NINTH CIRCUIT V. BOARD OF IMMIGRATION APPEALS: DEFINING "SEXUAL ABUSE OF A MINOR" AFTER ESTRADA-ESPINOZA V. MUKASEY
Enoka Herat
Abstract: Under the Immigration and Nationality Act (INA), lawful permanent residents are rendered removable if they commit an "aggravated felony" at any time after they are admitted into the United States. Significant interpretive issues arise in determining whether a non-citizen's state-based criminal conviction meets the INA's definition of an aggravated felony. One aggravated felony enumerated in the INA is "sexual abuse of a minor."(fn1) The Board of Immigration Appeals (BIA) has interpreted the phrase using a broad federal definition as a guide. In Estrada-Espinoza v. Mukasey,(fn2) however, the Ninth Circuit declined to defer to the BIA's interpretation because the BIA's decision was not a precedential opinion warranting deference. In reviewing whether a California statutory rape conviction constituted sexual abuse of a minor, the Estrada-Espinoza court applied a different federal definition and concluded there was no violation, and thus, Mr. Estrada-Espinoza was not deportable. The question of how to define "sexual abuse of a minor" will likely come before the Ninth Circuit on substantive grounds once the BIA issues a deference-warranting definition of the provision. This Comment argues that when the Ninth Circuit revisits the issue, it should not defer to the BIA, regardless of the definition it promulgates. Rather, the court should rule that the phrase "sexual abuse of a minor" is unambiguous based on its plain meaning, the Ninth Circuit's precedent, holdings from sister circuits, and policy considerations. This holding would be consistent with the best interpretation of the statute, and Chevron U.S.A. v. Natural Resources Defense Council,(fn3) and its progeny.
INTRODUCTION
Juan Estrada-Espinoza had lived in the United States since he was twelve years old.(fn4) He was a lawful permanent resident-a greencard holder.(fn5) Juan first met Sonia Arredondo in 2001 when he was twenty and she was sixteen.(fn6) They soon developed a relationship, moved in together and began raising their child together.(fn7) Both of their parents approved of and supported their relationship, as did their friends.(fn8) The District Attorney of their small town, however, felt otherwise.(fn9) In 2004, after Sonia had turned eighteen, Juan was charged with statutory rape, convicted on four counts,(fn10) and sentenced to 365 days in jail.(fn11) Juan faced the jarring prospect of deportation due to his conviction for sexual abuse of a minor, an aggravated felony under the Immigration and Nationality Act (INA).(fn12) In 2005, an immigration judge, relying on Board of Immigration Appeals (BIA) precedent, ordered Juan deported for having consensual sex with his underage girlfriend.(fn13) The order was affirmed by the BIA.(fn14) Three years later, in Estrada-Espinoza v. Mukasey, the Ninth Circuit declined to follow the BIA and held that Juan was not deportable.(fn15)
Deportation(fn16) due to an aggravated felony carries severe immigration consequences, including a complete bar on returning to the United States.(fn17) In Juan's case, this would have meant never again visiting the country where he had spent nearly two decades of his life, the family he had nurtured here, or the friends and connections he had made.
