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.