Amicus Curiae Brief — Esquivel-Quintana v. Lynch, 137 S. Ct. 368 (2016) (No. 16-54)

No. 16-64

IN THE

Supreme Court of the United States

JUAN ESQUIVEL-QUINTANA,

Petitioner,

Vv.

LORETTA E. LYNCH,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

DAVID MARKUS BENJAMIN J. HORWICH

Co-CHAIR, NACDL Counsel of Record

AMICUS COMMITTEE JOSHUA PATASHNIK

40 NW Third Street, PHI DAVID J. FEDER

Miami, FL 33128 MUNGER, TOLLES & OLSON LLP

(305) 379-6667 560 Mission Street, 27th Floor

San Francisco, CA 94195

ben.horwich@mto.com

(415) 512-4000

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE............................. 1

SERRE NEI ERTL a Ne eee meme 2

FREE SERIE BR a nn EN ee OE OE Re 5

I. BIA INTERPRETATIONS OF

“AGGRAVATED FELONY” DO NOT

QUALIFY FOR CHEVRON

a cdnotinle 6

A. Section 1101(a)(43) Has

Extensive Criminal Applications,

with Substantial Penal

a ieecnaneene 7

B. Because Section 1101(a)(43) Has

Criminal Law Consequences, the

Rule of Lenity Rather than

Chevron Must Be Applied to

Resolve Statutory Ambiguities.............. i]

1. This Court’s Precedent

Dictates that the Rule of

Lenity Applies, Requiring

“Aggravated Felony” to Be

Construed Narrowly and in

Favor of Petitioner ...................... 9

II.

‘3

2. Applying the Rule of

Lenity Rather than

Chevron to Statutes with

Applications Fulfills the

Rule’s Purposes and

Protects Core

Constitutional Values ............... 12

Babbitt’s Footnote Does Not

Command a Contrary Result............... 16

EVEN IF THE CHEVRON

FRAMEWORK APPLIES,

DEFERENCE TO THE BIA’S

INTERPRETATION IS NOT

A. The BIA Does Not Administer

Criminal Laws and Lacks

Relevant Criminal Law Expertise

B. Affording Chevron Deference to

the BIA’s Interpretation Would

Create Significant Practical

Difficulties for Criminal Defense

Lawyers and Their Clients..................

CONCLUSION

TABLE OF AUTHORITIES

Cases

Abramski v. United States,

194 S. Ct. 2259 (2014)..............0.0..00.0.00-0.

Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

Re Se Ge CIE ccevincnnineincisiinenccsconsenses

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013)...............-...

Chevron, U.S.A. Inc. v. Natural

Resources Defense Council, Inc.,

Re Ws Ie Ce stctttenivtnctereseverssscenses

City of Arlington v. FCC,

133 S. Ct. 1863 (2013).................... isnimtiies

Clark v. Martinez,

eee

Crandon v. United States,

re Se rttitcnteccninivensettonncesnsnten

Descamps v. United States,

133 S. Ct. 2276 (2O1B)..........2.0...cs0cesesesee-

Efstathiadis v. Holder,

752 F.3d 591 (2d Cir. 2014) .........-..2.:.00

Page

-.++e passim

iv

FCC v. ABC,

SO I, it 3, 6, 10

Francis v. Reno,

269 F.3d 162 (3d Cir. 2001) .............ccccccceceooeecess. 21

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. RE 24

Judulang v. Holder,

Ss Ws I vcricitncntntesomsisieses coececesnc: cece cco. 13

Kasten v. Saint-Gobain Performance

Plastics Corp., 563 U.S. 1 (2011)......................... 10

Leocal v. Ashcroft,

In i 3, 6, 10, 17

Lynce v. Mathis,

EES aor a ey 13

Maracich v. Spears,

| en nS 12

Marmolejo-Campos v. Holder,

558 F.3d 903 (9th Cir. 2009) 0.00... ccccccecccceeeee 21

McBoyle v. United States,

SR I TO I oir cc schcenrcenisssenesnasceneetesesasscon. 12

Mellouli v. Lynch,

Be i Gree, BI Oo vccccsccevexconceoenesneiensseneses.c: 23

Moncrieffe v. Holder,

8 are ae 22

v

National Cable & Telecommunications

Ass’n v. Brand X Internet Services,

eS Se I iattctnccntenccscestnneesencese

Nijhawan v. Holder,

er Se aiiescnineninnecenamnecicenianss

Pacific Mutual Life Insurance Co. v.

Haslp, 499 U.S. 1 (1991)...........2..+----+.-

Padilla v. Kentucky,

Ey I, ME EE ncecansccesivecsestssnnsecanse

Pension Benefit Guaranty Corp. v.

LTV Corp., 496 U.S. 633 (1990)............

Peugh v. United States,

188 SB. Ce. BOTZ GAO1B).......2.2.2200cc0v0e-00 20000

Scheidler v. National Organization for

Women, Inc., 537 U.S. 393 (2003).........

Shalala v. Illinois Council on Long

Term Care, Inc., 529 U.S. 1 (2000).......

Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001) ............

Touby v. United States,

ee Oe Be IE crecccccesstssccevsscssnesaanss

United States v. Apel,

Be Oy Se BN SE creer crecenensntsnstceeees

United States v. Bass,

I CI oo. ccsncnasitriniacmniiananiseimasiie passim

United States v. Eaton,

i cisiincindsinssineinmadeoninnmenicininaiadians 15

United States v. Gamboa-Garcia,

620 F.3d 646 (GE Cir. BO10)......0c.cccccscccccccccescscccees 9

United States v. Grimaud,

I caclepasalaniainn 15

United States v. Kozminski,

en i stetenmennin 4,10, 14

United States v. Londono-Quintero,

I Be Ge I SII dcicecccssiccncsensascoccentaconsen i)