Since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),(fn18) the list of crimes constituting aggravated felonies for which an alien can be deported has grown considerably,(fn19) and is no longer limited to the most severe crimes.(fn20)
Instead, misdemeanors, such as shoplifting, can now serve as the basis to deport an immigrant as an aggravated felon, leading some scholars to observe that "a crime need not be either aggravated or a felony."(fn21) In 1996, Congress added "sexual abuse of a minor" as an aggravated felony to the INA.(fn22)
The BIA has the authority to interpret the INA, including the scope of some of the deportability grounds such as aggravated felonies.(fn23) While some aggravated felony grounds are clearly defined by cross-reference to federal criminal statutes, others are not.(fn24) The deportation ground of "sexual abuse of a minor" falls into the latter category, lacking cross-referencing. In Matter of Rodriguez-Rodriguez,(fn25) the BIA used a federal statute as a guide for interpreting the phrase "sexual abuse of a minor."(fn26)
If a non-citizen is convicted of an eligible crime, he or she may be charged with deportation by the Department of Homeland Security, which has prosecutorial power in the immigration context.(fn27) Then, if an immigration judge determines that the crime constitutes sexual abuse of a minor,(fn28) the non-citizen will be ordered removed as an aggravated felon. However, the non-citizen can appeal the removal order to the BIA.(fn29) If a non-citizen's crime fits within this definition, the BIA will affirm the immigration judge's order of removal.(fn30) The non-citizen can then appeal the decision to the circuit court of appeals in the jurisdiction where the case originated.(fn31)
Circuit courts of appeals have limited jurisdiction to review BIA orders of removal. IIRIRA stripped the judiciary of authority to review final orders of removal relating to aggravated felonies.(fn32) However, circuit courts retain jurisdiction over questions of law,(fn33) including the question of what constitutes a crime of "sexual abuse of a minor."(fn34)
Although circuit courts review questions of law de novo, the Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council,(fn35) instructed the judiciary to defer to agency interpretations of statutes they administer.(fn36) This authority has been limited somewhat by Chevron's progeny, particularly where the agency's ruling does not carry the force of law.(fn37) Although the Court did not define "the force of law," it concluded that "interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference."(fn38)
The Ninth Circuit in Estrada-Espinoza v. Mukasey reviewed whether statutory rape under section 261.5 of the California Penal Code is sexual abuse of a minor for immigration purposes.(fn39) The court did not apply the Chevron doctrine to the BIA's interpretation, because the BIA's ruling did not carry the force of law.(fn40) Instead, the court applied a definition found in a federal criminal statute.(fn41)
Under the Supreme Court's Chevron jurisprudence, the BIA need only issue an opinion that does carry the force of law, thus making it eligible for Chevron deference, in order to set aside the Ninth Circuit's interpretation.(fn42) This is the likely course that the BIA will take, considering that it has issued precedential decisions defining other challenged terms in the INA.(fn43) If it does, the substantive issue of how to interpret "sexual abuse of a minor" will likely come before the Ninth Circuit.
Part I of this Comment analyzes judicial deference to interpretations of law by administrative agencies including immigration agencies under Chevron and its progeny. Part II addresses how the BIA has defined the "sexual abuse of a minor" provision of the INA. Part III provides background on the Ninth Circuit's handling of the phrase "sexual abuse of a minor," and the legal context in which the case Estrada-Espinoza arose. Part IV explores how other circuits have dealt with the issue. Finally, Part V notes that the issue will likely be brought to the Ninth Circuit on substantive grounds and argues that the Ninth Circuit should rule that the provision is unambiguous based on a plain meaning interpretation, the Ninth Circuit's case law, the findings of sister circuits, and policy considerations.
I. CHEVRON COMPELS COURTS TO DEFER TO REASONABLE AGENCY INTERPRETATIONS OF AMBIGUOUS STATUTES EVEN WITH REGARDS TO CONCLUSIONS OF LAW
Since Marbury v. Madison,(fn44) interpreting laws has traditionally been within the "province and duty" of the judicial branch.(fn45) Reviewing courts generally give deference to factual conclusions made by trial courts and juries, but determine legal conclusions de novo. In the modern administrative agency context, however, the Supreme Court has developed a doctrine where courts defer to agency interpretations of law in the face of ambiguity.(fn46)
In the landmark case, Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court explained how courts should determine whether deference to an agency interpretation is appropriate.(fn47) The Supreme Court in Chevron created a rule where deference is sometimes given to reasonable agency legal conclusions if the underlying statutory provision is ambiguous.(fn48) Aided by its progeny, Chevron has limited the judicial scope of review relating to a wide range of agency action.(fn49) However, some limits to the doctrine exist. For example, Chevron is not applied when an agency interprets a statute that it does not administer.(fn50) Additionally, under Christensen v. Harris County(fn51) and United States v. Mead Corp.,(fn52) agency actions that lack the force of law are not given deference. Where the Chevron doctrine does apply, appellate courts reviewing an administrative agency's interpretation of a statute...
