Esquivel-Quintana v. Lynch: 6th Circuit Decision

On January 15, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision in a case I am handling, Esquivel-Quintana v. Lynch.

For previous postings about this case, please take a look at these:

Introduction.   Part 1.   Part 2.

Judge Danny Boggs wrote the majority opinion, joined by Judge Deborah L. Cook.  Judge Jeffrey Sutton wrote a separate opinion, concurring in part and dissenting in part.

The majority decision held that the Board of Immigration Appeals (BIA) was entitled to Chevron deference, and that their interpretation of the term “sexual abuse of a minor,” that included a conviction under California Penal Code 261.5(c), is permissible.

The majority considered our arguments regarding Taylor v. United States, but concluded that Taylor does not apply to our case.  The majority concluded that Taylor involved an application of the Armed Career Criminal Act, while our case involved the Immigration and Nationality Act.  The majority did not explain in much detail why that distinction makes a difference.

The majority also considered our argument about the Rule of Lenity, which states that an ambiguous criminal statute should be resolved in the defendant’s favor.  Interestingly, the majority stated that “there are compelling reasons to apply the rule of lenity,” but ultimately concluded that “the Supreme Court has not made it the law.”  The majority stated that, while the Supreme Court has begun to distance itself from an earlier case indicating that Chevron trumps lenity, the majority did not believe that the Supreme Court indicated clearly that lower courts should apply the rule of lenity.  The majority concluded that “[a]s an ‘inferior’ court, our job is to adhere faithfully to the Supreme Court’s precedents.”

In his separate opinion, Judge Sutton stated that he disagreed with the majority about the application of the Rule of Lenity.  According to Judge Sutton, the majority should have applied the Rule of Lenity in this case, which would have led to a conclusion that, because the term “sexual abuse of a minor” is ambiguous, the ambiguity must be resolved in favor of the defendant, and thus Mr. Esquivel-Quintana’s conviction under California Penal Code 261.5(c) would not be “sexual abuse of a minor,” which would mean that he would not be an aggravated felon for purposes of immigration law, and would have the right to return to the United States again as a lawful permanent resident.

According to Judge Sutton, because the term “sexual abuse of a minor” has both civil and criminal applications in federal law, Chevron deference to the BIA should not apply:  “Chevron has no role to play in construing hybrid statutes.”  Judge Sutton stated that there may be some cases in which which neither Chevron nor the Rule of Lenity apply.  But in Judge Sutton’s view, in this case, Chevron does not apply, and the Rule of Lenity does apply.

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