United States v. Martinez,

rj} 8 .¢ Lo || \ Renee 9

United States v. Pacheco,

, Fe bf. fe RE EeCsErEEED 9

United States v. Thompson/Center

Arms Co., 504 U.S. 505 (1992)...................+ passim

United States v. Wiltberger,

pe BS ee 9

Whitman v. American Trucking Ass‘ns,

a Ts ssencineoneanel 16

Whitman v. United States,

i is ccnnremsenrinennninbinde 15, 17

Yakus v. United States,

Se ee iia cediiccaiiininisidisidedeincad ERR ae 16

Statutes

es Oy IU ivesiicncteciicntinccenesccnentadeni passim

i ici sasinstinsiunioinesabunibeaaiions 7

ts Oe II ilsitedisccenecacconinesnnittenieniniieenemeinimnaninenitiiin 7,8

ee titi tesinennitenseesnatpcnscyentinteheaibnteiennaian 7

OE oe I sce sctccesnicensssonsdnenicsrs<onsssenptniaeian 7,8

Bee ie Se ert scintistecsavtennnsusccoveinentavsntinnbuanitoationsin 7

ae Be cccctcccnvscssanstcssicntndebinnatatsiinvaauimnmminesinas 7

ee Oe ein skciiccethertlsneaccesclicemtiseonnicenitintimaieeiidints 7,8

ee I sels ics sietsictckaclnsdrbaictentphancsicivie tnloraeantiobhabeia 7

ee I i ehlissinncrncstipstenpandemnichdeunntindaebaniatanniie 7

re ae ED viririeeen te seitnnacstteensenictnianvinmincutanton 19

Cal. Penal Code § 361.5(C)...........0.c.s.ccceeeeeeeees 2, 12, 22

Or. Rev. Stat. § 163.415 ...........ccscsccsescsessessesesseseeeeees 18

Other Authorities

JOHN S. BAKER, JR., THE FEDERALIST

Soc’y FOR LAW & PUB. POLICY

STUDIES, MEASURING THE EXPLOSIVE

GROWTH OF FEDERAL CRIME

LEGISLATION (2004)..............0::cc0000000.

1 WILLIAM BLACKSTONE, COMMENTARIES

ON THE LAWS OF ENGLAND..................-

Brief for Respondent, Leocal v. Ashcroft,

No. 03-583, 2004 WL 1617398 (July

a ...

William N. Eskridge, Jr. & Philip P.

Frickey, Foreword: Law As Equilib-

rium, 108 Harv. L. Rev. 26 (1994)......

Neil M. Gorsuch, Law’s Irony,

37 Harv. J.L. & Pub. Pol’y 743 (2014)

Dan M. Kahan, Lenity and Federal

Common Law Crimes,

1904 Sup. Ct. Bev. BAB........ccccccoossse:..

R. MCWHIRTER, ABA, THE CRIMINAL

LAWYER’S GUIDE TO IMMIGRATION

Zachary Price, The Rule of Lenity as a

Rule of Structure,

72 Fordham L. Rev. 885 (2004)..........

iainiibdinitiiis .14

ix

Carol S. Steiker, Punishment and

Procedure: Punishment Theory and

the Criminal-Civil Procedural

Divide, 85 GEO. Ld. 775 (1997) ......-..-..----ceceeeeeees 13

WILLIAM J. STUNTZ, THE COLLAPSE OF

AMERICAN CRIMINAL JUSTICE (2011) ................... 14

TRANSACTIONAL RECORDS ACCESS

CLEARINGHOUSE, TRAC REPORTS,

PROSECUTIONS FOR 2014 (Dec. 5,

2014), http://tracfed.syr.edu/

results/9x20548211252a. html .............--.......... aves

U.S. SENTENCING COMMISSION, ILLEGAL

REENTRY OFFENSES (April 2015),

http://www.ussc.gov/sites/default/

files/pdf/research-and-publications/

research-projects-and-surveys/

immigration/2015_Illegal- austin

INTEREST OF AMICUS CURIAE!

The National Association of Criminal Defense Law-

yers (NACDL) is the preeminent organization in the

United States representing attorneys practicing in the

field of criminal defense—including private criminal-

defense lawyers, public defenders, active U.S. military

defense counsel, law professors, and judges committed

to preserving fairness within America’s criminal justice

system. NACDL files numerous amicus curiae briefs

each year in this Court and other courts. This Court

has often cited NACDL amicus curiae briefs that ad-

dress the everyday workings of the criminal-justice

system and the implications of the Court’s decisions in

criminal justice and immigration cases.

NACDL and its members have a longstanding in-

terest in the question whether the rule of lenity applies

when a court confronts an ambiguous statutory provi-

sion that has both civil and criminal applications and

that an administrative agency has interpreted.

NACDL filed an amicus brief in this Court on that

subject last Term in Luna Torres v. Lynch, No. 14

1096. Given NACDL’s expertise on this issue, NACDL

respectfully submits that its perspective would be

helpful to the Court in deciding this case.

1 Pursuant to Supreme Court Rule 37.3(a), Petitioner and

Respondent have consented to the filing of this brief. Petitioner

has filed a blanket consent to the filing of amicus curiae briefs.

A letter of consent from Respondent has been filed with the

Clerk. Pursuant to Supreme Court Rule 37.6, amicus repre-

sents that no party authored this brief in whole or in part, and

no person or entity, other than amicus curiae, its members, or

its counsel, has made a monetary contribution to the prepara-

tion or submission of this brief.

INTRODUCTION

This case concerns the meaning of the statutory

term “sexual abuse of a minor,” an “aggravated felony”

under the Immigration and Nationality Act (INA).

8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony”

to include “murder, rape, or sexual abuse of a minor”).

The Sixth Circuit held that petitioner's conviction

under California Penal Code section 261.5(c)}—which

criminalizes consensual sexual conduct that is not even

criminal in 43 states and is punishable as a felony in

just three—constituted an “aggravated felony.” In so

holding, the Sixth Circuit did not determine that the

Board of Immigration Appeals’ (BIA’s) interpretation of

section 1101(a)(43) was the best reading of the statute.

Rather, it deferred to the BIA’s reading as a reasonable

interpretation under Chevron, U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

This was error.

