Esquivel-Quintana v. Lynch

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.