We have now submitted our reply brief to the Supreme Court, in response to the Government’s brief in opposition to our petition.
In the reply, we take aim at the Government’s assertion that there is no significant disagreement among the circuit courts of appeals on the question of what constitutes “sexual abuse of a minor” in the context of consensual sex between a person age 16 or 17 and another person who is 3 years older. We criticize the Government’s characterization of the Ninth Circuit’s decision in Estrada-Espinoza v. Mukasey (2008), a unanimous decision of 11 judges that a conviction under California Penal Code 261.5(c) – the same statute under which our client was convicted – is not “sexual abuse of a minor.”
We also disagree with the Government’s assertion that the Ninth Circuit could change course and conclude that such a conviction is sexual abuse of a minor – we find such a possibility extremely unlikely. And we find fault with the Government’s approach to the cases in the Fourth and Tenth Circuits – both finding that consensual sex in this context is not “sexual abuse of a minor.”
Perhaps even more importantly, the Government’s silence speaks volumes in response to our argument that the Supreme Court’s decision in Taylor v. United States applies to our case. In its silence, the Government appears to either concede that Taylor applies, or else assume that it does not apply to our case. If Taylor applies, then the Board of Immigration Appeals (BIA) and the Sixth Circuit were required to consider a definition of the crime of conviction that is derived from the way in which the term is now used in the criminal codes of most states and federal law.
And it is undeniable that the Federal Government, 43 states and the District of Columbia have laws that do not criminalize consensual sex between a 17-year-old and a person 3 years older. According to the requirements of Taylor, a definition of “sexual abuse of a minor” could not include a conviction under California Penal Code 261.5(c).
In our reply to the Government’s opposition, we also assert that the Sixth Circuit should not have deferred to the BIA’s decision under a 1984 Supreme Court case called Chevron U.S.A. v. Natural Resources Defense Council, for two reasons. First, the approach required by Taylor resolves the issue, and deference to the BIA is not warranted. Second, because the term “sexual abuse of a minor” has both criminal and civil applications in federal law, the criminal rule of lenity trumps Chevron deference.
The Government appears to be arguing that the term “sexual abuse of a minor” can mean two different things – it can mean one thing in a civil proceeding, and a different thing in a criminal proceeding. The Government’s position goes against numerous Supreme Court cases stating that a statute must mean the same thing in all contexts.
In the coming weeks, the Supreme Court will be considering whether to accept our case for consideration. The odds are stacked against us. The Supreme Court only accepts about 5 percent of the cases presented to it, despite the fact that many of those cases are wrongly decided at the appeals court level. We hope that we can beat the odds in this case.