The Sixth Circuit misconceived the role of Chevron

deference in a case, such as this one, calling for an

interpretation of a “hybrid” statute—one carrying both

civil and criminal applications. When a court confronts

such a statute and identifies an ambiguity in it, rather

than deferring to the agency's interpretation under

Chevron, the court should apply all relevant principles

of statutory interpretation, including (as relevant here)

the rule of lenity. “All manner of presumptions, sub-

stantive canons and clear-statement rules take prece-

dence over conflicting agency views.” Carter v. Welles-

Bowen Realty, Inc., 736 F.3d 722, 731 (6th Cir. 2013)

3

(Sutton, J., concurring) (citing numerous examples

from this Court's rulings).

The reason for this is straightforward. It is a prin-

ciple nearly as old as the common law itself that crimi-

nal statutes must be interpreted according to the rule

of lenity, which requires ambiguities to be resolved in

the defendant's favor and narrows a statute’s potential

punitive reach. United States v. Bass, 404 U.S. 336,

347 (1971). This Court has also recognized a unitary-

meaning principle: a statutory provision that has both

civil and criminal applications carries a single, unitary

meaning. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).

Put together, these two principles compel the con-

clusion that the rule of lenity must be applied to hybrid

statutes even when the question of the statute’s reach

arises in a civil case. The Court’s opinions recognize as

much. See, e.g., id.; United States v. Thompson /Center

Arms Co., 504 U.S. 505, 518 n.10 (1992) (plurality

opinion); FCC v. ABC, 347 U.S. 284, 296 (1954) (ex-

plaining that lenity must be applied even in a civil case

because “[t]here cannot be one construction for the

Federal Communications Commission and another for

the Department of Justice”). Application of the rule of

lenity leaves no room for Chevron deference: Chevron

comes into play only after applying traditional tools of

statutory interpretation, and the rule of lenity is one

such tool.

Not only does doctrinal reasoning point toward this

result; so too do the functional policy rationales under-

lying the rule of lenity. The rule of lenity serves “to

promote fair notice to those subject to the criminal

laws, to minimize the risk of selective or arbitrary

enforcement, and to maintain the proper balance be-

4

tween Congress, prosecutors, and courts.” United

States v. Kozminski, 487 U.S. 931, 952 (1988). Given

the proliferation of hybrid statutes, many with far-

reaching criminal provisions, applying the rule of leni-

ty rather than Chevron helps to protect the public from

arbitrary or unfair criminal prosecutions based on

obscure administrative interpretations of ambiguous

statutes.

Against all this, the Court of Appeals in this case

believed that a footnote in Babbitt v. Sweet Home

Chapter of Communities for a Great Oregon, 515 U.S.

687, 704 n.18 (1995), required deference to the BIA’s

interpretation of section 1101(a)(43), notwithstanding

that provision’s criminal applications. Pet. App. 10a.

But Babbitt’s footnote cannot bear the weight the Sixth

Circuit placed on it. Accepting the Sixth Circuit's

reading of Babbitt means accepting (implausibly) that

this Court overruled longstanding precedent without

expressly saying so. Moreover, Babbitt is distinguish-

able in key respects: it involved a facial challenge to a

20-year-old regulation, not (as here) a challenge to an

agency interpretation made through case-by-case ad-

judication years after the relevant conduct.

Even if the Chevron framework applies to agency

interpretations of hybrid statutes, the BIA’s interpre-

tation here deserves no deference. As discussed in

petitioner's brief, the BIA’s reading of the statute is not

a reasonable one. Two additional considerations make

deference inappropriate in this case.

First, the BIA’s lack of expertise in applying or in-

terpreting criminal laws further counsels against

Chevron deference here, since “practical agency exper-

tise” is one of Chevron’s main rationales. Pension

5

Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,

651-52 (1990). Courts, not government agencies, are

best suited to apply the categorical approach to deter-

mine what crimes constitute “aggravated felonies.”

Second, affording Chevron deference to the BIA’s in-

terpretation would create significant practical difficul-

ties for criminal-defense lawyers and their oats.

Under Padilla v. Kentucky, 559 U.S. 356 (2010), de

fense counsel must advise their clients of the immigra-

tion consequences of any plea agreement. Deference to

the BIA’s interpretations of the INA would charge

criminal defense attorneys with awareness of ever-

shifting immigration law, at the administrative level,

in order to meet their constitutional obligations. Not

only that, criminal defense attorneys would be obligat-

ed to try to predict whether the BIA might rely (as it

did here, see Petr. Br. 28-29) on a wide variety non-

criminal sources, such as periodicals and scientific

journals, to determine the immigration consequences

of criminal convictions. The practical impossibility of

that task confirms that Chevron deference is unwar-

ranted here.

ARGUMENT

NACDL agrees with petitioner that the Sixth Cir-

cuit misapplied the categorical approach in determin-

ing the meaning of the statutory term “sexual abuse of

a minor,” 8 U.S.C. § 1101(a)(43)(A). See Petr. Br. 14-

35. It submits this brief not to rehash those arguments

but to elaborate on an additional error committed by

the Court of Appeals: affording Chevron deference to

the BIA’s interpretation of “sexual abuse of a minor”

6

without resort to the rule of lenity, notwithstanding

the many criminal applications of section 1101(a)(43).

I. BIA INTERPRETATIONS OF

“AGGRAVATED FELONY” DO NOT

QUALIFY FOR CHEVRON DEFERENCE

Two established principles, taken together, compel

the conclusion that the Sixth Circuit erred in affording

Chevron deference to the BIA’s statutory interpreta-

tion rather than applying the rule of lenity to resolve

the statutory ambiguity. First, the rule of lenity has

long directed courts to interpret ambiguity in a crimi-

nal statute narrowly, in favor of the defendant. E.g.,

Bass, 404 U.S. at 347. Second, “hybrid” statutory

provisions—those with both civil and criminal applica-

tions—have a single, unitary meaning that does not

shift depending on context. E.g., Leocal, 543 U.S. at 11

n.8.

In multiple cases, this Court has already recognized

that these principles, when combined, require applica-

tion of the rule of lenity to hybrid statutory provisions.

