by Mike Carlin
Should a lawful permanent resident of the United States be deported as a result of a conviction for conduct that is perfectly legal in 43 states, the District of Columbia, and under federal law?
We think not.
I first met Juan Esquivel Quintana in 2013, just after an immigration judge in Detroit had ordered his removal from the United States. A permanent resident since he was 12 years old, Juan was now in a jail cell. The judge concluded that Juan’s conviction under California Penal Code 261.5(c) made him an “aggravated felon” for purposes of immigration law. A non-citizen convicted of an “aggravated felony” has virtually no possibility of remaining in the United States, and will be banished from the U.S. forever.
California’s law prohibits consensual sex between a person under age 18 and another person who is more than 3 years older, unless they are married. California is one of only seven states in the country that makes this conduct a crime. In the other 43 states and the District of Columbia, and under federal law, such conduct is prohibited only when the younger person is either under age 16 (federal law, 32 states, and D.C.) or age 17 (11 states).
While Juan remained in detention, in September 2013 I filed an appeal of the removal order to the Board of Immigration Appeals (BIA). Although the BIA typically decides cases involving detained persons in about 4 months, in Juan’s case they took 16 months to issue the decision. I especially admire Juan’s commitment to the case during this time. If he had given up and requested deportation at any time during this 16 months of detention, his appeal would have ended and the BIA would not have issued any decision at all. Juan would then have remained an “aggravated felon” for life.
On January 9, 2015, a three-member panel of the BIA issued a published decision, concluding that Juan’s conviction is an “aggravated felony” because it constitutes “sexual abuse of a minor,” one of the many crimes listed as an aggravated felony in the federal immigration statute. At last, Juan was able to be released from detention, although this also meant that U.S. immigration officials deported Juan to Mexico. Fortunately, however, I was able to ask the U.S. Court of Appeals for the Sixth Circuit to review the BIA’s decision, despite Juan’s deportation.
On October 14, 2015, I presented oral argument before a three-judge panel of the Sixth Circuit in Cincinnati. On January 15, 2016, the Sixth Circuit Court issued a decision upholding the BIA’s decision by a vote of 2-1. In dissent, Judge Jeffrey Sutton wrote that he would rule in favor of Juan because, in Judge Sutton’s view, the term “sexual abuse of a minor” in the list of aggravated felonies is ambiguous – it’s not clear exactly what is meant by “sexual abuse of a minor.” Under the Rule of Lenity, Judge Sutton would conclude that Juan’s conviction is not an aggravated felony.
Before appealing to the U.S. Supreme Court, I sought the assistance of prominent Supreme Court litigator Jeffrey Fisher, at Stanford Law School’s Supreme Court Litigation Clinic. Jeff agreed that the case was worthy of a petition to the Supreme Court, and we submitted our request in the summer of 2016. Although the Supreme Court generally agrees to hear fewer than 5 percent of the cases presented to it, on October 28, 2016, the Court agreed to hear Juan’s case.
The question presented to the Supreme Court is this: Under federal law, the Model Penal Code, and the laws of 43 states and the District of Columbia, consensual sexual intercourse between a 21-year-old and someone almost 18 is legal. Seven states have statutes criminalizing such conduct.
The question presented is whether a conviction under one of those seven state statutes constitutes the "aggravated felony" of "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43) (A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
On December 16, 2016, we submitted our opening brief on the merits of the case.
On December 22, the National Association of Criminal Defense Lawyers submitted an amicus brief in support. A day later, the Immigrant Defense Project, the Immigrant Legal Resource Center, and the National Immigration Project of the National Lawyers Guild submitted an amicus brief in support. The same day, the National Immigrant Justice Center and the American Immigration Lawyers Association submitted an amicus brief in support.
The Supreme Court has scheduled oral argument in our case for Monday, Feb. 27.
(Michael Carlin is an immigration attorney in Ann Arbor. An alumnus of the University of North Carolina School of Law, he previously was a staff attorney at the International Institute of Metropolitan Detroit, where he represented many clients, both in Immigration Court and at the USCIS offices in Detroit and Chicago. He has also served as an adjunct professor at Detroit Mercy Law, where he ran the Asylum Law Clinic. He can be reached at mike@mcarlinlaw.com.)
