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.
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.
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.
If you have received a document from the U.S. Department of Homeland Security titled “Notice to Appear,” then you have probably been placed, or will likely soon be placed, in Removal Proceedings in Immigration Court.
Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.