E.g., Thompson/Center Arms Co., 504 U.S. at 518 n.10

(plurality opinion); id. at 519 (Scalia, J., concurring in

the judgment) (agreeing that the rule of lenity applies);

FCC v. ABC, 347 U.S. at 296. That approach is in full

accord with the rationales underlying the rule of lenity.

It would also protect, rather than undermine, the sepa-

ration of powers.

In reaching a contrary result, the Sixth Circuit re-

lied entirely on a single footnote in Babbitt, 515 U.S. at

704 n.18. But Babbitt cannot support the great weight

the Court of Appeals put on it—it would require ac-

cepting that this Court overruled longstanding prece-

dent and did so without expressly saying so. If the

7

Babbitt footnote is not simply overruled itself, it should

at the least be given a narrower reading that would

accommodate rather than contradict these precedents.

A. Section 1101(a)(43) Has Extensive

Criminal Applications, with

Substantial Penal Consequences

The INA, like numerous other statutes, has both

civil and criminal applications. It criminalizes, among

other things, (1) an immigrant’s failure to leave the

country after an order of removal, 8 U.S.C. § 1253; (2)

the harboring of certain immigrants, id. § 1324; (3) an

immigrant’s improper entry, or reentry, into this coun-

try, id. §§ 1325, 1326; (4) providing assistance to immi-

grants who are improperly entering the country, id.

§ 1327; and (5) the importation of immigrants for im-

moral purposes, id. § 1328.

Section 1101(a)(43), the INA provision at issue in

this case, itself has numerous and significant criminal

applications. For example, it is a felony to aid or assist

“any alien inadmissible under section 1182(a)(2) (inso-

far as an alien inadmissible under such section has

been convicted of an aggravated felony).” 8 U.S.C.

§ 1327. Likewise, the federal failure-to-depart statute

makes it a felony for immigrants convicted of an ag-

gravated felony to remain in the country. See id.

§§ 1253(a)(1), 1227(a)(2)(A) Gin).

Section 1101(a)(43) also substantially increases the

sentencing exposure of those convicted of certain fed-

eral criminal offenses. For example, the maximum

penalty authorized by statute for illegal reentry under

8 U.S.C. § 1326 is 2 years for a “simple” offense, mean-

ing no enhancements based on predicate convictions,

but 20 years if the defendant has been previously con-

8

victed of an aggravated felony. See id. § 1326(b)(2)

(also identifying an intermediate penalty for those with

prior non-aggravated-felony convictions). Similarly, a

federal criminal defendant faces a maximum prison

term of 4 years for “simple” failure to depart under

8 U.S.C. § 1253(a)(1), but he or she faces a maximum

10-year prison term if previously convicted of an ag-

gravated felony. See id.; id. § 1227(a)(2)(A)(iii).

These criminal law consequences under section

1101(a)(43) are widespread. The illegal reentry statute

is the second-most prosecuted felony (after illegal en-

try) in the federal courts. TRANSACTIONAL RECORDS

ACCESS CLEARINGHOUSE, TRAC REPORTS, PROSECU-

TIONS FOR 2014 (Dec. 5, 2014).? In 2013, illegal reentry

cases accounted for more than a quarter of all federal

criminal sentencings and five out of every six sen-

tencings involving immigration offenses. U.S. SEN-

TENCING COMMISSION, ILLEGAL REENTRY OFFENSES 9-

10 (April 2015).2 Moreover, of the 18,498 illegal

reentry defendants sentenced in 2013, “slightly more

than 40 percent faced a statutory maximum of 20

years under § 1326(b)(2)” because of an aggravated

felony conviction, instead of a two- or ten-year statuto-

ry maximum that otherwise would apply. Jd.

Not surprisingly, then, federal courts routinely are

called upon in criminal cases to determine what crimes

rank as “aggravated felon[ies]” within the meaning of

section 1101(a)(43), including under the “sexual abuse

of a minor” provision at issue in this case. See, e.g.,

2 http://tracfed.syr.edu/results/9x20648211262a. html.

3 http://www .ussc.gov/sites/default/files/pdf/research-and-

publications/research-projects-and-surveys/immigration/

2015 Ilegal-Reentry-Report.pdf.

9

United States v. Londono-Quintero, 289 F.3d 147, 151

(ist Cir. 2002) (interpreting the aggravated felony of

“sexual abuse of a minor,” § 1101(a)(43)(A)); United

States v. Martinez, 786 F.3d 1227, 1230-33 (9th Cir.

2015) (same); United States v. Pacheco, 225 F.3d 148,

153-55 (2d Cir. 2000) (interpreting the aggravated

felony of “theft offense,” § 1101(a)(43)(G)); United

States v. Gamboa-Garcia, 620 F.3d 546, 548-50 (5th

Cir. 2010) Gnterpreting the aggravated felony of “an

offense relating to obstruction of justice,”

§ 1101(a)(43)(S)).

B. Because Section 1101(a)(43) Has

Criminal Law Consequences, the

Rule of Lenity Rather than Chevron

Must Be Applied to Resolve

Statutory Ambiguities

1, This Court’s Precedent

Dictates that the Rule of

Lenity Applies, Requiring

“Aggravated Felony” to Be

Construed Narrowly and in

Favor of Petitioner

It is a fundamental rule of statutory interpretation,

“perhaps not much less old than construction itself,”

United States v. Wiltberger, 18 U.S. (6 Wheat.) 76, 95

(1820) (Marshall, C.J.), that in construing a criminal

statute, the rule of lenity requires that ambiguities be

resolved in the defendant's favor. Bass, 404 U.S. at

347; see also, e.g., Crandon v. United States, 494 U.S.

152, 158 (1990) (describing lenity as a “time-honored

interpretive guideline”); 1 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND *88 (describ-

ing lenity as a rule of strict construction); Zachary

10

Price, The Rule of Lenity as a Rule of Structure, 72

Fordham L. Rev. 885, 897 (2004) (discussing the rule of

lenity’s “origins in the efforts of common law courts in

the seventeenth and eighteenth centuries”). The rule

has its roots in several foundational principles of

American law: “to promote fair notice to those subject

to the criminal laws, to minimize the risk of selective

and arbitrary enforcement, and to maintain the proper

balance between Congress, prosecutors, and courts.”

