.”
The Holland Sentinel, a publication based in Holland, Michigan, cautioned that HB 4305 would amount to racial profiling: “HB 4305 might be justifiable if all Americans — whether it’s someone whose ancestors came over on the Mayflower or a Somali immigrant who took the naturalization oath last week — were required to carry citizenship papers, but that’s not the case. An Arizona-style law would create a discriminatory system, effectively requiring hundreds of thousands of non-white Michigan residents — people just as American as their white neighbors — to carry papers with them proving their legal status.”
In the Detroit Free Press, Gus West, board chair and president of the Hispanic Institute, calls on Latino leaders to respond forcefully against assaults on immigrants’ rights. Referring to a proposal recently introduced in the Michigan legislature, HB 4305, which seeks to follow in the footsteps of Arizona’s anti-immigrant legislation, Mr. West urges leaders to “lead the way” against such measures.
Mr. West connects the current anti-immigrant sentiment to past eras in American history, as he writes: “The tactic isn’t new. The archives of newspapers from the 1920s are filled with similar stories — not about Hispanics, but about Italians, Germans, Eastern European Jews and others who came to America to make better lives. Those groups overcame the prejudices of the day, often with help from leaders from their respective ethnic groups, and so will Hispanics. But, it won’t happen as quickly or as effectively for Hispanics without support from the Latino leadership.”
Click here to go to the commentary at the Detroit Free Press.
In a recent editorial, the Detroit Free Press criticized anti-immigrant legislation (HB 4305) proposed by state Rep. Dave Agema.
Take a look at the editorial here.
Immigrants to Michigan provide an overall benefits to the state’s economy, according to a report published by the Michigan League for Human Services.
Highlights from the report include these key points:
• Immigrants are responsible for 33 percent of all hightech startups, making Michigan third among all states in producing new high-tech business opportunities.
• In 2006, 22 percent of the international patent applications from Michigan listed a foreign-born resident as one of their key inventors, ranking Michigan 8th in the nation.
• During the 2008-2009 year, foreign students contributed $592 million to the local economy in tuition, fees, and living expenses.
• In 2008, 37 percent of the Michigan immigrant population had a college degree, an increase of 27 percent since 2000.
• 44 percent of all engineering master’s degrees and 62 percent of engineering doctorates are awarded to foreign-born students in the state.
• Michigan stands to lose over $3.8 billion in economic activity, $1.7 billion in gross state product, and approximately 20,000 jobs with the removal of all unauthorized workers from the labor force.
The New Economy Initiative of Southeast Michigan, the Detroit Chamber of Commerce and The Skillman Foundation recently published a report on the effects of immigrants on Michigan’s economy. The study finds that immigrants can play an important role in revitalizing older neighborhoods and helping the region to shift to a healthier economy.
You may find more about the study here.