- Introduction: Esquivel-Quintana v. Lynch
- Decision of the Court in Esquivel-Quintana v. Lynch: Judge Danny Julian Boggs of the Sixth Circuit
- Concurring-in-Part and Dissenting-in-Part: Judge Jeffrey Sutton
- Conclusion: Esquivel-Quintana v. Lynch
On January 15, 2016, issued its decision in Esquivel-Quintana v. Lynch, No. 15-3101, (6th Cir. 2015) [PDF version], which followed the Board of Immigration Appeals' (BIA's) precedent decision in the Matter of Esquivel-Quintana, 26 I&N Dec. 469, 477 (BIA 2015) [PDF version]. The Matter of Esquivel-Quintana held that a state statute that criminalizes statutory rape and that includes 16- and 17-year olds as victims is categorically an immigration aggravated felony for “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) so long as the statute requires a “meaningful age difference” between the victim and perpetrator. The Sixth Circuit upheld the Matter of Esquivel-Quintana in accordance on the Chevron test. This requires courts to defer to an administrative agency's interpretation of an ambiguous statute that it is charged with administering so long as that interpretation is reasonable. However, a third judge on the three-judge panel dissented in part with regard to the majority's decision to apply Chevron to the statute because it has both criminal and civil applications. In this article, we will explore the two opinions from Esquivel-Quintana v. Lynch.
If you have not already, please first read our article about the Matter of Esquivel-Quintana for a discussion of the BIA decision in question before the Sixth Circuit [full article].
Rejecting the Petitioner's Arguments Against Applying Chevron
Because the Matter of Esquivel-Quintana was a precedential BIA decision, the Sixth Circuit first sought to determine whether Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version] applied. Chevron requires a court to first ascertain whether the statute is ambiguous, and if so, to then determine whether the administrative agency's (in this case, the BIA's) interpretation of the statute is reasonable.
In deciding to apply Chevron, the decision rejected the petitioner's arguments1 that Chevron should not apply.
Chevron Prevents Consideration of the Rule of Lenity
The “rule of lenity” is the principle that “when a criminal statute is ambiguous, that ambiguity must be resolved in the defendant's favor.” However, the rule of lenity is a concept from criminal law, whereas immigration proceedings are “civil in nature.” The petitioner nevertheless argued that the rule of lenity should apply, rather than Chevron, because “the definition of 'sexual abuse of a minor' has criminal applications.” In short, the statute is a “dual-application” statute in that it has both civil and criminal applications.
The Sixth Circuit noted that there are compelling reasons to apply the rule of lenity in cases involving statutes with both civil and criminal applications. Citing Judge Jeffrey Sutton's concurrence in Carter v. Welles-Bowen Reality, Inc., 736 F.3d 722, 729-36 (6th Cir. 2013) [PDF version], the Sixth Circuit noted that (1) statutory terms should not have different meanings in different cases and (2) ambiguous statutes should be construed in favor of defendants in accordance with the rule of lenity. Furthermore, with respect to the Chevron issue, the Sixth Circuit quoted from the Supreme Court in Abramski v. United States, 134 S.Ct. 2259, 2274 (2015): “criminal laws are for the courts, not for the Government, to construe.”
However, the Sixth Circuit held that it was bound by the 1995 Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703-04 (1995) [PDF version], which stated in a footnote: “[w]e have 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.”
However, the Sixth Circuit noted that the Supreme Court has subsequently suggested that the rule of lenity may apply to such cases. It cited as an example Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) [PDF version]. Leocal, like Esquivel-Quintana, concerned the interpretation of a criminal statute in the context of the INA's provisions for immigration aggravated felonies [see our full article about Leocal v. Ashcroft]. Quoting from the case:
“Although here we deal with § 16 [a criminal statute] in the deportation context, § 16 is a criminal statute, and it has both criminal and noncriminal applications. Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”
However, the Sixth Circuit noted that while the Supreme Court has moved to distance itself from Babbit in subsequent cases, “we do not read dicta in Leocal and subsequent cases as overruling Babbit, or requiring that we apply the rule of lenity here…”
The Sixth Circuit noted that the language of section 101(a)(43)(A) of the INA as ambiguous. Notably, Congress did not “specify a particular age of majority or age differential for statutory rape.” Furthermore, Congress did not explicitly define “sexual abuse of a minor.”
The BIA stated that “nothing forbids the Board's interpretation” of the term “sexual abuse of a minor” as developed in the Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA 1999) [PDF version] and the Matter of V-F-D-, 23 I&N Dec. 859, 862 (BIA 2006) [PDF version]. In those cases, which we discuss in more detail in our article about the Matter of Esquivel-Quintana, the BIA referenced 18 U.S.C. 3509(a)(8) in developing a definition of “sexual abuse,” and 18 U.S.C. 3509(a)(2) for defining a “minor” as being “under the age of 18.”
The petitioner suggested 18 U.S.C. 2243(a) as the proper definition of a “minor.” That statute is a federal criminal statute against engaging in sexual criminal acts with a minor between the ages of 12 and 16, and requires the abuser to be at least 4 years older than the victim. However, the Sixth Circuit noted that 18 U.S.C. 2243(a) was an unrelated provision that predated section 101(a)(43)(A) of the INA by ten years.2 This, it noted that had Congress intended to use it as a definition for statutory rape offenses, it could have easily incorporated it into the definition of “sexual abuse of a minor.” Accordingly, the Sixth Circuit joined the Second, Third, and Seventh Circuits in rejecting the argument that “sexual abuse of a minor” is limited to the ages listed in section 2243(a) of the INA.
Because the Sixth Circuit found that the statute was ambiguous and the BIA's reading of the statute was reasonable, it followed the BIA's reading and denied the respondent's appeal.