Kozminskhi, 487 U.S. at 952.

It is also well established that, where a single stat-

ute has both civil and criminal applications, courts

“must interpret the statute consistently, whether

[they] encounter its application in a criminal or non-

criminal context.” Leocal, 543 U.S. at 11 n.8; see also,

e.g., Kasten v. Saint-Gobain Performance Plastics

Corp., 563 U.S. 1, 16 (2011); Clark v. Martinez, 543

U.S. 371, 380 (2005); Scheidler v. Nat? Org. for Wom-

en, Inc., 537 U.S. 393, 408-09 (2003); FCC v. ABC, 347

U.S. at 296 (“There cannot be one construction for the

Federal Communications Commission and another for

the Department of Justice.”). Disregarding this uni-

tary-meaning principle “would render every statute a

chameleon, its meaning subject to change” depending

on the circumstances. Clark, 543 U.S. at 382.

Putting these two rules together leads to the conclu-

sion that the rule of lenity must be applied to “hybrid”

statutes with both civil and criminal applications. This

Court’s opinions say as much. See Leocal, 643 U.S. at

11 n.8; Kasten, 563 U.S. at 16; FCC v. ABC, 347 U.S. at

296; Thompson/Center Arms Co., 504 U.S. at 518 n.10

(plurality opinion) (rule of lenity applied to interpreta-

tion of civil tax provision with criminal applications);

id. at 519 (Scalia, J., concurring in the judgment)

11

(agreeing that the rule of lenity applies); cf. Clark, 543

U.S. at 380 (‘It is not at all unusual to give a statute’s

ambiguous language a limiting construction called for

by one of the statute’s applications, even though other

of the statute’s applications, standing alone, would not

support the same limitation. The lowest common de-

nominator, as it were, must govern.”). Indeed, in

Leocal, the government itself acknowledged that defer-

ence to agency interpretation of a criminal statute is

unwarranted even where that statute also has civil

applications. See Brief for Respondent, Leocal v. Ash-

croft, No. 03-583, 2004 WL 1617398, at *32-33 (U.S.

July 14, 2004).

Application of the rule of lenity leaves no place for

Chevron deference. Even if the Chevron framework

were theoretically applicable to hybrid statutes, courts

must apply the “traditional tools of statutory construc-

tion” before deeming a statute ambiguous and defer-

ring to an agency’s interpretation. Chevron, 467 U.S.

at 843 n.9. This includes the rule of lenity. See Nat?

Cable & Telecomm. Ass'n v. Brand X Internet Servs.,

545 U.S. 967, 985 (2005) (noting that lower court had

“invoked no other rule of construction (such as the rule

of lenity) requiring it to conclude that the statute was

unambiguous” (emphasis added)); Carter, 736 F.3d at

732 (Sutton, J., concurring) (noting that “Chevron

accommodates rather than trumps the lenity princi-

ple”); William N. Eskridge, Jr. & Philip P. Frickey,

Foreword: Law As Equilibrium, 108 Harv. L. Rev. 26,

68-69, 104 (1994) (explaining that lenity is a “substan-

tive canon” of statutory construction).

At the very least, the rule of lenity must take prece-

dence over Chevron in cases involving “grievous” ambi-

guities—the standard this Court has set for application

12

of the rule. E.g., Maracich v. Spears, 133 S. Ct. 2191,

2209 (2013). This is such a case: as Judge Sutton

recognized, it is a “classic occasion for applying the rule

of lenity.” Pet. App. 21a. The key statutory phrase at

issue in this case—“sexual abuse of a minor’—contains

just five words and provides virtually no contextual

guidance to courts, agencies, or lawyers. And the ordi-

nary approach one would use to determine whether

“sexual abuse of a minor” categorically encompasses

the conduct criminalized by Penal Code section

261.5(c)—looking to the laws of the 50 States, the fed-

eral government, and the Model Penal Code—strungly

suggests the answer is no. See Petr. Br. 15-21. Ata

minimum, under the rule of lenity, the statutory text is

not sufficiently clear to permit a holding that Penal

Code section 261.5(c) categorically defines an aggra-

vated felony.

2B. Applying the Rule of Lenity

Rather than Chevron to

Statutes with Both Civil and

Criminal Applications Fulfills

the Rule’s Purposes and

Protects Core Constitutional

Values

Applying the rule of lenity in cases like this one

dovetails with the rule’s central purpose of requiring

the government to provide “fair warning” of what the

criminal laws prohibit. Bass, 404 U.S. at 348; McBoyle

v. United States, 283 U.S. 25, 27 (1931). Deferring to

an agency’s interpretation of a hybrid statute threat-

ens to deprive the public of fair notice. The citizen

must guess, among other things, whether a statute will

be deemed ambiguous (courts often disagree) and

13

whether an agency’s interpretation will be deemed

reasonable (courts often disagree about this, too).

Exacerbating this problem, agencies routinely

change their interpretation of statutory provisions.

Deference thus would “allow one administration to

criminalize conduct within the scope of the ambiguity,

the next administration to decriminalize it, and the

third to recriminalize it.” Carter, 736 F.3d at 729 (Sut-

ton, J., concurring). If the meaning of hybrid statutes

could shift with the political winds, individuals could

find themselves facing criminal prosecution (or en-

hanced punishment) based on new agency pronounce-

ments for actions that were perfectly legal (or were

punished less harshly) just weeks or months earlier.

As applied in criminal cases, that would violate the Ex

Post Facto Clause. See Peugh v. United States, 133

S. Ct. 2072, 2081 (2013). And the problem of “lack of

fair notice,” which is one of the “central concerns of the

Ex Post Facto Clause,” Lynce v. Mathis, 519 U.S. 433,

441 (1997), is a serious one in the immigration context

as well, given instabilities in the BIA’s interpretations

of many statutory provisions. See, e.g., Judulang v.

