Esquivel-Quintana v. Sessions - SCOTUS Defines Generic Crime of "Sexual Abuse of a Minor"

 

Introduction

On May 30, 2017, the Supreme Court of the United States decided Esquivel-Quintana v. Sessions, 581 U.S. ___ (2017) [PDF version]. The case concerned a lawful permanent resident (LPR) who had been found removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) for having been convicted of an aggravated felony under section 101(a)(43)(A) of the INA (sexual abuse of a minor). The immigration charges were based on a California statutory rape conviction.

Esquivel-Quintana

In a unanimous 8-01 decision authored by Justice Clarence Thomas, the Supreme Court held that when considering a statutory rape offense that criminalizes sexual intercourse based solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” requires that the victim of the offense have been under the age of 16. This means that any statutory rape statute that criminalizes sexual intercourse with an individual between the ages of 16 or 18 — including the statute of conviction in Esquivel-Quintana — is not a categorical aggravated felony under section 101(a)(43)(A) of the INA. The Supreme Court thereby reversed the United States Court of Appeals for the Sixth Circuit, which had issued a published decision on the case in Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016) [PDF version] [see article]. By extension, the Supreme Court's decision also has the effect of reversing a precedent BIA decision issued in this same case in the Matter of Esquivel-Quintana, 26 I&N Dec. 469 (BIA 2015) [PDF version] [see article]. Because the Supreme Court found that section 101(a)(43)(A) of the INA is unambiguous, it did not address several issues broached by the Sixth Circuit relating to Chevron deference (administrative deference) and how Chevron applies to dual-application statutes (statutes that have both criminal and civil consequences).

In this article, we will review the background of Esquivel-Quintana, Justice Thomas's analysis and decision, and analyze what the decision in Esquivel-Quintana will mean going forward. To learn more about the case, please see the two article links in the previous paragraph for our articles on the BIA and Sixth Circuit decisions. However, please note that the rulings of both the BIA and Sixth Circuit have been reversed by the instant decision.

Overview of the Facts and Procedural History

The petitioner, Juan Esquivel-Quintana, a native and citizen of Mexico, was present in the United States as an alien admitted for lawful permanent residence.

In 2009, the petitioner pled no contest to violating section 261.5(c) of the California Penal Code, a statutory rape offense. The statute of conviction defined a “minor” as “a person under the age of 18 years.”

Based on Esquivel-Quintana's conviction, the Department of Homeland Security (DHS) initiated removal proceedings against him. The DHS charged that the respondent's conviction was aggravated felony sexual abuse of a minor as defined by section 101(a)(43)(A) of the INA. The DHS charged that the aggravated felony conviction rendered the respondent removable under section 237(a)(2)(A)(iii) of the INA.

The Immigration Judge found that Esquivel-Quintana was removable based on the fact that his conviction qualified as “sexual abuse of a minor” as defined in section 101(a)(43)(A) of the INA. Esquivel-Quintana then appealed to the BIA. The BIA dismissed the respondent's appeal in the Matter of Esquivel-Quintana. In so doing, the Board held that, in order for a statutory rape offense involving a victim aged 16 or 17 to qualify as sexual abuse of a minor, the statute must require a meaningful age difference between the victim and the perpetrator. Section 261.5(c) of the California Penal Code requires a three-year age difference, which the Board found to be sufficient. In understanding the BIA decision, it is important to note that the statute was analyzed under the “categorical approach,” meaning that any conviction under the statute could qualify as aggravated felony sexual abuse of a minor only if the least of the conduct that the statute criminalized would constitute sexual abuse of a minor.

After having his appeal denied by the BIA, Esquivel-Quintana appealed to the United States Court of Appeals for the Sixth Circuit. A divided three-judge panel of the Sixth Circuit denied Esquivel-Quintana's petition for review. The majority on the panel deferred to the Board's interpretation of section 101(a)(43)(A), finding that it was entitled to “Chevron deference” in accord with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version].

Use of the Categorical Approach

Citing to Mellouli v. Lynch, 575 U.S. ___, ___ (2015) (slip op., at 7) [PDF version], Justice Thomas explained that “[s]ection [237](a)(2)(A)(iii) makes aliens removable based on the nature of their convictions, not based on their action conduct.” For this reason, Justice Thomas explained that the Supreme Court must apply the “categorical approach.” Quoting from Kawashima v. Holder, 565 U.S. 478, 483 (2012) [PDF version], the Court “employ[s] a categorical approach by looking to the statute … of conviction, rather than to the specific facts underlying the crime.” Furthermore, in accord with Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007) [PDF version], the Supreme Court applied the categorical approach devised in Taylor v. United States, 495 U.S. 575 (1990) [PDF version] — which had originally been developed for criminal sentence enhancement statutes — to the INA.

