The Trump administration is now six months old, and the President appears to be trying to make good on campaign promises to remove "criminal aliens" from the United States, especially those originally from Mexico. The outcome of a recent U.S. Supreme Court case, Esquivel-Quintana v. Sessions, has implications for immigrants who have been convicted of what might have been considered sexual abuse of a minor.
In 2009, Juan Esquivel-Quintana, a 21 year old lawful permanent resident of the United States, pled no contest in California to “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” under Cal. Penal Code Ann. §261.5(c). For this particular offense, California defines “minor” as “a person under the age of 18 years.”
Mr. Esquivel-Quintana’s plea and conviction was a "safe plea" and would not subject him to deportation under the Immigration and Nationality Act (INA) §101(a)(43)(A) “sexual abuse of a minor” aggravated felony ground, at least not while he remained within the jurisdiction of the U.S. Court of Appeals for the 9th Circuit, which includes Alaska, Arizona, California, and Hawaii. The Ninth Circuit had previously held that Cal. Penal Code §261.5(c) is not categorically sexual abuse of a minor based on the federal definition of “sexual abuse of a minor” in 18 U.S.C. §2243, which applies only when the younger participant is under age 16. See Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc).
However, after completing his 90 day sentence, Mr. Esquivel-Quintana moved to Michigan, which falls outside the jurisdiction of the Ninth Circuit. In 2013, the Department of Homeland Security initiated removal proceedings against him. The immigration court ordered his removal from the country. Esquivel-Quintana's appeal from the removal order was denied by the Board of Immigration Appeals (BIA). The 6th Circuit Court of Appeals court upheld the removal order, deferring to the BIA's interpretation of the phrase "sexual abuse of a minor." Esquivel-Quintana's attorneys petitioned to have the case brought before the U.S. Supreme Court, where Justice Clarence Thomas wrote the decision.
Thomas framed the question facing the Supreme Court as “whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.” The Court held that such a conviction did not constitute "sexual abuse of a minor" for purposes of the INA.
The Court stated that "(t)he structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16."
The Court's analysis was on statutory grounds, stating that the California statute, if read in context, "unambiguously forecloses the (BIA's) interpretation." In so doing, the Court decided the case on narrower grounds than it might have done, making the holding less far-reaching than it might have otherwise been. Even so, this case is an encouraging contrast to the level of deference that has historically been shown to the BIA.
How does the ruling in Esquivel-Quintana affect the removal of other immigrants who may have been convicted under similar circumstances?
If you are currently in removal proceedings, you or your immigration attorney should call the Esquivel-Quintana decision to the attention of the BIA or IJ. This may be done by filing a notice of supplemental authority or, in some cases, a motion to terminate. If your case is on appeal at the BIA and might be affected by Esquivel-Quintana, your attorney may want to file a motion to remand while the appeal is still pending. This will preserve your right to later file a motion to reconsider and reopen your case.
If you have a final order for removal, your attorney may file a petition for review or a motion to remand. In some cases, if a petition for review has been denied a motion for rehearing is still a possibility. Whether or not you have sought judicial review of your case, you may want to discuss with your attorney the possibility of an administrative motion to reconsider. There are some potential risks inherent with such a motion, particularly if the motion was not timely filed.
In any case, if your circumstances could be affected by the holding in Esquivel-Quintana, you are advised to consult an experienced Maryland immigration attorney as soon as possible to avoid missing an important court or administrative deadline.
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