Does Sex With Younger Girlfriend Require Deportation?

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By Melissa Heelan Stanzione

The U.S. Supreme Court considered whether a 20-year-old having consensual sex with his 16-year-old girlfriend could constitute a crime that is grounds for deportation, during oral argument Feb. 27 ( Esquivel-Quintana v. Sessions , U.S., No. 16-54 , argued 2/27/17 ).

Here, Juan Esquivel-Quintana, a lawful permanent resident, was ordered deported after he was convicted under California law for sexual abuse of a minor. The conviction was based on consensual sex with his girlfriend, who was more than three years younger.

That conduct is legal in 43 states and the District of Columbia.

The Board of Immigration Appeals held that Esquivel-Quintana’s conviction also constituted “sexual abuse of a minor” under immigration law, which is an “aggravated felony” and grounds for deportation.

The case comes amid heightened tensions nationwide over immigration policy. Although the court’s decision will immediately determine whether Esquivel-Quintana should be deported for an act that isn’t a crime in most states, it could have broader implications for other immigrants. The decision could affect how many people are deported, depending on how the court rules.

Outlier Law

California’s statute is an “outlier” and the Supreme Court should rule that 16 is the cut-off age for a minor, Jeffrey L. Fisher, counsel for Esquivel-Quintana, said.

Fisher is a co-director of Stanford Law School’s Supreme Court Litigation Clinic in Stanford, Calif.

When there’s an ambiguity concerning a generic definition, as in this case, the court should do a “multi-jurisdictional” survey of other states’ laws to resolve it, Fisher said.

Even if you want “to ignore all that,” just pick up Black’s Law Dictionary, which defines the age of consent for illegal sexual activity as 16, he said.

“You have an extraordinary case here where the government is trying to deport somebody for committing something that isn’t even a crime” under federal law and the vast majority of states’ laws, he said.

Chevron Off-Limits?

“So what do we do with Chevron” if we think the the definition of “sexual abuse of a minor” is ambiguous? Justice Sonia Sotomayor asked.

Under the Chevron doctrine, a federal court will defer to a federal agency’s reasonable interpretation of an ambiguous law.

Chevron applies to purely civil statutes and, because of the law’s criminal consequences, the Supreme Court should make a “carve out,” a small exception to Chevron, Fisher said.

Where “a statute has criminal applications and Congress has not delegated to the agency the authority to create crimes through its own regulatory process, Chevron is off limits,” Fisher said.

To resolve the ambiguity the court should apply a canon of statutory construction, employed in immigration law contexts, saying that ambiguous deportation statutes should be resolved in favor of the deportee, he said.

Deference Due

But Allon Kedem argued for the Department of Justice that the BIA’s exercise of its power to administer federal immigration law was reasonable, and should be accorded deference.

Drawing “a line is very difficult” Kedem said, referring to the problem of finding a generic definition of sexual abuse of a minor.

It’s going to be arbitrary “no matter what,” so the court should defer to the BIA because “administrative agencies are actually quite good at drawing these sorts of lines,” he said.

What do you rely on for your definition of sexual abuse of a minor? Justice Elena Kagan asked Kedem.

This is “an ordinary case of statutory interpretation,” Kedem said.

We rely on traditional tools of statutory interpretation: dictionary definitions and legislative history, he said.

Of course, agencies can’t read the dictionary or interpret legislative history better than the courts, but they bring “practical wisdom and experience,” Kedem said.

We should defer to the BIA’s decision here because there is “so much variation among the different State offenses that are involved here, it made sense to apply an incremental approach to engage in case-by-case adjudication,” he said.

Why should the BIA be allowed to make that determination? Justice Anthony Kennedy asked.

Federal law authorizes the BIA to to “render controlling interpretations” of the Immigration and Nationality Act within removal proceedings, Kedem said.

If the agency’s decision is “too strenuous or too lenient,” it can be held accountable, he said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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