The effect of the Supreme Court's use of the categorical approach is that it looks only to the language of the statute of conviction — rather than to the specific conduct of the individual convicted under the statute — to determine whether the criminal offense falls under the INA provision. Justice Thomas explained that the Court asks whether “'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) [PDF version] (quoting Duneas-Alvarez, at 186). In short, this means that, when analyzing a statute, the Supreme Court must determine if the least serious of the acts or conduct that could result in a conviction under the statute would fall under the federal definition of the crime.

Applying the Categorical Approach to the Statute of Conviction

The statute of conviction in the instant case, section 261.5(c) of the California Penal Code, criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator.” The California Penal Code defines a “minor” as a person under the age of 18.

Accordingly, under the categorical approach, Justice Thomas sought to determine whether the minimum conduct proscribed by the statute of conviction — “consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21” — would be aggravated felony sexual abuse of a minor under the INA. The categorical approach precludes consideration of the actual facts of the petitioner's crime.

Supreme Court Agrees With Petitioner's Argument

The petitioner conceded that section 101(a)(43)(A) of the INA does include some statutory rape offenses. However, the petitioner argued that, where a statutory rape offense is based solely on the relative ages of the perpetrator and the victim — which describes the statute of conviction in the instant case — the offense is only aggravated felony sexual abuse of a minor where the younger partner is under the age of 16. Because the California statutory rape offense also criminalized sexual intercourse when the victim was 17 years old but less than 18 years old, the petitioner argued that it did not categorically describe aggravated felony sexual abuse of a minor.

Writing for the Court, Justice Thomas agreed with the petitioner that, “in the context of statutory rape offenses that criminalizes sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Accordingly, because the California statute allowed for convictions where the victim was older than 16 but younger than 18, the Supreme Court agreed that it did not categorically describe aggravated felony sexual abuse of a minor. In the forthcoming sections, we will follow the reasoning in Justice Thomas's decision.

Analyzing INA Aggravated Felony Sexual Abuse of a Minor

Justice Thomas noted that, while section 101(a)(43)(A) of the INA covers sexual abuse of a minor in the immigration context, the statute does not define “sexual abuse of a minor.” Accordingly, the Supreme Court was tasked with using “the normal tools of statutory interpretation” to determine what the phrase meant.

The sexual abuse of a minor aggravated felony was added to the INA in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, sec. 321(a)(i), 110 Stat. 3009-627. The Supreme Court sought to examine how “sexual abuse of a minor” was defined in 1996.

Citing to Merriam-Websiter's Dictionary of Law 454 (1996), Justice Thomas explained that “the ordinary meaning of 'sexual abuse' included 'the engaging in sexual contact with a person who is below a specified age of giving consent because of age or mental or physical incapacity.” The definition also specified that the victim must be a “minor.” Justice Thomas noted that the INA provision focuses on “age,” rather than on “mental or physical incapacity.” Accordingly, it follows that the sexual acts that would fall under the INA provision must be “based at least in part on the age of the victim.”

Justice Thomas noted that statutory rape laws fall under the generic category of sexual abuse crimes defined above. Generally, in order to be convicted of statutory rape, an individual must be proven to have engaged in sexual intercourse with a younger person below a specified age known as the “age of consent” (meaning, the age at which one is considered to be competent to consent to sexual intercourse.” Certain statutory rape statutes, such as the statute of conviction in the instant case, also require in some circumstances that a specified age difference exist between the sexual partners.

Justice Thomas noted that different jurisdictions specify different ages of consent. However, citing to Bryan Garner's “A Dictionary of Legal Usage” (2d ed. 1995) and “Black's Law Dictionary” (10th ed. 2014), he found that there is extensive evidence that the “generic” age of consent in 1996 was — as it remains today - 16.

Supreme Court Finds Government's Argument Unpersuasive

The Government relied on a different dictionary than did Justice Thomas in arguing that the generic age of consent in 1996 was not 16. In support of this argument, the government cited to an earlier edition of Black's Law Dictionary 1375 (6th ed. 1990), which had “defined '[s]exual abuse' as '[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,' and defined '[m]inor' as '[a]n infant or person who is under the age of legal competence,' which in 'most states' was '18.'” Based on this definition, the Government argued that generic sexual abuse of a minor defines conduct that is illegal, involves sexual activity, and is directed at a person under the age of 18.

