Argument preview: Removal of an immigrant for “sexual abuse of a minor”
on Feb 21, 2017 at 9:55 am
Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”
The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.
An “aggravated felony” conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an “aggravated felony” to include the “sexual abuse of a minor.” Claiming that Esquivel-Quintana’s conviction constituted an “aggravated felony,” the U.S. government initiated removal proceedings in Michigan. In 2008, before Esquivel-Quintana’s conviction, the U.S. Court of Appeals for the 9th Circuit had held en banc, in Estrada-Espinoza v. Mukasey, that a conviction under the California law in question did not constitute “sexual abuse of a minor” under the immigration laws and was not an aggravated felony. Although Esquivel-Quintana asked the immigration judge to apply the 9th Circuit’s reasoning to his case, the immigration judge declined to do so, accepting the government’s argument that the removal proceedings were occurring within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit – Esquivel-Quintana’s new home. The immigration judge ordered Esquivel-Quintana removed from the United States. The Board of Immigration Appeals dismissed his appeal, noting that it was not bound by 9th Circuit law because the case arose in the 6th Circuit, which had not ruled on the definition of “sexual abuse of a minor” in this context.
Applying the Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the 6th Circuit deferred to the BIA’s interpretation of “sexual abuse of a minor” and upheld the removal order. The dissent would have applied the “rule of lenity,” a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana’s conviction was not an aggravated felony.
The question presented to the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law.
Esquivel-Quintana contends that because there is no “readily apparent” uniform definition of “sexual abuse of a minor,” the court must compare the elements of the California crime against “[t]he prevailing view in the modern codes.” Such a comparison, he argues, reveals that “federal law, the Model Penal Code, and the laws of 43 states consider the least of the acts criminalized under Cal. Penal Code § 261.5(c) – consensual sex between a 21-year-old and someone almost 18 – to be entirely lawful. Six of the seven remaining states deem it not sufficiently serious to be treated as ‘sexual abuse.’” California is the exception.
Esquivel-Quintana goes on to assert that because the statute is not ambiguous, the BIA’s determination that his conviction was an aggravated felony does not warrant Chevron deference. Even if the statute were ambiguous, he points out, in cases such as Immigration and Naturalization Service v. St. Cyr, in 2001, the court has espoused “the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” Moreover, the rule of lenity also requires ambiguities in statutes with criminal applications to be narrowly construed. Finally, he maintains, the BIA’s interpretation here would not be entitled to deference because it is unreasonable.
A “friend of the court” brief in support of Esquivel-Quintana submitted by the Immigrant Defense Project and two other immigrant groups takes a slightly different approach to interpreting the relevant statute. The amici argue that when there is a “readily apparent” federal definition of an offense, the Supreme Court will apply it, as it did in in Taylor v. United States, in 1990. They contend that just such a definition exists in this case: The phrase “sexual abuse of a minor” in the statute refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year “sexual abuse of a minor” was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that “readily apparent” federal definition, Esquivel-Quintana’s conviction therefore would not constitute an aggravated felony requiring removal.
Defending the 6th Circuit’s ruling, the federal government contends that Esquivel-Quintana’s conviction is an aggravated felony under the plain language of the immigration statute or, alternatively, under the BIA’s reasonable interpretation of that provision. The government first asserts that the statutory language – “sexual abuse of a minor” – clearly encompasses all crimes involving sex with minors. In light of that clear statutory language, the government maintains, the court need not engage in the kind of time-consuming surveys of state law that are found in Esquivel-Quintana’s brief.
The government goes on to argue that, even if the court determines that the term “sexual abuse of a minor” is ambiguous, Chevron mandates deference to the BIA’s reasonable construction of that phrase. Any canon of statutory interpretation, such as the rule of lenity or the rule that ambiguities in deportation statutes should be construed in favor of the noncitizen, only comes into play as an interpretive method of last resort. In the government’s view, Chevron deference, not canons of statutory construction, carries the day in this case.
In setting a series of records for numbers of removals during President Barack Obama’s first term, the government focused its removal effects on noncitizens convicted of crimes. President Donald Trump has issued an executive order that, if implemented, would expand crime-based removals. This case illustrates some of the complexities associated with reliance on state criminal convictions in federal removals, which can lead to a lack of uniformity in the application of the U.S. immigration laws. The disparities between the states in areas of criminal law frequently relied on for removal, such as state marijuana laws, are growing, and are likely to pose interpretive challenges in the future for the federal courts in criminal-removal cases. It remains to be seen whether the justices will focus on these issues during the oral argument next week.