Esquivel-Quintana v. Lynch, Part 2

On October 14, 2015, I argued a case at the U.S. Court of Appeals for the Sixth Circuit.  The case is titled Esquivel-Quintana v. Lynch.  You may click here to listen to an audio recording of the argument, which runs for 37 minutes.

I recently posted an introduction to this case, which you can read by clicking here.

I also recently posted Part 1 of a report on the argument, which you can read here.

In Part 2 here, I am discussing why the decision of the Board of Immigration Appeals (BIA) in our case is not entitled to deference.

In general, decisions of agencies such as the BIA are entitled to deference from federal appeals courts, if the term being interpreted is “ambiguous.”  The deference is referred to as Chevron deference, from a Supreme Court case called Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

We argued that the BIA is not entitled to Chevron deference for the following reasons:

First, we argued that the definition of “sexual abuse of a minor,” and in fact all of the terms regarding “aggravated felonies” at 8 USC 1101(a)(43), are used both by the BIA and by federal courts.  For example, the term “sexual abuse of a minor” is used by the BIA in cases such as ours, but it is also used by federal courts in cases involving sentencing of persons for illegal re-entry to the United States.  In the illegal re-entry cases, the federal courts do not owe the BIA any deference at all, because the BIA is not involved in any way in the criminal sentencing of a person for having illegally re-entered the United States.  The U.S. Supreme Court, in a case called Leocal v. Ashcroft, 543 U.S. 1 (2004), has stated that a statute with both criminal and noncriminal applications must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context.”

The problem with granting deference to the BIA’s decision is that the BIA’s decision would then bind federal judges in criminal applications of aggravated felony terms such as “sexual abuse of a minor” to apply the BIA’s definition, when in fact the BIA is due no deference in criminal sentencing cases.

Second, we argued that the BIA, in fact, has never provided a definition of “sexual abuse of a minor,” and because it has not provided a definition, the BIA’s decision is not due any deference.

Third, we argued that the term “sexual abuse of a minor” is not ambiguous.  The term is defined by a federal statute at 18 USC 2243.

When we receive a decision from the U.S. Court of Appeals for the Sixth Circuit, we will provide an analysis of the decision.


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