The Supreme Court found the Government's argument unpersuasive. First, Justice Thomas noted that the Government's own posited definition of age of consent was not consistent with the dictionary definition to which it cited. That provision was defining sexual abuse “by a parent, guardian, relative, or acquaintance.” Thus, , the dictionary was specifically describing sexual offenses against individuals under the age of 18 where a “special relationship” between the perpetrator and the victim exists. Yet, the Government extracted from the definition a general age of consent even for instances where no such special relationship existed. Justice Thomas noted that such “special relationship” offenses often entail a different age requirement than the general age of consent. Secondly, Justice Thomas noted that the Government's definition referred to “legal competence.” He explained that “legal competence,” meaning the age a person is capable to, for example, agree to a contract, is a different concept than “age of consent,” which denotes the age at which an individual is competent to agree to sexual intercourse.

In a second point, Justice Thomas took the position that the Government sought to define the generic offense of sexual abuse of a minor “as whatever is illegal under the particular law of the State where the defendant was convicted.” He took the position that the effect of this would be to conclude that there is, in fact, no generic definition of sexual abuse of a minor at all.

Evidence Supporting Petitioner's Position in the United States Code

Justice Thomas noted that the portions of the INA surrounding section 101(a)(43)(A) guided the Court's interpretation of “sexual abuse of a minor.”

First, he noted that section 101(a)(43)(A) is an aggravated felony. Citing to Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010) [PDF version], Justice Thomas explained that an aggravated offense is an offense that is made worse or more serious by certain circumstances. Additionally, Justice Thomas noted that “sexual abuse of a minor” in the INA is listed “in the same subparagraph as 'murder' and 'rape.'” He explained that this suggests that section 101(a)(43)(A) “encompasses only especially egregious felonies.”

Next, Justice Thomas moved to examine 18 U.S.C. 2243, a federal statute that criminalizes “[s]exual abuse of a minor or ward.” The criminal provision set the age of consent as 16 in the context of statutory rape offenses predicated only on the age of the participants in a sexual act. He further noted that this is the only instance in the United States Code where the phrase “sexual abuse of a minor” is defined. As 18 U.S.C. 2243 was originally codified in 1986, it covered victims between the ages of 12 and 16 where the perpetrator was at least four years older than the victim. In 1996, Congress amended 18 U.S.C. 2243 to also cover victims under the age of 12 as well as those from 12 to 16. The 1996 addition is noteworthy in that Congress added it “in the same omnibus bill that added sexual abuse of a minor to the INA.” Justice Thomas took the position that this suggested that Congress understood the phrase “sexual abuse of a minor” to cover victims under the age of 16. In footnote 2 of Esquivel-Quintana, Justice Thomas noted that Congress subsequently amended section 2243(a) to revert to its pre-1996 language, while taking the position that the amendment does not change Congress' understanding of the term “minor” in 1996.

Justice Thomas noted that the Supreme Court was not importing the definition found in 18 U.S.C. 2243(a) into the INA “wholesale.” First, he noted that the INA does not cross reference 18 U.S.C. 2243(a). Second, Justice Thomas noted that the 4-year age difference specified in 18 U.S.C. 2243(a) “would categorically exclude the statutory rape laws of most States.” For this reason, the Supreme Court relied on 18 U.S.C. 2243(a) solely “for evidence of the meaning of sexual abuse of a minor.”

Evidence Supporting Petitioner's in State Statutes

The decision next moved to assess state criminal codes for additional evidence about the generic meaning of “sexual abuse of a minor.” Justice Thomas cited to Taylor, 495 U.S. at 598, in explaining that this is a common method utilized in employing the categorical approach.

At the time “sexual abuse of a minor” was added to the INA:

  • 31 States and the District of Columbia set the age of consent for statutory rape offenses predicated only on the age of the participants at 16;
  • One State set the age of consent for such offenses at 14;
  • Two States set the age of consent for such offenses at 15;
  • Six States set the age of consent for such offenses at 17; and
  • Ten states, including California, set the age of consent for such offenses at 18.

Justice Thomas noted that the above analysis shows that at the time “sexual abuse of a minor” was added to the INA, a majority of states set the age of consent for statutory rape offenses predicated only on the age of the participants at 16. Furthermore, counting the District of Columbia among the states, 34 of 51, or two-thirds, had an age of consent for such offenses at 16, 15, or 14.

