Supreme Court Docket Holds More Immigration Cases, Including Another 'Aggravated Felony' Challenge

The hit parade of infamy keeps on coming. If anyone doubts the importance of establishing a rational policy toward immigration to the United States, they need only take a look at the cases on the plate of the Supreme Court, both during the last session and this one.

Several times in recent months I've blogged about immigration-related cases accepted by the Court; one of those was settled with a resounding victory for common sense, and the other two are teed up and ready to be heard (see here and here).

At least three more cases touching on immigration and border security are also on the Court's oral arguments docket for this term. That, if you think about it, is extraordinary considering that out of the 7,000-8,000 cases that seek review each term of the Court, only about 80 are given oral argument, and another 100 or so are dealt with summarily. The rest are rejected out of hand.

One of the three additional cases up for hearing this term involves the use of deadly force at the border, and whether the agent involved is protected by the doctrine of qualified immunity.

Another case pending review touches on whether detention for six months or more while awaiting immigration hearings automatically triggers the requirement of a bond review even if the alien is being held under "mandatory detention" provisions contained in the Immigration and Nationality Act (INA). It also concerns whether the government shoulders the burden of establishing a need for detention by "clear and convincing" evidence (vs. the burden resting with the alien to establish a right to conditional liberty pending a hearing, since the whole point of the hearing is to challenge their right to enter or be in the United States in the first place).

The third matter involves what constitutes an "aggravated felony" under the INA (as did one of the prior blog posts I refer to above, in which I discussed the Court being asked to decide whether "crime of violence" was an unconstitutionally ambiguous phrase contained in the aggravated felony statute). This time, the issue has to do with the portion of the statute specifying that "sexual abuse of a minor" is an aggravated felony for removal purposes (8 U.S.C. § 1101(a)(43)(A)).

The petitioner in the case is Juan Esquivel-Quintana, a Mexican citizen and permanent resident alien ordered removed as a convicted aggravated felon who is seeking to overturn serial decisions against him by the immigration judge, the Board of Immigration Appeals (BIA), and the federal Sixth Circuit Court of Appeals (6-CCA), all of which held that the crime of which he was convicted (sex with an underaged minor) did indeed constitute sexual abuse of a minor. A copy of the 6-CCA opinion and the relating briefs can be found at the SCOTUS blog.

A "friend of the court" brief submitted by the National Association of Criminal Defense Lawyers notes that many states do not even possess a statute similar to California's, where the conviction occurred. This is because statutory rape crimes, as such offenses are often called, can be tricky business. For instance, few prosecutors or judges, and possibly few juries, would likely be enthused to participate in a trial in which a 17-year and an 18-year old had sex, and the older one was charged. In such a circumstance, both could be accused of foolish, risky behavior of the kind that all too often results in unexpected teen pregnancies, yet few would wish to criminalize the behavior, absent special conditions such as mental or physical infirmity of one of the participants that lent the case a sinister air.

But the California statute under which Esquivel-Quintana was convicted is fairly sophisticated. It specifies 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." (Emphasis added.) As the court records reflect, the California law also makes further exceptions in the case of minors who, with the permission of their parents, are married to the "perpetrator".

Esquivel-Quintana was 21 at the time of the offense and the minor was 16; they were not married. The five-year difference in age is significant because in such a lopsided relationship, can the minor truly give meaningful informed consent? Clearly the entire system of judges and tribunals who heard the case considered this an important factor.

Esquivel-Quintana rests much of his argument against being considered an aggravated felon on the "rule of lenity" which suggests that administrative agencies don't get to interpret criminal laws. Even though the context of this case is clearly a civil deportation matter, he points to the fact that the removal rests on criminal behavior and that the phrase "sexual abuse of a minor" should not be left to immigration judges or the BIA to interpret because it has different meanings in different criminal law contexts. The Circuit Court has disagreed, and I think they have gotten this just right.

Many of the removal offenses outlined in the INA are based on criminal convictions of one sort or another. Given that these convictions emanate from a whole host of federal, state, territorial, or even local courts, it would be absolutely impossible for Congress to craft removal provisions except using phrases that are sufficiently clear, yet sufficiently broad in scope, to cover the proscribed behavior among the range of jurisdictions. Esquivel-Quintana's argument would in essence require our federal legislators to perform the impossible: Write deportation laws so microscopic in detail as to encompass all of the variations in language to be found in the laws that all of those various states, territories, counties and cities have enacted. That is the task of Sisyphus.