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February 21, 2017

Argument preview: Removal of an immigrant for "sexual abuse of a minor"

Cross-posted from SCOTUSblog.

Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government's effort to remove a lawful permanent resident for a "sex crime."

The facts of the case sound like an episode of "Law and Order SVU." In 2000, Juan Esquivel-Quintana's parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person "under the age of 18 years" when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years' probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.

An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings in Michigan. In 2008, before Esquivel-Quintana's conviction, the U.S. Court of Appeals for the 9th Circuit had held en banc, in Estrada-Espinoza v. Mukasey, that a conviction under the California law in question did not constitute "sexual abuse of a minor" under the immigration laws and was not an aggravated felony. Although Esquivel-Quintana asked the immigration judge to apply the 9th Circuit's reasoning to his case, the immigration judge declined to do so, accepting the government's argument that the removal proceedings were occurring within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit - Esquivel-Quintana's new home. The immigration judge ordered Esquivel-Quintana removed from the United States. The Board of Immigration Appeals dismissed his appeal, noting that it was not bound by 9th Circuit law because the case arose in the 6th Circuit, which had not ruled on the definition of "sexual abuse of a minor" in this context.

Applying the Supreme Court's 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the "rule of lenity," a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

The question presented to the Supreme Court is whether Esquivel-Quintana's conviction constitutes an "aggravated felony" as "sexual abuse of a minor" under U.S. immigration law.

Esquivel-Quintana contends that because there is no "readily apparent" uniform definition of "sexual abuse of a minor," the court must compare the elements of the California crime against "[t]he prevailing view in the modern codes." Such a comparison, he argues, reveals that "federal law, the Model Penal Code, and the laws of 43 states consider the least of the acts criminalized under Cal. Penal Code § 261.5(c) - consensual sex between a 21-year-old and someone almost 18 - to be entirely lawful. Six of the seven remaining states deem it not sufficiently serious to be treated as 'sexual abuse.'" California is the exception.

Esquivel-Quintana goes on to assert that because the statute is not ambiguous, the BIA's determination that his conviction was an aggravated felony does not warrant Chevron deference. Even if the statute were ambiguous, he points out, in cases such as Immigration and Naturalization Service v. St. Cyr, in 2001, the court has espoused "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." Moreover, the rule of lenity also requires ambiguities in statutes with criminal applications to be narrowly construed. Finally, he maintains, the BIA's interpretation here would not be entitled to deference because it is unreasonable.

A "friend of the court" brief in support of Esquivel-Quintana submitted by the Immigrant Defense Project and two other immigrant groups takes a slightly different approach to interpreting the relevant statute. The amici argue that when there is a "readily apparent" federal definition of an offense, the Supreme Court will apply it, as it did in in Taylor v. United States, in 1990. They contend that just such a definition exists in this case: The phrase "sexual abuse of a minor" in the statute refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year "sexual abuse of a minor" was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that "readily apparent" federal definition, Esquivel-Quintana's conviction therefore would not constitute an aggravated felony requiring removal.

Defending the 6th Circuit's ruling, the federal government contends that Esquivel-Quintana's conviction is an aggravated felony under the plain language of the immigration statute or, alternatively, under the BIA's reasonable interpretation of that provision. The government first asserts that the statutory language - "sexual abuse of a minor" - clearly encompasses all crimes involving sex with minors. In light of that clear statutory language, the government maintains, the court need not engage in the kind of time-consuming surveys of state law that are found in Esquivel-Quintana's brief.

The government goes on to argue that, even if the court determines that the term "sexual abuse of a minor" is ambiguous, Chevron mandates deference to the BIA's reasonable construction of that phrase. Any canon of statutory interpretation, such as the rule of lenity or the rule that ambiguities in deportation statutes should be construed in favor of the noncitizen, only comes into play as an interpretive method of last resort. In the government's view, Chevron deference, not canons of statutory construction, carries the day in this case.

In setting a series of records for numbers of removals during President Barack Obama's first term, the government focused its removal effects on noncitizens convicted of crimes. President Donald Trump has issued an executive order that, if implemented, would expand crime-based removals. This case illustrates some of the complexities associated with reliance on state criminal convictions in federal removals, which can lead to a lack of uniformity in the application of the U.S. immigration laws. The disparities between the states in areas of criminal law frequently relied on for removal, such as state marijuana laws, are growing, and are likely to pose interpretive challenges in the future for the federal courts in criminal-removal cases. It remains to be seen whether the justices will focus on these issues during the oral argument next week.

