Does the defendant’s conviction of unlawful sexual intercourse with a child under Florida law constitute the federal offense of an aggravated felony under 8 U.S.C. § 1101(a)(43)(A)?
The Supreme Court will decide whether a conviction under a California criminal statute prohibiting unlawful sexual intercourse with a minor categorically constitutes “aggravated felony” under a federal statute prohibiting “sexual abuse of a minor”—a violation that would provide a legal basis for deportation of a noncitizen. Juan Esquivel-Quintana argues that his conviction does not meet the federal definition if the lowest qualifying conduct under the state statute does not necessarily constitute a crime under the federal statute. He argues that federal law, the Model Penal Code, and the criminal laws of forty-three states affirm that his conduct is not convictable under the federal statute and thus fails categorically. Moreover, he argues that the Court should not defer to the Board’s determination that ‘minor’ under the federal statute means anyone under eighteen years of age because, among other reasons, it impermissibly relies on non-criminal law guidance. In rebuttal, Attorney General Loretta E. Lynch argues that a plain-language interpretation of the California statute is sufficient to resolve the issue against Esquivel-Quintana and that a multi-jurisdictional analysis is unnecessary in light of the plain language. If, however, the Court determines there to be ambiguities, Lynch asserts that the Board’s determination is reasonable and should be offered deference by the Court. This case may have policy implications regarding separation of powers and fair notice concerns.
Questions as Framed for the Court by the Parties
Under federal law, the Model Penal Code, and the laws of 43 states and the District of Columbia, consensual sexual intercourse between a 21-year-old and someone almost 18 is legal. Seven states have statutes criminalizing such conduct.
The question presented is whether a conviction under one of those seven state statutes constitutes the “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act—and therefore constitutes grounds for mandatory removal.
Juan Esquivel-Quintana entered the United States from Mexico in 2000 under an immigrant visa and then became a lawful permanent resident. When Esquivel-Quintana was twenty years old, he had consensual sex with his girlfriend who was sixteen at the time. California law criminalizes “sexual intercourse with a minor who is more than three years younger than the perpetrator.” Under this statute, Esquivel-Quintana was charged with unlawful sexual intercourse with a minor and pled guilty. As a result, he was sentenced to serve ninety days in jail and five years of probation. After his conviction, Esquivel-Quintana moved from his former residence in California to Michigan.
The Department of Homeland Security (“Department”) then began the process of seeking Esquivel-Quintana’s removal from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii) gives the Department authority to seek deportation for non-citizens convicted of an “aggravated felony,” which includes the “sexual abuse of a minor.”
The Immigration Judge agreed with the Government that Esquivel-Quintana’s California conviction was sufficient to comprise an “aggravated felony,” such to require his deportation. The Board of Immigration Appeals (“Board”) affirmed the Immigration Judge’s decision. The Board reached its decision by taking a categorical approach to the problem, thus determining that the federal law categorically included convictions under the Florida statute. The Board then found that if the conviction included a minor of sixteen or seventeen years of age, there must be a “meaningful age differential” between the victim and defendant in order to meet the demands of the statute. Esquivel-Quintana again appealed.
On January 15, 2016, the United States Court of Appeals for the Sixth Circuit decided the appeal, affirming the Board’s decision and denying Esquivel-Quintana’s petition for review. In doing so, the Sixth Circuit first held that it would follow a Chevron analysis in deciding whether the Board correctly decided the case. Additionally, the Sixth Circuit also held that although there might be some indications that the rule of lenity might apply in cases such as this, Supreme Court precedent instead urges the Chevron approach. Finally, the court ruled that the applicable statute was ambiguous and that the Board’s interpretation was permissible. Judge Sutton wrote an additional opinion concurring in part and dissenting in part.
Esquivel-Quintana then appealed to the Supreme Court, which granted certiorari on October 28, 2016.
HOW SHOULD A CATEGORICAL APPROACH APPLY TO THIS CASE?
Both parties agree that the Court must use a “categorical approach” to determine if a state conviction qualifies as an “aggravated felony” under 8 U.S.C. §1101(a)(43)(A) of the Immigration and Nationality Act (“INA”). The parties, however, disagree on what that approach looks like and ultimately come to opposite conclusions.