Justice Thomas noted that many jurisdictions that had higher ages of consent and/or that specified an age differential also included “an element apart from the age of the participants.” For example, Justice Thomas noted that it was true of both jurisdictions that in 1996 had offenses titled “sexual abuse of a minor.” One of the two, Alaska Stat. sec. 11.41.438 (1996), set an age of consent of 16 for a statutory rape offense predicated only on the age of the participants, but an age of consent of 18 in cases where “[t]he offender occupie[d] a position of authority in relation to the victim.” Justice Thomas added that the same is true of four of five jurisdictions that have offenses titled “sexual abuse of a minor” as of the publication of the instant decision.

Justice Thomas thus concluded that a study of the state statutes “points to the same generic definition as dictionaries and federal law…”

No Decision on Requisite Age Differential

The Supreme Court declined to address whether an offense must have a requisite age differential between the perpetrator and the victim for it to fall under section 101(a)(43)(A) of the INA (note that the Court explicitly declined to incorporate the 4-year age difference found in 18 U.S.C. 2243(a)). The Court did not rule on this issue because it was not necessary to resolve that the California statute of conviction did not categorically define “sexual abuse of a minor” under the INA.

No Decision on Chevron Deference and the Rule of Lenity

The petitioner and the Government debated in briefs whether the BIA's interpretation of “sexual abuse of a minor” was entitled to Chevron deference. The petitioner argued that any ambiguity in meaning should be resolved in his favor due to the rule of lenity. This was a central point of contention in the Sixth Circuit decision [see article].

However, the Supreme Court declined to address whether Chevron or the rule of lenity should receive priority. The reason for this is that the Supreme Court found that the statute “unambiguously forecloses the Boards interpretation.” For this reason, neither Chevron nor the rule of lenity applied to the case.

Ruling

The Supreme Court held that “in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of 'sexual abuse of a minor' under [section 101(a)(43)(A)] of the INA] requires the age of the victim to be less than 16.” Accordingly, the Supreme Court reversed the judgment of the Sixth Circuit because the California statute under which the respondent had been convicted also allowed for convictions where the victim was older than 16 but younger than 18.

Conclusion

The Supreme Court decision in Esquivel-Quintana v. Sessions is significant in what it does address, but it is also noteworthy in that it left many crucial questions unresolved for another day.

The Supreme Court decision reversed a precedent decision of the Sixth Circuit in the Matter of Esquivel-Quintana. Furthermore, the Board's precedent decision, as it relates to its interpretation of section 101(a)(43)(A), is also contrary to the Supreme Court decision. For this reason, the Board can no longer apply its reading of 101(a)(43)(A).

The Esquivel-Quintana decision will stand to benefit aliens charged under section 101(a)(43)(A) in certain cases. Namely, any statutory rape statute based solely on the age of the perpetrator and victim cannot fall under section 101(a)(43)(A) if it (1) includes victims over the age of 16 and (2) does so without being divisible with regard to the age of the victim. It is notable that the case arose from California due to the large number of noncitizens in the State. However, it is important to note that the Supreme Court based its decision in part on the fact that the majority of states had set the age of consent at 16. This fact will likely render the decision inapplicable in many cases where an alien is charged with having committed an aggravated felony under section 101(a)(43)(A) for a statutory rape offense.

There are a couple of important questions that the Supreme Court left unresolved. First, it did not resolve if there is a required age difference between the perpetrator and victim in a statutory rape offense or, if so, what that age difference would be. It explicitly declined to adopt the four-year age difference in 18 U.S.C. 2223(a). In the Matter of Esquivel-Quintana, the Board had set the age difference at a minimum of three years. It remains to be seen how this issue is handled going forward, considering the lack of guidance in the Supreme Court decision.

The Supreme Court also did not address when, or if, statutory rape offenses with a higher age of consent than 16 that also involve another element (such as the perpetrator being in a position of authority over the victim) would fall under section 101(a)(43)(A).

There were interesting issues regarding the applicability of Chevron deference to dual-application statutes that were debated in the Sixth Circuit decision. The Supreme Court did not rule on these issues because it found that section 101(a)(43)(A) was unambiguous and that, as a result, neither Chevron nor the rule of lenity applied. The potential effects of resolving the debate in the Sixth Circuit would be significant for immigration law going forward. It is well worth watching to see if the Supreme Court takes a case where it can address the proper mode of deference and interpretation for dual application statutes.

Finally, the decision is noteworthy in that the Supreme Court again applied the categorical approach — as devised in Taylor — to the INA. We recently discussed an interesting BIA concurring opinion addressing the applicability of the Taylor framework to immigration cases [see article]. For now at least, the Supreme Court is continuing to apply the framework from Taylor to civil immigration cases.

____________________

  1. Justice Neil Gorsuch took no part in the consideration or decision of the case. This is because he was not yet on the bench was the case was argued.