February 17, 2017

Radio Interview on Immigration Policy and Lessons from the Past

This week I was interviewed on "Your Call," a call-in news program produced by San Francisco public radio station KALW, regarding the recent executive orders on immigration by President Donald Trump.

My interview was part of Your Call's weeklong series on immigration and refugee policies. Monday's shot, in which I participated, was titled "Immigration Policy - Lessons from the Past."

To listen, visit

February 17, 2017

Op-Eds on the Trump Administration by King Hall's Constitutional Law Faculty

King Hall faculty continue to make many media appearances and write opinion articles following the election of Donald Trump as President. Hot topics range from immigration and the environment to human rights and treason.

Here are recent op-eds by two of our Constitutional Law faculty.

"Congressional Caution Is Needed" by Alan Brownstein in U.S. News & World Report

Brownstein writes about President Trump's call to repeal the Johnson Amendment, a tax code provision prohibiting tax exempt nonprofit organizations from engaging in political campaigns for electoral candidates: ""Americans are more than political antagonists. We can see each other as people and families with far more in common with each other than the political disagreements that divide us.  To do that, we heed to have neutral spaces where we can leave partisan divisions behind us.  Charities should be places where our common humanity and the American virtues we share of generosity and service come to the fore. Houses of worship should be places where we are neither Democrats nor Republicans, but rather people joined in humanity and humility in spiritual fellowship and worship."

"Five Myths about Treason" by Carlton Larson in The Washington Post (This piece was posted online today and will appear in Sunday's print edition.)

An excerpt: "The Trump administration promised to do things differently, but the resignation of a national security adviser under a cloud of suspicion of treason was novel even by Trump standards. The political landscape is now littered with accusations of treason, not just against Trump officials but against all kinds of other political actors as well -- Hillary Clinton, Mitch McConnell, even the state of California. Treason is an ancient concept shrouded in misconceptions. Here are a few."

February 10, 2017

News Media and the Trump Executive Orders

I have been discussing the Trump executive orders in the media. In addition to news agencies like CNN, I also provided commentary to these interesting media outlets.

The Conversation -- On its website, "The Conversation" describes itself as "an independent source of news and views from the academic and research community, delivered direct to the public. Our team of professional editors works with university and research institute experts to unlock their knowledge for use by the wider public." I have contributed a few essays to The Conversation, including my latest, "History Shows Trump Will Face Legal Challenges to Detaining Immigrants." It was republished in Salon.

The Scholars' Circle - This is a weekly interview program that airs in various cities. I took part in the February 5 program on human rights laws and shutting out refugees. The link to the audio is here:

eFM - This is a radio program in Seoul, South Korea! I provided a preview of the oral argument before the Ninth Circuit. Here's the download link:

Minnesota Public Radio (MPR) - It was interesting to speak with MPR, as Minnesota is one of the states suing the Trump administration over the executive order that bans refugees and travelers from the seven predominantly Muslim nations from entering the United States.

KPFA Radio - This morning I appeared on the news program UpFront on KPFA, a community-supported radio station in Berkeley. I discussed the Ninth Circuit's ruling to continue blocking enforcement of President Trump 's travel ban. My interview shows up around the 9-minute mark.  

February 10, 2017

Habeas Petitions for Detained Immigrants

Immigration Law Clinic co-director Holly Cooper is teaching educational programs organized by the Practising Law Institute (PLI). They are "Challenging Immigration Detention with Habeas Petitions - A Basic Overview" and "Habeas Petitions for Detained Immigrants."

Here is information about the sessions:

Why You Should Attend
The U.S. Department of Homeland Security detains more than 400,000 noncitizens in civil immigration detention every year. A congressional quota mandates that Immigration and Customs Enforcement (ICE) maintain 34,000 beds daily for immigrants in detention, many in privately run detention facilities. Tens of thousands more are subject to onerous conditions of release, including high bonds and GPS tracking devices. Immigrants who are detained include asylum seekers, victims of trafficking or crimes in the United States, longtime lawful permanent residents, and others with avenues to immigration relief. Research shows that in Northern California, represented noncitizens who are released from detention are nearly three times more likely to win their immigration case as represented noncitizens who remain detained.

