Esquivel-Quintana v. Lynch

810 F.3d 1019

Juan ESQUIVEL–QUINTANA, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 15–3101.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 14, 2015.

Decided and Filed: Jan. 15, 2016.

Rehearing En Banc Denied April 12, 2016.

ARGUED:Michael Carlin, Law Office of Michael Carlin PLLC, Ann Arbor, Michigan, for Petitioner. Yedidya Cohen, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Michael Carlin, Law Office of Michael Carlin PLLC, Ann Arbor, Michigan, for Petitioner. Yedidya Cohen, United States Department of Justice, Washington, D.C., for Respondent. Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, Charles Roth, National Immigrant Justice Center, Chicago, Illinois, Brian J. Murray, Jones Day, Chicago, Illinois, Rajeev Muttreja, Jones Day, New York, New York, for Amici Curiae.

Before: BOGGS, SUTTON, and COOK, Circuit Judges.

BOGGS, J., delivered the opinion of the court in which COOK, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pp. 1027–32), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

The Immigration and Nationality Act defines "sexual abuse of a minor" as an aggravated felony.

8 U.S.C. § 1101(a)(43)(A). Aliens convicted of an aggravated felony face numerous criminal and civil consequences, including removal from the United States. Id. § 1227(a)(2)(A)(iii). In this case, we consider whether "sexual abuse of a minor" includes convictions under California Penal Code § 261.5(c) for unlawful sexual intercourse with a minor. Because the Board of Immigration Appeals permissibly interpreted "sexual abuse of a minor" as including convictions under section 261.5(c), we defer to the Board's interpretation and deny Esquivel–Quintana's petition.

I

Juan Esquivel–Quintana was admitted to the United States as a lawful permanent resident in 2000. In 2009, he pleaded guilty to unlawful sexual intercourse with a minor in California. The statute under which he was convicted provides that "[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony." Cal.Penal Code § 261.5(c). Unlawful sexual intercourse is defined as "an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor," and a minor is "a person under the age of 18." Id. § 261.5(a). So, a twenty-year-old who has sex with a seventeen-year-old or a fifteen-year-old who has sex with a twelve-year-old could be convicted under the statute.

Subsequently, Esquivel–Quintana moved to Michigan. While he was in Michigan, the Department of Homeland Security initiated removal proceedings based on 8 U.S.C. § 1227(a)(2)(A)(iii), which states that an alien can be removed if he is convicted of an aggravated felony such as "sexual abuse of a minor," id. § 1101(a)(43)(A). An immigration judge ruled that Esquivel–Quintana's conviction under section 261.5(c) constituted "sexual abuse of a minor" and ordered him removed to Mexico. Esquivel–Quintana appealed.

A three-member panel of the Board of Immigration Appeals ruled against Esquivel–Quintana, concluding that "sexual abuse of a minor" includes convictions under section 261.5(c). In re Esquivel–Quintana, 26 I. & N. Dec. 469, 477 (B.I.A.2015). First, the Board stated that it would determine whether convictions under section 261.5(c) categorically constitute "sexual abuse of a minor" without looking at the specific facts of the case, such as Esquivel–Quintana's age or his victim's. Id. at 472. The Board did so based on Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which call for a categorical approach to assessing prior convictions in sentencing under the Armed Career Criminal Act. The Board went on to conclude that "sexual abuse of a minor" categorically encompassed convictions under section 261.5(c). The Board stated that "in the context of State statutory rape offenses, a statute that includes 16– or 17–year–olds must also contain a meaningful age differential to constitute ‘sexual abuse of a minor.’ " Esquivel–Quintana, 26 I. & N. Dec. at 475. The Board did not specify exactly what constitutes a "meaningful" age differential, but held that the age differential in California's statute—which requires an age gap of more than three years—was meaningful. Esquivel–Quintana now petitions for review of the Board's decision.

II

Chevron supplies the appropriate framework for reviewing the Board's interpretation of "sexual abuse of a minor."

