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Karlan Co-Authored Supreme Court Brief in Support of Mexican Deportee Convicted of Sex Crime

Karlan Co-Authored a Supreme Court Brief in Support of a Deported Mexican Immigrant Convicted of “Unlawful Sexual Intercourse with a Minor who is More than Three Years Younger than the Perpetrator.”

Esquivel-Quintana v. Sessions (previously v. Lynch) was a case argued during the October 2016 session of the US Supreme Court. At issue in the case was Juan Esquivel-Quintana, a Mexican citizen that pleaded no contest to a charge of “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” (Cal. Penal Code Ann. §261.5(c).) while he was living in California in 2009.[2] This conviction led to the initiation of deportation proceedings against Esquivel-Quintana. From the Supreme Court opinion:

Petitioner Juan Esquivel-Quintana is a native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident in 2000. In 2009, he pleaded no contest in the Superior Court of California to a statutory rape offense: “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” Cal. Penal Code Ann. §261.5(c) (West 2014); see also §261.5(a) (“Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor”). For purposes of that offense, California defines “minor” as “a person under the age of 18 years.” Ibid.

The Department of Homeland Security initiated removal proceedings against petitioner based on that conviction. An Immigration Judge concluded that the conviction qualified as “sexual abuse of a minor,” 8 U. S. C. §1101(a)(43)(A), and ordered petitioner removed to Mexico. The Board of Immigration Appeals (Board) dismissed his appeal. 26 I. & N. Dec. 469 (2015). “[F]or a statutory rape offense involving a 16- or 17-year-old victim” to qualify as “‘sexual abuse of a minor,’” it reasoned, “the statute must require a meaningful age difference between the victim and the perpetrator.” Id., at 477. In its view, the 3-year age difference required by Cal. Penal Code §261.5(c) was meaningful. Id., at 477. Accordingly, the Board concluded that petitioner’s crime of conviction was an aggravated felony, making him removable under the INA…

Pamela Karlan co-wrote a Brief for the Petitioner in support of Juan Esquivel-Quintana:[1]

Karlan and her co-authors of the Brief argued that Esquivel-Quintana’s conviction did not constitute “aggravated felony of sexual abuse of a minor” and therefore that Esquivel-Quintana should not be subject to removal under the Immigration and Naturalization Act (INA):[1]

…Summary of Argument

Petitioner’s conviction under Cal. Penal Code § 261.5(c) does not constitute the “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the INA.

I. The question whether a state conviction constitutes an “aggravated felony” turns on whether the least culpable acts criminalized under the statute necessarily fall within the crime the INA references. And where there is no readily apparent uniform federal definition of that crime, this Court conducts the categorical approach against the “generic” definition of that crime. The generic definition of a crime, in turn, depends on the prevailing way the offense is defined under federal and state criminal laws, as well as the Model Penal Code.

A multi-jurisdictional analysis here shows 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.” And the text and structure of the INA reinforce the soundness of excluding this conduct from the reach of the aggravated felony of “sexual abuse of a minor.” Accordingly, whatever the full generic definition of “sexual abuse of a minor” may be, it must exclude consensual sex between a 21-yearold and someone almost 18.

The Sixth Circuit and the BIA reached a different conclusion only by declining to use a multijurisdictional survey and instead consulting a smattering of procedural and civil sources that do not even purport to define crimes. But this Court’s precedent precludes such a freewheeling approach. Even if it did not, allowing courts and the BIA to proceed in this manner would create massive administrative difficulties and drain the categorical approach of the efficiency and predictability it is designed to guarantee…

Ultimately, the Supreme Court sided with Karlan and ruled that Esquivel-Quintana’s conviction did not constitute “sexual abuse of a minor” under the INA.[2]

Following the Supreme Court decision, Juan Esquivel-Quintana had his passport and green card reinstated and returned to live with his family in Michigan in 2017, WDET reported:[3]

When Juan Esquivel-Quintana left his factory job in Mexico and headed back to the Michigan, he carried his newly issued passport and his green card.

Also tucked in his suitcase: the U.S. Supreme Court opinion bearing his name.

He was ready to show it to customs agents if they questioned him when he arrived at the Detroit airport two weeks ago.

“I was nervous,” says the 28-year-old man.

The nation’s highest court decision came in May after Esquivel-Quintana’s attorneys successfully argued that he should not have been deported four years ago because of his criminal conviction for unlawful sexual intercourse…

… Meanwhile, Esquivel-Quintana was deported to a border town in northeastern Mexico in 2015. He says he lived in a government-owned house for two weeks with several other men until he got a bus ticket to return to his family’s village. He got a job in a jeans factory, which is where he was when Carlin called him on May 30…

Esquivel-Quintana is seen below in a mugshot posted to the Michigan Department of Corrections (MDOC) website.[4] The American Accountability has requested and is waiting to receive documents from the MDOC and the Sacramento County Superior Court to determine why Esquivel-Quintana had a booking photo taken by MDOC in October 2018. When we receive those documents, we will share them on this website.

Esquivel-Quintana's October 2018 MDOC record raises the question -- did the convicted sex criminal that Pamela Karlan helped to re-enter the United States again find himself on the wrong side of the law?

Sources: [1] US Supreme Court, Esquivel-Quintana v. Lynch, Brief for the Petitioner, December 16, 2016 (via SCOTUS Blog) [2] US Supreme Court, Esquivel-Quintana v. Sessions, Opinion Issued on May 30, 2017 [3] WDET, “Passport, Green Card, U.S. Supreme Court Decision: Deported Man Returns to United States,” July 11, 2017

[4] MDOC, Juan Esquivel Quintana, MDOC Number: 513851


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