The writ of habeas corpus is a constitutionally-protected device by which individuals can petition a federal district court judge to remedy unlawful deprivation of liberty by government officials. Yet many immigration advocates---whose day-to-day practice is largely before administrative agencies---feel ill-equipped to enter federal court to challenge ICE and immigration court custody decisions. This training is designed to provide immigration attorneys the knowledge and tools necessary to litigate habeas petitions on behalf of detained immigrant clients.

What You Will Learn

  • When Can I File a Habeas Petition? - Overview of Immigration Custody Regimes and Corresponding Habeas Opportunities
  • What Are My Arguments? - Common Challenges to Detention Through Habeas and Possible Hurdles
  • How Do I Get into Federal Court? -Nuts and Bolts of Filing a Habeas Petition

Who Should Attend
All attorneys interested in or currently assisting immigrant clients who are detained or subject to conditions of custody, including private and pro bono attorneys, law clinic students and faculty, and public interest and non-profit organization attorneys, would benefit from attending this program. Participants are expected to have a basic knowledge of immigration law but need not have prior experience with habeas petitions.

For more information, visit the links for the two programs:

February 6, 2017

Could an Exec. Order on H-1B Visas Keep U.S. Workers First?

Today the National Law Journal published an op-ed I wrote about the potential impact of a draft order tightening the temporary worker visa program.


The direction of the skilled employment visa restrictions shouldn't be surprising. President Trump often decried the impact of immigrant labor on American workers. Attorney General nominee Sen. Jeff Sessions (R-AL) has done the same. In discussing immigration on his website, Sessions refers to "The Silicon Valley Hoax" of needing immigrant workers in the high-tech sector.

Trump's sentiments tap into a long history of immigration restrictionists, from the infamous Chinese exclusion laws of the late 1800s, claiming that immigrant workers undercut the wage scale and injured American workers.

Modern social science research, however, demonstrates that the economy generally benefits from immigrant labor and that, except for those without a high school diploma who see a small (1-2 percent) decrease in wages, wages are not depressed.

Visit the National Law Journal site to read the full op-ed.

February 1, 2017

King Hall Faculty Members Join CAPALF Statement Condemning Trump Executive Order

The Conference of Asian Pacific American Law Faculty, or CAPALF, has issued a statement on President Trump's recent executive order. The statement is signed by several of King Hall's own Asian-American law faculty, including Afra Afsharipour, Anupam Chander, Gabriel "Jack" Chin, Thomas W. Joo, Rose Cuison Villazor, Lisa Ikemoto, Madhavi Sunder, and Yoshinori "Toso" Himel '75.

An excerpt:

We, members of the Conference of Asian Pacific American Law Faculty, condemn President Trump's executive order, issued on January 27, 2017, which suspends U.S. refugee admission for "nationals of countries of particular concern," and applies to citizens of seven Muslim-majority countries, including persons already legally authorized to enter the United States and, at least initially, lawful permanent residents.

The United States has made the grave mistake of discriminatory exclusion before.  The Chinese Exclusion Act of 1882 was the first federal law to enact a wholesale ban on immigration on the basis of race, ethnicity, or nationality.  It remained in effect until 1943, and was not fully dismantled until 1965.  Congress banned other immigration from Asia from 1917 to 1952.

Asian American history teaches us that wholesale exclusions and bans of an entire people on the basis of race, ethnicity, or national origin are not only morally and constitutionally problematic, but also counterproductive to actual national security objectives.

Visit the CAPALF website to view the full statement.

January 31, 2017

A Teach-In About the Immigration Executive Orders

Please join School of Law faculty for a discussion of President Trump's Executive Orders regarding immigration law, immigrants' rights, and human rights.

Monday, February 6, 2017, 12:00 PM
King Hall Room 1001


Sponsored by

Aoki Center for Critical Race and Nation Studies

Immigration Law Association

La Raza Student Association

Middle Eastern South Asian Law Students Association (MESALSA)

Lunch will be served.