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Supreme Court and Sixth Circuit have repeatedly held that Chevron deference applies to the Board's interpretations of immigration laws. See Scialabba v. Cuellar de Osorio, ––– U.S. ––––, 134 S.Ct. 2191, 2203, 189 L.Ed.2d 98 (2014) (plurality opinion); id. at 2214 (Roberts, C.J., concurring in the judgment); Negusie v. Holder, 555 U.S. 511, 516–17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) ; INS v. Aguirre–Aguirre, 526 U.S. 415, 424–25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ; Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir.2010) ; Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.2006). Several of our sister circuits have specifically applied Chevron in cases involving the Board's interpretation of "sexual abuse of a minor." See Velasco–Giron v. Holder, 773 F.3d 774, 776 (7th Cir.2014) ; Restrepo v. Attorney Gen. of the U.S., 617 F.3d 787, 796 (3d Cir.2010) ; Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir.2001).

Two circuits have reached a different conclusion. Amos v. Lynch, 790 F.3d 512, 518–20 (4th Cir.2015) ; Estrada–Espinoza v. Mukasey, 546 F.3d 1147, 1156–58 (9th Cir.2008) (en banc). But those decisions offer little guidance here. Neither Amos nor Estrada–Espinoza involved a published, precedential BIA opinion interpreting the relevant state statute. Amos, 790 F.3d at 518 ("However, the principles of Chevron deference are not applicable to the Board's decision in Amos's case because, although issued by a three-judge panel of the BIA, it was an unpublished decision that does not carry precedential weight."); Estrada–Espinoza, 546 F.3d at 1157 (noting that the BIA's decision was a "single-judge, unpublished, non-precedential" decision). Here, conversely, we owe the BIA's precedential decision Chevron deference. See Lockhart v. Napolitano, 573 F.3d 251, 262 (6th Cir.2009). Although Amos and Estrada–Espinoza could be read to suggest that courts may forego Chevron deference to published BIA precedents solely because they establish broad standards, that proposition is, as the Seventh Circuit recently noted, at odds with basic black-letter administrative law. Velasco–Giron, 773 F.3d at 779 ; see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974) ; SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). There is not "a single case in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency's substantive field." City of Arlington v. FCC, –––U.S. ––––, 133 S.Ct. 1863, 1874, ––– L.Ed.2d –––– (2013).

Generic–Definition Argument. Esquivel–Quintana is misguided in relying on Taylor for the proposition that we must ignore Chevron and create our own definition of "sexual abuse of a minor." Taylor involved the Armed Career Criminal Act, not the Immigration and Nationality Act. While it is true that both statutes attach consequences to certain prior convictions, there are important differences as well.

The generic-definition approach established in Taylor with respect to the crime of burglary is intimately connected with the Armed Career Criminal Act's legislative history. 495 U.S. at 581–87, 110 S.Ct. 2143. The Taylor Court began by discussing the first version of the Armed Career Criminal Act, passed in 1984, which specifically defined "burglary" as "any felony consisting of entering or remaining surreptitiously within a building that is property of another with intent to engage in conduct constituting a Federal or State offense." Id. at 581, 110 S.Ct. 2143. The Court then recounted how Congress deleted this definition, quoting extensively from committee hearing testimony and statements by members of Congress. Id. at 582–87, 110 S.Ct. 2143. The Court concluded that "[t]he legislative history as a whole suggests that the deletion of the 1984 definition of burglary may have been an inadvertent casualty of a complex drafting process," and on that basis adopted a generic definition of burglary. Id. at 589–90, 110 S.Ct. 2143. Given Taylor's intimate connection with the Armed Career Criminal Act's legislative history, we decline to read Taylor as requiring us to adopt an identical approach to interpreting the phrase "sexual abuse of a minor," which was added to the Immigration and Nationality Act in 1996. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, 110 Stat. 3009 –546, 3009–627.

Rule of Lenity. Esquivel–Quintana argues that we should apply the rule of lenity and construe "sexual abuse of a minor" in his favor. According to the rule of lenity, when a criminal statute is ambiguous, that ambiguity must be resolved in the defendant's favor. While this case is civil in nature, Esquivel–Quintana contends that we should still apply the rule of lenity because the definition of "sexual abuse of a minor" has criminal applications.

The phrase "sexual abuse of a minor" is listed in 8 U.S.C. § 1101(a)(43)(A) as one of many crimes that constitute an aggravated felony. In addition to serving as a basis for removal, id. § 1227(a)(2)(A)(iii), an aggravated-felony...