Esquivel Quintana: Argument at the Supreme Court

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.

At the Supreme Court, Jeffrey Fisher argued on behalf of Juan Esquivel Quintana. Allon Kedem argued the case for the Solicitor General.

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.

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