Esquivel-Quintana v. Lynch: The Potential Sleeper Case of the Supreme Court Term, by David Feder
On Notice and Comment (Esquivel-Quintana v. Lynch: The Potential Sleeper Case of the Supreme Court Term), David Feder previews important issues in a cert petition currently pending before the Supreme Court:
“You might never have heard of Esquivel-Quintana v. Lynch, but it’s potentially the darkhorse case of this year’s Supreme Court Term. Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars. Yet Esquivel-Quintana threatens to take a big bite out of Chevron—and has gone almost entirely under the radar. It’s worth your attention.
At issue in Esquivel-Quintana v. Lynch is whether a conviction for consensual sexual intercourse between a twenty-one-year old and a seventeen-year old constitutes the “aggravated felony” of “sexual abuse of a minor” under the Immigration and Nationality Act—thereby trigging the Act’s mandatory removal provision. Under federal law, the Model Penal Code, and the laws of forty-three states (plus Washington D.C.), this conduct would not even be illegal—let alone an aggravated felony.
A divided panel of the Sixth Circuit, however, concluded otherwise. Under the Immigration and Nationality Act, a noncitizen may not seek discretionary relief from removal when he or she has been convicted of a crime that the Act classifies as an “aggravated felony.” The Act defines “aggravated felony,” in turn, to include the “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). And the Board of Immigration Appeals, in turn, interpreted “sexual abuse of a minor” to include California Penal Code § 261.5(c), which makes it a crime for an adult to have sex with an individual “under the age of 18 years” whenever the age difference between the parties is more than 3 years.
Although acknowledging that this civil statute also had criminal applications, the majority deferred to the Board’s interpretation under Chevron based on a footnote in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), which explained that the Court had “never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement,” id. at 704 n.18.
On this point, Judge Sutton dissented. He would have applied the rule of lenity rather than Chevron deference and construed the ambiguity in the term “aggravated felony” in favor of Mr. Esquivel-Quintana, rather than against him—as the Board did. There are two pillars to his analysis. First, Chevron deference is inappropriate when it comes to criminal statutes, which “are for courts, not for the Government, to construe.” Abramski v. United States, 134 S. Ct. 2259, 2274 (2014). Second, statutes have only one meaning, whether in a criminal or civil context. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). As Judge Sutton memorably put it in an earlier case, “[s]tatutes are not ‘chameleons’ that mean one thing in one setting and something else in another.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 730 (2013) (Sutton, J., concurring). Putting these two principles together, he concluded that Chevron deference was inappropriate to a hybrid civil-criminal statute.”
Here is the punchline:
“I think that it is likely that the Supreme Court will grant certiorari in Esquivel-Quintana—Professor Jeff Fisher has written an excellent certiorari petition, there are a two independently certiorari-worthy issues, and the Supreme Court needs more cases which aren’t likely to split 4-4.”
KJ