Holder, 132 S. Ct. 476, 488 (2011) (unanimously reject-

ing the BIA’s interpretation while noting that the “BIA

repeatedly vacillated” in determining whether § 212(c)

of the INA permits the Attorney General to grant dis-

cretionary relief to a deportable non-citizen).

This fair-notice problem, moreover, must also be

viewed in the context of the increasing number and

reach of criminal laws since the middle of the twenti-

eth century. See Carol S. Steiker, Punishment and

Procedure: Punishment Theory and the Criminal-Civil

Procedural Divide, 85 Gro. L.J. 775, 783-84 (1997).

There are so many federal crimes now that it is diffi-

14

cult to count them, but there are at least several thou-

sand. See, e.g., JOHN S. BAKER, JR. ET AL., THE FEDER-

ALIST SoC’Y FOR LAW & PUB. POLICY STUDIES, MEASUR-

ING THE EXPLOSIVE GROWTH OF FEDERAL CRIME LEGIS-

LATION 3 (2004) (estimating that the U.S. Code con-

tains over 4,000 criminal statutes).

In this setting, the rule of lenity helps “minimize

the risk of selective or arbitrary enforcement.”

Kozminski, 487 U.S. at 952; see also Dan M. Kahan,

Lenity and Federal Common Law Crimes, 1994 Sup.

Ct. Rev. 345, 406 (noting that the rule of lenity “re-

duce[s] the opportunities for prosecutorial abuse”). By

contrast, layering Chevron deference atop the increas-

ingly broad array of federal criminal laws would give

the government substantial power to engage in selec-

tive prosecution based on obscure administrative pro-

nouncements. “[W]hen the criminal code comes to

cover so many facets of daily life, ... prosecutors can

almost choose their targets with impunity,” Neil M.

Gorsuch, Law’s Irony, 37 Harv. J.L. & Pub. Pol’y 743,

748 (2014), a problem compounded when Chevron

deference is afforded to the government's interpreta-

tions of expansive hybrid laws. Individuals disfavored

by the government for one reason or another could well

become the target of prosecutions based on ambiguous

statutes. See WILLIAM J. STUNTZ, THE COLLAPSE OF

AMERICAN CRIMINAL JUSTICE 2-5 (2011).

Applying the rule of lenity rather than Chevron def-

erence also accords with another main purpose of the

rule: protection of the separation of powers. This

Court has recognized that “because of the seriousness

of criminal penalties, and because criminal punish-

ment usually represents the moral condemnation of

15

the community, legislatures and not courts should

define criminal activity.” Bass, 404 U.S. at 348.

That principle would ring hollow if courts deferred

to agency interpretations of hybrid statutes. Doing so

would give Executive Branch officials the power to “in

effect create (and uncreate) new crimes at will, so long

as they do not roam beyond ambiguities that the laws

contain.” Whitman v. United States, 135 S. Ct. 352,

353 (2014) (Scalia, J., statement respecting denial of

certiorari); see also Carter, 736 F.3d at 731 (Sutton, J.,

concurring) (noting that deference would “giv[e] une-

lected commissioners and directors and administrators

carte blanche to decide when an ambiguous statute

justifies sending people to prison”). It would also “turn

the normal construction of criminal statutes upside-

down, replacing the doctrine of lenity with a doctrine of

severity.” Crandon, 494 U.S. at 178 (Scalia, J., concur-

ring in the judgment).

Indeed, applying Chevron deference rather than the

rule of lenity would contravene two related lines of this

Court’s precedent pertaining to the separation of pow-

ers. For over one hundred years, the Court has con-

sistently explained that the Constitution allows Con-

gress to delegate authority to the Executive to define

crimes only when it speaks clearly. See, e.g., United

States v. Grimaud, 220 U.S. 506 (1911); United States

v. Eaton, 144 U.S. 677, 688 (1892). While unclear

delegation by Congress is no obstacle to agency rule-

making (or to Chevron deference) in the ordinary civil

context, see City of Arlington v. FCC, 133 S. Ct. 1863,

1874-75 (2013), the clear-statement rule “compels

Congress to legislate deliberately and explicitly before

departing from the Constitution’s traditional distribu-

tion of authority” in the criminal law context. Carter,

16

736 F.3d at 733 (Sutton, J., concurring). Deferring to

agency interpretations of ambiguous statutes with

criminal applications would impermissibly allow agen-

cies to make conduct criminal without a clear state-

ment from Congress giving the agency that authority.

Similarly, while delegation to agencies requires only

an “intelligible principle” in the ordinary civil context,

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472

(2001), this Court has suggested that the Constitution

may require “something more than an ‘intelligible

principle” when it comes to a delegation of authority to

criminalize conduct—something that “meaningfully

constrains” the Executive may be needed. Touby v.

United States, 500 U.S. 160, 165-66 (1991); Yakus v.

United States, 321 U.S. 414, 423-27 (1944). But under

the Sixth Circuit’s approach here, “an agency could fill

a gap in a criminal statute even where Congress pro-

vides no specific guidance about how to fill it.” See

Carter, 736 F.3d at 734 (Sutton, J., concurring).

C. Babbitt’s Footnote Does Not

Command a Contrary Result

Contrary to what the Court of Appeals believed (see

Pet. App. 9a), this Court’s opinion in Babbitt provides

no basis to depart from the well-established principles

discussed above. In Babbitt, the Court rejected the

argu[{ment] that the rule of lenity should foreclose any

deference to the Secretary [of the Interior]’s interpreta-

tion” of the statutory term “take” in the Endangered

Species Act. 515 U.S. at 704 n.18. The Court stated

that it had “never suggested that the rule of lenity

should provide the standard for reviewing facial chal-

lenges to administrative regulations whenever the

governing statute authorizes criminal enforcement.”

17

Id. For several reasons, this “drive-by” footnote “de-

serves little weight,” Whitman, 135 S. Ct. at 354 (Scal-

ia, J., statement respecting the denial of certiorari),

and should not guide this Court’s analysis.