January 27, 2017

Law Review Online Launches

The UC Davis Law Review is celebrating its fiftieth volume by launching an online companion edition: the UC Davis Law Review Online. The online journal will print short, timely pieces—including essays, responses, replies, and book reviews—at

Dean Kevin R. Johnson welcomed the online journal, remarking, “The UC Davis Law Review has a proud history of excellent scholarship and has always evolved with the times.” Dean Johnson detailed that history in the online edition’s very first piece, “Foreword: 50 Volumes of the UC Davis Law Review.”

"We are hoping that the UC Davis Law Review Online will be able to grow into a robust and active forum for engaging legal scholarship above and beyond the articles in our traditional print edition,” says Volume 50 Editor in Chief Lars Torleif Reed. For example, Dean Steven W. Bender from Seattle University School of Law spoke at the Law Review’s 2016 Symposium, Disjointed Regulation: State Efforts to Legalize Marijuana, and published his article “The Colors of Cannabis: Race and Marijuana” in the December 2016 print issue. The new online edition allowed him to reflect on the implications of the 2016 elections in a follow-up piece. It will also allow scholars to respond to pieces in both the print and online journals without the time delay of print publishing.

The Law Review launched its online edition along with its completely redesigned website, Reed, Projects Editors Parnian Vafaeenia and Andrew Aaronian, and Managing Editor Markie Jorgensen developed the online journal and website along with the School of Law’s Senior Graphic Designer Sam Sellers and Web Application Developer Jason Aller. The editors and members of the UC Davis Law Review will staff both the print and online editions.

Authors who wish to publish in the UC Davis Law Review Online should submit through Scholastica or by emailing (Scholastica is strongly preferred.)


January 26, 2017

"Documenting the Immigrant" Conference Co-Sponsored by the School of Law

Tomorrow brings "Documenting the Immigrant: U.S. Immigration Policy Past, Present, and Future," a major conference organized by the UC Davis Institute for Social Sciences with co-sponsors including the School of Law.

I will speak on a panel in the afternoon.

From the conference web page:

This one-day conference, hosted by ISS, will bring scholars from multiple disciplines together with policy activists, journalists, and individuals connected to the legislative environment to explore U.S. immigration policy since 9/11 and address the implications for immigration policy of the Trump presidency.

Friday, January 27, 2017

ARC Ballroom, UC Davis


8:45-8:55: Conference Welcome


8:55-10:25: Borderlines: Life, Death and Being Latina/o

Robert Irwin, UC Davis (Department of Spanish)

Rene Rocha, University of Iowa (Department of Political Science)

Maria Del Carmen Pantoja, UC Davis (Department of Political Science)

Dinah Bear (Humane Borders) 

Moderator: Kristina Flores-Victor, UC Sacramento Center


10:25-10:35: Break 


10:35-12:05: Detained, Deported, and Threatened: A Roundtable

Anna Sampaio, Santa Clara University (Departments of Ethnic Studies and Political Science)

Margaret Regan, Tucson Weekly (journalist and author)

Moderator: Bradford Jones, UC Davis (Department of Political Science)


12:05-12:45: Lunch


12:45-2:05: DACA, DAPA and Deportation Threat

Barbara Pinto, Centro Legal de la Raza (Immigration Senior Staff Attorney)

Faye Hipsman, Migration Policy Institute (Policy Analyst and California Program Coordinator)

Andrea Gaytan, UC Davis (Director, AB 540/Undocumented Student Center)

Melissa Keaney, National Immigration Law Center (Immigration Attorney)

Moderator: Melissa Michelson, Menlo College (Department of Political Science)


2:05-2:15: Break


2:15-4:00: 15 Years Later: Immigration Policy Post 9/11 and What's Ahead in the Trump Administration

Kevin R. Johnson, UC Davis (School of Law)

Giovanni Peri, UC Davis (Department of Economics)

Celeste Montoya, University of Colorado (Department of Women and Gender Studies)

Stephen Nuño, Northern Arizona University (Department of Political Science)

Ali Noorani, National Immigration Forum

Philip Martin, UC Davis (Department of Agricultural and Resource Economics)

Moderator: Karthick Ramakrishnan, UC Riverside (School of Public Policy)