Chevron is Not Applicable to Dual-Application Statutes
Judge Sutton concurred with the majority that Chevron does not apply to criminal statutes. Specifically with regard to the rule of lenity, Judge Sutton noted that applying Chevron to criminal statutes “would leave no room for the rule of lenity.”
However, Judge Sutton disagreed with the majority that Chevron may apply to dual-application statutes, that is, statutes that have both civil and criminal applications. Citing from his decision in Carter v. Welles-Bowen Reality Inc., Judge Sutton noted that statutes are not “charmeleon[s]” and must have a single meaning. Citing many of the same cases that the majority cited as questioning the application of Chevron to dual-application statutes (including Leocal), Judge Sutton cited the cases as examples of the Supreme Court holding that the criminal-law construction of the statute (including the rule of lenity) “prevails over the civil law construction of it.” Furthermore, “When a statute has twin applications, the search for the least common denominator leads to the least liberty-infringing interpretation.”
Ambiguity of “Sexual Abuse of a Minor” and Application of the Rule of Lenity
With regard to section 101(a)(43)(A) of the INA, Judge Sutton noted that the single-interpretation rule must apply because the statute has dual applications in terms of removal (civil)3 and increasing the maximum prison term for illegal reentry into the United States (criminal).4
With regard to the California statute in question, Judge Sutton noted that circuit courts have reached different conclusions with regard to whether it falls under section 101(a)(43)(A).5 Furthermore, Judge Sutton noted that the concept of “sexual abuse of a minor” in the statutory rape context is ambiguous in the federal criminal code. For example, Judge Sutton noted that “child” and “minor” are often used interchangeably, and he referenced the different ages provided in 18 U.S.C. 2243(a) and 18 U.S.C. 3509(a)(2), (8).
The BIA's interpretation of “sexual abuse of a minor” in the context of statutory rape defers to the age which an individual state sets as the age of consent (so long as the age does not exceed 18) in classifying the statute as categorically “sexual abuse of a minor” under the INA. Judge Sutton noted that states use different principles to set the age of consent, generally between the ages of 16 and 18, and therefore “making the phrase [sexual abuse of a minor] ambiguous and making this a classic occasion for applying the rule of lenity.” He stated that the phrase “sexual abuse of a minor” may or may not include convictions under the state statute that the petitioner was convicted under.
Babbitt Does not Require the Application of Chevron
Judge Sutton disagreed with the majority that Babbitt requires lower courts to apply Chevron to dual-application statutes. Firstly, Judge Sutton argued that Babbitt only applies to “facial” challenges, “the sorts of claims that raise arguments-say that the regulation exceeded the agency's authority and thus was unenforceable in all its applications-that have no connection to the rule of lenity.” Furthermore, as did the majority, Judge Sutton cited subsequent Supreme Court decisions (including Leocal) that he believes do not support the view that the Supreme Court meant for Babbitt to preclude the use of the rule of lenity to dual-application statutes.
Main Point: Chevron Inapplicable to Dual-Application Statutes
Judge Sutton noted that his primary point was that “Chevron has no role to play in construing [dual-application] statutes.” He stated that “[i]n some settings … the [Supreme] Court simply will apply the normal rules of construction unaided by a zero-sum default rule, and will look to the rule of lenity only in the kinds of interpretive disputes that require it.”
Judge Sutton cited Abramski's in noting that the Supreme Court has held that criminal statutes are for courts to construe, not agencies, and that dual-application statutes should be accordingly exempted from Chevron. Finally, Judge Sutton stated: “I would honor that imperative here and reject the idea that Congress can end-run this principle by giving a criminal statute a civil application.”
The imminent consequence of Esquivel-Quintana v. Lynch is that the Sixth Circuit has decided to follow the BIA's interpretation of “sexual abuse of a minor” with regard to statutory rape statutes set in the Matter of Esquivel-Quintana. It joins multiple other circuits, with only the Ninth disagreeing, in following the BIA's broad reading of “sexual abuse of a minor” to encompass statutory rape statutes that include 16- and 17-year olds as victims.
Judge Sutton's dissent brings up interesting questions about administrative law in general. As applied to immigration law, adopting Judge Sutton's position would mean that BIA decisions regarding statutes that have both civil and criminal applications would not be entitled to Chevron deference from courts. As of now, the issue is unsettled; however both Judge Sutton and other legal scholars6 expect that the Supreme Court may weigh in on the issue in the near future.
- The petitioner also argued under Taylor v. United States, 495 U.S. 575 (1990), the Sixth Circuit should ignore Chevron and instead adopt a generic definition of “sexual abuse of a minor.” However, the Sixth Circuit rejected this line of reasoning because the Supreme Court's decision to adopt a generic definition of “burglary” in Taylor was prompted by the structure and legislative history of the relevant statutes in that case, whereas the phrase “sexual abuse of a minor” was first added to the INA in 1996 and has not been amended since.
- The Sixth Circuit also noted that it was crafted with 2243(c) in mind, which covered victims under the age of 12.
- INA § 236(a)(2)(A)(iii); 240b(a)(3)
- INA § 276(b)(2)
- Contreras v. Holder, 754 F.3d 286, 294-96 (5th Cir. 2014) [held that it is an immigration aggravated felony]; Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1157 n.7, 1158-60 (9th Cir. 2008) [held that It is not]; Velasco-Giron v. Holder, 773 F.3d 774, 776-78 (7th Cir. 2014) [held that it is uncertain]
- See for example: Adler, Jonathan, “Should Chevron deference apply to agency interpretations of statutes with criminal applications?” Volokh Conspiracy, (Jan. 15, 2015), available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/15/should-chevron-deference-apply-to-agency-interpretations-of-statutes-with-criminal-applications/