Most importantly, reading the Babbitt footnote

broadly “contradicts the many cases before and since

holding that, if a law has both criminal and civil appli-

cations, the rule of lenity governs its interpretation in

both settings.” Id. at 353-54 (citing Leocal, 543 U.S. at

11-12 n.8 and Thompson/Center Arms Co., 505 U.S. at

518 n.10 (plurality opinion)). And this “Court does not

normally overturn, or ... dramatically limit, earlier

authority sub silentio.” Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1, 18 (2000). To the extent

the Babbitt footnote may be considered to have done

so, it can and should be overruled. See Pacific Mut.

Life Ins. Co. v. Haslip, 499 U.S. 1, 37-38 (1991) (Scalia,

J., concurring in the judgment) (in such a situation,

there is “no valid stare decisis claim”).

Indeed, this Court itself has evinced uncertainty

about whether—even in the context of environmental

regulation—the Babbitt footnote should be taken at

face value. Six years after Babbitt, in Solid Waste

Agency of Northern Cook County v. U.S. Army Corps of

Engineers, 531 U.S. 159 (2001), the petitioner argued

that “[blecause violations of the [Clean Water Act]

carry criminal penalties, ... the rule of lenity” provided

“another basis for rejecting the [government’s] inter-

pretation of the [Act].” Jd. at 174 n.8. The Court opted

to “not address this alternative argument” in light of

its ruling in the petitioner's favor on other grounds. Id.

If Babbitt had resolved the issue, the Court could simp-

ly have said as much, rather than declining to address

it.

18

Alternatively, the Babbitt footnote should be limited

in any of several ways that would help restore the

proper relationship between Chevron and the rule of

lenity in this case and others like it.

First, the Babbitt footnote emphasized that the reg-

ulation at issue in that case had “existed for two dec-

ades,” giving a “fair warning of its consequences.” 515

U.S. at 704 n.18. Babbitt also distinguished Thomp-

son /Center Arms Co. on the ground that “no regulation

was present” in that case. Jd. Here, as in Thomp-

son/Center Arms Co. and unlike in Babbitt, there is no

regulation and no fair warning. The agency interpre-

tation here arises from “case-by-case adjudication,”

Pet. App. 15a, and was not issued until 2015, postdat-

ing petitioner's crime by nearly six years, id. at 27a-

28a. Given that the conduct at issue is entirely legal in

43 states, is a felony in just three, and is deemed “sex-

ual abuse” in just one (Oregon, where it is punishable

only as a misdemeanor), see Petr. Br. 20-21; Pet. 25-27

& n.7; Or. Rev. Stat. § 163.415, it was hardly foreseea-

ble that the BIA would later by adjudication deem the

crime to be “sexual abuse of a minor” constituting an

“aggravated felony.”

Second, the Babbitt footnote emphasized that that

case involved a “facial challenge[]” to the agency's

regulation, not any “specific factual dispute” in a par-

ticular case. 515 U.S. at 704 n.18. As Judge Sutton

has noted, that is not the sort of setting in which one

would expect the rule of lenity to come into play to

begin with. Facial challenges are “the sorts of claims

that raise arguments—say that the regulation exceed-

ed the agency’s authority and thus was unenforceable

in all its applications—that have no connection to the

rule of lenity.” Pet. App. 23a-24a; see also Carter, 736

19

F.3d at 735 (Sutton, J., concurring) (similar). This case

does not involve a facial challenge.

Third, in Babbitt, Congress had expressly made it a

crime to violate any “regulation issued in order to im-

plement” the various statutory provisions at issue. See

16 U.S.C. § 1540(b)(1). As a result, two of the main

concerns stemming from deference to agency interpre-

tation of hybrid statutes—the clear-statement rule and

the nondelegation doctrine, see supra pp. 15-16—were

not implicated, and the separation-of-powers concern

carried far less weight. Here, by contrast, no statute

contemplates that the BIA’s pronouncements will carry

criminal consequences. See Petr. Br. 43-44.

Il. EVEN IF THE CHEVRON FRAMEWORK

APPLIES, DEFERENCE TO THE BIA’S

INTERPRETATION IS NOT

WARRANTED HERE

Even if the Chevron framework may apply to agen-

cy interpretations of some hybrid statutes, deference is

not appropriate in this case. This is so, above all, be-

cause the BIA’s interpretation is not a reasonable one

and reflects a fundamental misapplication of the cate-

gorical approach. See Petr. Br. 14-34, 44-47. Amicus

highlights two additional reasons why, even under the

Chevron framework, no deference is warranted here.

A. The BIA Does Not Administer

Criminal Laws and Lacks Relevant

Criminal Law Expertise

Chevron deference rests, in significant part, on re-

spect for “practical agency expertise” in the subject

matter of the statute the agency it administers. Pen-

sion Benefit Guaranty Corp., 496 U.S. at 651-52; see

20

also Chevron, 467 U.S. at 863-65. Considerations of

agency expertise in this case, however, confirm that no

deference is warranted.

Under Chevron, courts may afford deference to an

agency’s interpretation of a “statute which it adminis-

ters.” 467 U.S. at 842. But agencies do not “adminis-

ter” criminal laws. Courts alone are charged with that

responsibility. Abramski v. United States, 134 S. Ct.

2259, 2274 (2014) (“[C]riminal laws are for courts, not

for the Government, to construe.”). Indeed, this Court

has “never held that the Government's reading of a

criminal statute is entitled to any deference.” United

States v. Apel, 134 S. Ct. 1144, 1151 (2014) (emphasis

added). The same is true of hybrid statutes with civil

and criminal applications. See, e.g., Crandon, 494 U.S.

at 177 (Scalia, J., concurring in the judgment) (“The

law in question, a criminal statute, is not administered

by any agency but by the courts.”). To be sure, the BIA

administers the civil provisions of the LNA, but it does

not (and cannot) administer those laws in their crimi-

nal settings. See, e.g., id. (explaining that administra-

tive necessity is “not the sort of specific responsibility

for administering the law that triggers Chevron”).

