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Will Sex With His Girlfriend Lead to Man's Deportation?

By Casey C. Sullivan, Esq. on March 02, 2017 2:57 PM

Juan Esquivel-Quintana was 20 years old when he pleaded no contest to having sex with his 16-year-old girlfriend. Though the relationship would not have been a crime in 43 states or under federal law, it was one in California, where the state prohibits an adult to have sex with a minor three or more years younger. And because Esquivel-Quintana was a legal immigrant, not a citizen, his conviction led the U.S. government to begin deportation proceedings.

Esquivel-Quintana's case came before the Court earlier this week, as the Justices heard arguments over whether his crime qualifies as an "aggravated felony" mandating his deportation.

Sexual Abuse and Chevron Deference

Under U.S. immigration law, immigrants convicted of an aggravated felony generally face mandatory deportation, with few options for relief. That law defines an aggravated felony to include the "sexual abuse of a minor." An immigration judge and the Board of Immigration Appeals both found that Esquivel-Quintana's relationship with his girlfriend fell within that category.

That reading of the law, and Esquivel-Quintana's removal, was upheld by the Sixth Circuit, which ruled that the BIA's interpretation was entitled to Chevron deference. Under Chevron, courts must defer to an agency's interpretation of an ambiguous law, so long as that interpretation is "based on a permissible construction".

Jeffrey Fisher, arguing for Esquivel-Quintana, said in the Supreme Court on Monday that Esquivel-Quintana's offense didn't rise to the level of "sexual abuse of a minor." The phrase was not so ambiguous to justify Chevron deference, Fisher argued. When interpreting laws referencing generic crimes, the courts are to look at federal and state analogs, Fisher said, to establish a "common core definition." Here, he asserted, those laws apply to minors under 16 and do not cover consensual relationships such as Esquivel-Quintana's.

Further, even if the phrase was ambiguous, the rule of lenity and separation of powers concerns should predominate. "In Chevron itself," Fisher explained, "the Court said you exhaust all traditional canons because you assume Congress legislated against those canons. There is no more traditional canon of construction than the criminal rule of lenity."

Should the INS Interpret Criminal Statutes?

Some of the justices seemed sympathetic to Esquivel-Quintana's plight.

Justice Kagan wondered if the Court should create a "middle ground" in its Chevron jurisprudence, where such deference wouldn't be used in criminal applications of a statute. She later noted that California's law "could mean it's a crime for a college junior to have sex with a freshman," Justice Kagan said.

Justice Kennedy questioned whether deference was appropriate given the agency and law at issue. During arguments by Allon Kedem, on behalf of the government, Kennedy stated, "I can understand Chevron in the context of an agency that has special expertise in regulation of the environment or the forest service or fishers or nuclear power. Why," he wondered, "does the INS have expertise in determining the meaning of a criminal statute?"

Still, there was no clear consensus arising during the arguments. When Kedem asserted that the rule of lenity, for example, should be used as a last resort, he received no push back from the justices.

Justice Alito, in particular, remained skeptical of Esquivel-Quintana's position throughout, wondering early on whether Esquivel-Quintana was proposing that the Court overrule Chevron itself. "No, no, no," was the reply.

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