Esquivel-Quintana argues that his conviction under the California statute does not constitute the “aggravated felony” of “sexual abuse of a minor” under the federal statute. He posits that his conviction does not fall under the federal statute if the lowest qualifying conduct under the state statute does not necessarily constitute a crime under the federal statute. If there is no “readily apparent uniform federal definition of that crime,” as he argues is the case here, the Court must find the “generic” definition of that crime through a multi-jurisdictional analysis. Here, Esquivel-Quintana asserts that federal law, the Model Penal Code, and the criminal laws of forty-three states affirm that his conduct—consensual sex between a 21-year-old and a partner just under eighteen—is not convictable under the federal statute. Furthermore, he contends that six of the seven remaining states exclude his conduct from what is considered “sexual abuse,” using the term only to describe situations where the victim is younger than a certain age, and the offender is in a position of authority over the victim. Esquivel-Quintana maintains that conduct which is lawful in nearly all jurisdictions and a misdemeanor in most others cannot be an “aggravated felony,” which is defined as a felony that becomes worse or more serious because of, for example, violence, presence of a deadly weapon, or intent to also commit another crime. Moreover, Esquivel-Quintana notes that under federal law 18 U.S.C. § 2243—the only federal statute that provides a definition of “sexual abuse of a minor”—the victim must be under sixteen years old, and the defendant must be at least four years older. This statutory requirement, he points out, is mirrored in the Model Penal Code.
Whereas Esquivel-Quintana suggests definitional commonalities across the states, Lynch argues that, in fact, majority consensus is hard to articulate. First, Lynch contends that the Court should not simply look to state law to determine the meaning of the federal provision in this case because such methodology is only useful when a term carries an established common law meaning or has a specialized legal meaning or where state law “uniformly treats” the conduct in a particular manner. Lynch asserts that a categorical approach does not require a multi-jurisdictional analysis, particularly when, as in this case, the federal provision does not use a common law meaning. Indeed, Lynch posits that a plain-language interpretation of “sexual abuse of a minor” most naturally encompasses all sexual crimes against individuals less than eighteen years old. By looking at state statutory rape provisions meant to protect minors, Lynch argues that it is hard to track commonalities with respect to victim’s age, offender’s age, age differential, and offense conduct. As such, Lynch contends that trying to find whether a majority consensus exists is difficult and perhaps impossible. Still, Lynch points out that in two-thirds of the states where the age of consent is either seventeen or eighteen years old, the minimum age differential is three years or less.
Moreover, Lynch argues that Esquivel-Quintana’s proposed methodology conflates two distinct steps of the categorical approach: rather than answering the primary question of what Congress meant when it used the term “sexual abuse of a minor” in the federal statute, Esquivel-Quintana asks a different, secondary question of whether the lowest qualifying conduct under his prior California offense would be “lawful” in most states. As Lynch states, Esquivel-Quintana’s proposed methodology compares his California conviction not against the federal statute but against the laws of other states. Lynch argues that such methodology would find commonalities for the term “sexual abuse of a minor” only at the lowest common denominator rather than addressing the full range of sexually abusive conduct. Moreover, Lynch opines that Esquivel-Quintana’s methodology is difficult and burdensome to apply because a new 50-state survey would be needed for each state offense.
IS THE BOARD’S VIEW ENTITLED TO CHEVRON DEFERENCE?
Esquivel-Quintana acknowledges that the lower court declared the phrase “sexual abuse of a minor” to be “ambiguous” because Congress did not define the terms “sexual abuse” and “minor”; consequently, the administrative board’s view that the phrase encompasses convictions under the California statute merits Chevron deference. Esquivel-Quintana argues, however, that all “traditional tools of statutory construct” have to be exhausted prior to a statute being pronounced ambiguous. Esquivel-Quintana states that the categorical approach is an interpretative tool to help resolve any ambiguities and that the categorical approach clearly states that the term does not encompass convictions under the California statute. Esquivel-Quintana asserts that, even if the categorical approach does not give a definitive answer, the Court still needs to “exhaust traditional tiebreaking canons” prior to deeming a statute ambiguous. For one, Esquivel-Quintana states that there is a longstanding principle in deportation statutes that favor the alien, in part addressing the issue of putting noncitizens on notice that criminal convictions may trigger deportation. As such, Esquivel-Quintana argues, if there are any ambiguities, they must be resolved in his favor because the term “sexual abuse of a minor” does not alert him to the possibility of mandatory deportation. Secondly, Esquivel-Quintana asserts that any ambiguity in the federal statute also triggers the criminal rule of lenity, which also requires courts to resolve the ambiguity in favor of defendants. Lastly, Esquivel-Quintana maintains that even if there were ambiguities triggering Chevron deference, the Board’s adjudicatory decision in construing the statute was not “a reasonable construction” because, among other reasons, it incorrectly sought guidance from a procedural statute and non-criminal sources rather than confining itself to substantive criminal laws.
