WASHINGTON (CN) – Several Supreme Court justices voiced sympathy Monday for an immigrant who is facing deportation for having consensual sex with his underage girlfriend.
The hearing on Juan Esquivel-Quintana, a lawful permanent resident, comes amid escalated deportation efforts by the Trump administration, which is working to ramp up criminal removals and expand the categories of people deported.
Esquivel-Quintana came to the United States with his parents on an immigrant visa in 2000 at the age of 12. At the age of 20, Esquivel-Quintana had consensual sex in California with his girlfriend, who was nearly 17 at the time.
Though the Golden State considers this sexual abuse of a minor, federal law is less clear. After pleading no contest to breaking the California law in 2009, Esquivel-Quintana served 90 days in jail.
He moved to Michigan to be closer to his family after his release, but the Department of Homeland Security initiated removal proceedings against him for committing an aggravated felony, sexual abuse of a minor, which is a deportable offense under federal immigration law.
Esquivel-Quintana says it is not fair to deport him for something that is legal in Michigan and in 42 other states and the District of Columbia, none of which criminalize sex between a 21-year-old and someone who is almost 18.
Justices Elena Kagan and Stephen Breyer indicated during oral arguments this morning that the federal definition of the crime under the Immigration and Nationality Act do not seem applicable. Justice Anthony Kennedy, considered a swing vote for the eight-member court, meanwhile questioned how much deference courts should give immigration authorities to interpret vague criminal laws.
Esquivel-Quintana’s attorney, Jeffrey Fisher, pointed to Black’s Law Dictionary in saying that Congress intended the age of consent to be 16 when considering if sexual abuse has occurred. “Remember, we’re asking at the end of the day whether something’s an aggravated felony, not just whether it’s criminal,” 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 and the vast majority of states,” he added.
Allon Kedem, assistant to the U.S. solicitor general, meanwhile defended the practical definition of abuse on which the Board of Immigration Appeals panel relied to find that some types of consensual activities still carry the risk of harm.
“What it said is when there’s a meaningful age difference, such that the perpetrator and victim are not in the same age group, as a result of that, the victim may not be able to advocate for themselves,” Kedem said.
“They may not be able to protect themselves against certain risks, things like pregnancy or sexually-transmitted diseases,” he added.
Justices Ruth Bader Ginsburg and Elena Kagan pressed Kedem about the age classifications.
“It’s really like a freshman in college going out with a junior in college,” Kagan said.
Justice Samuel Alito noted the disparity in state laws and lack of a common-law definition of sexual abuse of a minor, but he reached a different conclusion than his two liberal counterparts on the bench.
“So this seems to me like a classic example of Congress saying, we have this category sexual abuse of a minor, and we know that there’s all this array of state laws,” he said. “And so you, attorney general, define what should be within this for immigration purposes.”
Kedem agreed, arguing several minutes later against the application of lenity in this case.
“You apply it only when, after trying everything else, you simply have to throw up your hands because you cannot figure out what Congress wanted,” he said. “There is a grievous ambiguity that simply cannot be resolved.”
But Kennedy had a hard time swallowing that argument, noting that he could understand if an agency specializes in something, like environmental regulations or nuclear power.
“Why does the INS have any expertise in determining the meaning of a criminal statute,” Kennedy asked, using the abbreviation for the agency now known as Immigration and Customs Enforcement.
“When the agencies give meaning to a statute, they bring to bear practical wisdom and experience in ways that are important,” Kedem responded.
He concluded by addressing the high court’s difficulty in drawing a line, which he said would undoubtedly be somewhat arbitrary.
“I think that’s a strong reason to defer to the board, because administrative agencies are actually quite good at drawing these sorts of lines,” Kedem said. “And conversely, they’re sort of problematic for courts to do it.”