Tag: Esquivel-Quintana v. Sessions

⚖️BIA BLOWS OFF SUPREMES, AGAIN! — This Time On “Crime Of Child Abuse” — Judge Aaron Petty With Rare Dissent — Matter of AGULAR-BARAJAS, 28 I&N Dec. 354 (BIA 2021)

 

https://www.justice.gov/eoir/page/file/1419101/download

Matter of Jose AGUILAR-BARAJAS, Respondent

Decided July 30, 2021

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

(1) The offense of aggravated statutory rape under section 39-13-506(c) of the Tennessee Code Annotated is categorically a “crime of child abuse” within the meaning of section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).

(2) The Supreme Court’s holding that a statutory rape offense does not qualify as “sexual abuse of a minor” based solely on the age of the participants, unless it involves a victim under 16, does not affect our definition of a “crime of child abuse” in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), nor does it control whether the respondent’s statutory rape offense falls within this definition. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), distinguished.

FOR RESPONDENT: Sean Lewis, Esquire, Nashville, Tennessee

FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate Legal Advisor

BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate Immigration Judge. Concurring and Dissenting Opinion: PETTY, Appellate Immigration Judge.

HUNSUCKER, Appellate Immigration Judge [Majority Opinion]

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Key Quote From Judge Petty’s Dissent:

The Supreme Court has held that the generic age of consent is 16. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). Accordingly, absent aggravating circumstances, consensual sexual activity between an adult and a minor over 16 is not categorically “abusive.” If a statutory rape statute sweeps more broadly than the generic definition (in other words, if it sets the age of consent above 16) it cannot form the predicate offense for removability under section 237(a)(2)(E)(i) of the Act for having been convicted of a crime of child abuse. There can be no categorical “child abuse” where the criminalized conduct is not categorically abusive. Here, the respondent was convicted of violating a statute that sets the age of consent at 18. Because the Supreme Court has left us no other option, I would dismiss the DHS’s appeal and terminate the respondent’s removal proceedings.

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In the Pereira fiasco, the BIA’s unwillingness to follow the Supremes’ lead when it conflicted with their “mission” of helping out DHS enforcement (a stated objective of Jeff “Gonzo Apocalypto” Sessions) created big time practical problems that could and should have been avoided. 

🇺🇸Due Process Forever!

PWS

08-01-21

Related posts:

  1. ⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)
  2. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. 🤮👎🏽WASHPOST SLAMS BIDEN ADMINISTRATION FOR ABANDONING NEGOTIATIONS WITH FAMILIES WHO SUFFERED CHILD ABUSE BY SESSIONS & MILLER! — “Having condemned a policy that traumatized children and their parents, Mr. Biden now leads an administration fighting in court to deny recompense to those same families.”

Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948/

“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

 

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  4. ⚖️BIA BLOWS OFF SUPREMES, AGAIN! — This Time On “Crime Of Child Abuse” — Judge Aaron Petty With Rare Dissent — Matter of AGULAR-BARAJAS, 28 I&N Dec. 354 (BIA 2021)