First, Lynch rejects Esquivel-Quintana’s argument that the categorical approach should be used to resolve any ambiguities by again pointing out the two-step approach; she states that ambiguities in comparing federal provisions to the state convictions at the second stage does not displace normal tools of statutory construction when interpreting the federal provision at step one. Next, Lynch argues that neither the tradition of favoring the alien nor the rule of lenity apply until after the Attorney General has had an opportunity to interpret the relevant statutory provisions. Lynch stresses that the Court has consistently instructed that the administrative board should be given Chevron deference to interpret ambiguous statutory terms through a case-by-case adjudication; if favoring the alien tradition or the rule of lenity were to apply, this deference would be unnecessary because the Board’s interpretation would either have to be unambiguous or automatically resolved in the alien’s favor. Lynch asserts that if there is ambiguity in the statute, the Board’s construction of the statute is based on a permissible construction and therefore merits Chevron deference by the Court. Lynch argues that the Board’s interpretation was reasonable because it construed the federal statute consistently with its plain language, legislative history and purpose, and context. Lynch points out that the Board’s reliance on a federal provision in interpreting the term “sexual abuse” is consistent with the contemporary dictionary definition. Similarly, Lynch points out that the dictionary definition of a “minor” is anyone under the age of 18.
NOTICE AND FAIRNESS
The Immigrant Defense Project, in support of Esquivel-Quintana, argues that the Government’s proposed approach raises concerns about providing fair notice to citizens about what conduct is criminalized. Furthermore, Immigrant Defense Project contends that if the Board is allowed to pursue a “case-by-case” analysis, it may result in due process concerns. Similarly, the National Association of Criminal Defense Lawyers (“NACDL”), in support of Esquivel-Quintana, asserts that if deference is given to agency interpretations of statutes with criminal aspects, citizens will be left without adequate notice of how the statute will be reasonably interpreted and how that interpretation might change over time. The NACDL also argues that this problem will create further difficulties for defense attorneys who will need to both remain informed about administrative changes and predict future administrative rulings in order to adequately advise their clients.
Additionally, the National Immigrant Justice Center and the American Immigration Lawyers Association, both in support of Esquivel-Quintana, add that the Government’s approach implicates basic fairness concerns. They contend that deportation is a very severe consequence, and classifying this offense as an aggravated felony makes deportation mandatory. They also argue that although this statute is designed for “a humanitarian result,” mandatory deportation would remove judicial discretion and perhaps harm the families of those deported, which may include American citizens.
On the other hand, Lynch argues that the Government’s position does not create a problem of inadequate notice for citizens. Lynch suggests that the Court has rejected similar arguments in the past and that Esquivel-Quintana had adequate notice due to previous Board decisions applying similar rules. Furthermore, Lynch contends that if this approach raises fairness concerns for defendants, particularly regarding retroactivity, their issues should be addressed on a case-by-case basis, rather than through a complete reworking of the system. Finally, in response to concerns regarding hardship, Lynch asserts that Esquivel-Quintana’s proposed approach would impose a burden on the state in prosecuting these cases. Lynch argues that this approach would require a new overview of the laws of each state in order to determine if a state conviction qualifies.
SEPARATION OF POWERS
The NACDL, in support of Esquivel-Quintana, argues that the Court should not afford Chevron deference, but should instead apply the rule of lenity, in order to protect separation of powers. The NACDL contends that the duty of outlining criminal responsibility should fall to Congress rather than the courts. Additionally, the NACDL maintains that giving deference to agency interpretations of statutes involving criminal components gives broad power to the executive branch to define criminal liability. The NACDL asserts that this delegation violates traditional rules of congressional delegation.
In rebuttal, Lynch argues that adopting the rule of lenity results in a different separation of powers issue. More specifically, Lynch contends that the Attorney General has the power of interpretation for this federal immigration statute and that this power has been delegated to the Board. Therefore, Lynch argues, to not give deference to the Board’s interpretations limits the Attorney General’s power. Finally, Lynch asserts that this line of thinking could result in the Board’s loss of power to handle issues related to national security and terrorism.
- Kelly Knaub, Justices To Consider If Sex With Minor Voids Green Card, Law360 (Oct. 28, 2016).
- Jonathan H. Adler, Should Chevron Deference Apply to Agency Interpretations of Statutes With Criminal Applications?, Washington Post (Jan. 15, 2016).