“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.
. . . . .
In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”
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PWS
02/27/17
As Paul explained in his January 31, 2017 immigrationcourtside.com post on Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).at http://immigrationcourtside.com/category/courts/10th-circuit/judge-neil-gorsuch-10th-circuit/gutierrez-brizuela-v-lynch/ “Gorsuch gets it”. , and the Esquivel case is one where a Justice Gorsuch could be decisive in a pro-immigrant precedent denying BIA the Chevron/Brand X super deference OIL’s Thom Hussey sought back at the turn of the Century, when we at the BIA (1995-2003) were most divided on such statutory interpretations. See Esquivel summary below.
Don’t be surprised if a divided 4-4 Supreme Court chooses to have the case re-argued to include J. Gorsuch, unless it has a better case readily available. Letting the 6th Circuit decision stand results in removal, and depends on how J. Kagan votes initially since she was Solicitor General when DOJ promoted super-deference, at least for immigration cases.
Contrary to present “liberal” fears about a Trumpian Justice, Gorsuch has already expressed critical skepticism for deferring to administrative agencies interpreting statutory text that does not require technical expertise. Gorsuch doubts its constitutionality under separation of powers rules! That would bode well for returning to the rule of lenity in immigrant law cases. See http://www.nationallawjournal.com/id=1202778124050/This-Gorsuch-Ruling-Pans-Agency-Deference-Heres-Why-It-Matters-to-Business?slreturn=20170128105043 as well as https://reason.com/blog/2017/02/01/gorsuch-defends-illegal-immigrants-right/print and https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf
Gorsuch, referring to both Chevron and the 2005 sequel, Brand X cases, said, “Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
Note that Gorsuch wrote a concurring opinion to his own majority opinion in the immigration case Guttierez-Brizuela starting with his assertion that “there is an elephant in the room”. I would argue that the “elephant” is actually the spirit of INS v. Chadha, 462 U.S. 919 (1983), where the Supreme Court ruled that the one-house legislative veto for administrative suspension of deportation grants violated the constitutional separation of powers]. Gutierrez-Esquivel whether a Board of Immigration Appeals’ interpretation of the meaning of an immigration law, that ran contrary to the interpretation made by the courts, could be applied retroactively.
By allowing the executive branch in effect to override judicial interpretations of laws, Gorsuch said, Chevron turns administrative agencies into a “super court of appeals. If that doesn’t qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we’ve forgotten what might.” He added, “When the political branches disagree with a judicial interpretation of existing law, the Constitution prescribes the appropriate remedial process. It’s called legislation.”
During the Justices divided on meaning of “sexual abuse of a minor” for removal purposes. Reviewing BIA decision and 6th Circuit Chevron and Brand-X deference.
http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948
Esquivel-Quintana, a 20 years old, was convicted under California law of consensual sex with his 16-year-old girlfriend. ICE initiated removal proceedings against him, and the IJ ordered him removed from the United States as an aggravated felon convicted of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) and ineligible for relief. The Board of Immigration Appeals dismissed his appeal.
The 6th Circuit Court of Appeals applied the Supreme Court’s Chevron deference rule, deferred to the BIA’s interpretation of “sexual abuse of a minor” and upheld removal. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and find that Esquivel-Quintana’s conviction was not an aggravated felony.
Thanks for the thoughtful analysis, Gus!
I’ve always thought that both Chevron and Brand X are problematic. The Article III judiciary is appointed (for life), adequately paid, and well-staffed to decide difficult legal questions. They should do so. If they like the Executive’s interpretation of a statute, there is nothing stopping them from adopting it under “old-fashioned Skidmore deference.” That is, give it the weight that is appropriate under the circumstances. Chevron and Brand X are far, far too “formulaic.”
Best,
Paul