Esquivel-Quintana v. Lynch: Our Opening Brief on the Merits

Today, we submitted our opening brief on the merits to the Supreme Court in Esquivel-Quintana v. Lynch.

You can read more about this case at this dedicated page.

Our main arguments are as follows:

The Board of Immigration Appeals (BIA) concluded that our client’s California conviction, for consensual sex with his girlfriend when she was under age 18 and he was more than 3 years older, constitutes “sexual abuse of a minor” under federal immigration law, which is an “aggravated felony” leading to immediate deportation.  The U.S. Court of Appeals for the Sixth Circuit upheld the BIA’s decision.  We argue that our client’s conviction is not “sexual abuse of a minor” under federal immigration law for the following reasons.

First, we argue that the categorical approach applies to our case.  And the categorical approach requires that we have a generic definition of the crime at issue.  And in order to determine what the generic definition is, we must look to the laws of the 50 states and federal law.  Because the federal government, 43 states, and the District of Columbia do not criminalize consensual sex between a person under age 18 and another person more than 3 years older (they set the age of sexual consent at either 16 or 17), we assert that, under the Supreme Court’s decision in Taylor v. United States, our client’s conviction is not “sexual abuse of a minor.”

Second, we assert that the BIA is not entitled to any deference under Chevron USA v. NRDC, an important Supreme Court case that holds that reviewing courts must defer to federal agencies, such as the BIA, in certain circumstances in which a statute is “ambiguous.”  First, we argue that the circumstances of our case do not lead to any deference to the BIA’s decision.  The statute is not ambiguous, in our opinion, because after engaging in the categorical approach, and determining that the overwhelming number of states and federal law do not criminalize the conduct for which our client was convicted, it is clear that the California statute of conviction in our case is not “sexual abuse of a minor.”  Second, even if the Supreme Court were to conclude that there is ambiguity, the criminal rule of lenity should lead to a conclusion that our client’s conviction is not “sexual abuse of a minor.”  The phrase “sexual abuse of a minor” in the federal immigration statute has both immigration consequences and criminal consequences.  This “hybrid statute” must mean the same thing in both immigration and criminal cases.  And in a criminal case, the criminal rule of lenity requires an ambiguous statute to be read in the way most lenient to the defendant.  Third, we assert that the BIA is not entitled to any deference because its decision was unreasonable.

We expect that the Supreme Court will set oral argument for our case on a date in late February 2017.

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