Chevron itself shows why courts should not defer to

the BIA’s interpretation here. This Court explained in

Chevron that, in administering the Clean Air Act, the

Environmental Protection Agency is charged with

“implementing policy decisions in a technical and com-

plex arena.” 467 U.S. at 863. The Court observed that

“[plerhaps” Congress left to the agency the ability to

“strike the balance” between competing interests in

this area because “those with great expertise and

charged with responsibility for administering [the law]

21

would be in a better position to do so.” Id. at 865. By

contrast, “[j]udges” were “not experts in the field.” /d.

The situation here is far different. As several courts

of appeals have recognized, “[t]he BIA has no special

expertise by virtue of its statutory responsibilities in

construing state or federal criminal statutes.” Mar-

molejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.

2009); see also, e.g., Efstathiadis v. Holder, 752 F.3d

591, 594 (2d Cir. 2014); Francis v. Reno, 269 F.3d 162,

168 (3d Cir. 2001). That is especially true here. The

phrase “sexual abuse of a minor” is not an immigration

term of art. Rather, as this Court has recognized, it is

a “generic crime[]” that calls for application of the

categorical approach. Nijhawan v. Holder, 557 U.S.

29, 37 (2009).

The categorical approach is difficult enough for

courts to apply. See, e.g., Descamps v. United States,

133 S. Ct. 2276, 2287 (2013) (noting that lower court's

“new way’ of applying the categorical approach “has no

roots in our precedents”). But it is at least the sort of

legal-reasoning task in which courts have expertise.

By contrast, there is no reason to believe executive

agencies have any such expertise, and every reason to

doubt whether they do, as this case illustrates.

The BIA’s application of the categorical approach

here would have earned it an “F” in law school. The

BIA relied on non-legal sources and its own policy

beliefs rather than consulting state and federal crimi-

nal laws and the Model Penal Code. See Petr. Br. 9-10.

The BIA also considered it “noteworthy” that “[i]f we

were to conclude that the offense at issue here is not

categorically ‘sexual abuse of a minor,’ sexual offenders

who were prosecuted under this statute for victimizing

22

children under the age of 16 would not be removable

for having committed a ‘sexual abuse of a minor’ ag-

gravated felony under the Act.” Pet. App. 39a n.7.

That flawed reasoning turns the categorical approach

on its head. Rather than considering “the least of the

acts’ criminalized” under Penal Code section 261.5(c),”

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013), and

comparing that conduct to the generic offense, the BIA

identified the most culpable conduct and justified its

categorical treatment of section 261.5(c) on that basis.

Such errors show why the BIA has not offered a

permissible construction of the statute—and why its

constructions of section 1101(a)(43) are not proper

candidates for Chevron deference in the first place.

B. Affording Chevron Deference to the

BIA’s Interpretation Would Create

Significant Practical Difficulties for

Criminal Defense Lawyers and

Their Clients

One final reason for not deferring to the BIA’s in-

terpretation of section 1101(a)(43) is to ensure that the

provision is interpreted consistently over time, espe-

cially in its criminal applications. Because of the

unique constitutional obligations placed on criminal

defense counsel, affording Chevron deference to the

BIA’s interpretation of criminal laws will place an

immense burden on attorneys, to the detriment of their

clients.

Under Padilla, 559 U.S. at 367, defense attorneys

are required to advise their clients of the immigration

consequences of plea agreements. The categorical

approach facilitates the performance of this duty: it

23

“works to promote efficiency, fairness, and predictabil-

ity in the administration of immigration law” by ena-

bling noncitizens and their attorneys “to anticipate the

immigration consequences of guilty pleas in criminal

court, and to enter safe harbor guilty pleas that do not

expose the alien defendant to the risk of immigration

sanctions.” Mellouli v. Lynch, 135 S. Ct. 1980, 1987

(2015) (alterations and internal quotation marks omit-

ted).

Affording Chevron deference to the BIA’s interpre-

tation would eliminate those benefits and would in-

crease exponentially the difficulties criminal defense

attorneys would face in advising their clients of the

immigration consequences of criminal convictions.

Immigration law is “quite complex” to begin with, and

that is particularly true with respect to “the determi-

nation of whether a crime is an ‘aggravated felony.”

Padilla, 559 U.S. at 377-78 (Alito, J., concurring in the

judgment); see also id. at 378 (“[NJothing is ever sim-

ple with immigration law” (quoting R. MCWHIRTER,

ABA, THE CRIMINAL LAWYER'S GUIDE TO IMMIGRATION

LAW: QUESTIONS AND ANSWERS 130 (2d ed. 2006))).

The difficulties criminal defense attorneys face would

be magnified tenfold if the BIA’s criminal law pro-

nouncements received Chevron deference. Defense

attorneys would be required to be aware of ever-

shifting immigration law at the administrative level in

order to provide effective assistance of counsel to their

clients.

Indeed, the task is still more onerous: attorneys

would have an obligation to try to predict the BIA’s

future rulings that might receive Chevron deference.

In petitioner's case, for instance, his California convic-

tion came nearly six years before the BIA’s ruling. See

24

Pet. App. 27a-28a. Given the BIA’s approach here—in

which it relied upon an article in tiie Journal of Family

Planning Perspectives in determining that petitioner’s

conviction constituted “sexual abuse of a minor,” Pet.

App. 36a-36a—attorneys could well be forced to consult

far-flung, non-legal sources in trying to predict the

BIA’s future treatment of crimes. And that difficulty is

only exacerbated by the BIA’s frequent efforts ‘7 apply

its administrative rulings retroactively in other cases.

See generally Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1144-45 (10th Cir. 2016).

CONCLUSION

The judgment of the Court of Appeals for the Sixth

Circuit should be reversed.

Respectfully submitted,

DAVID MARKUS BENJAMIN J. HORWICH

Co-CHAIR, NACDL Counsel of Record

AMICUS COMMITTEE JOSHUA PATASHNIK

40 NW Third Street, PH1 DAVID Jd. FEDER

Miami, FL 33128 MUNGER, TOLLES & OLSON LLP

(205) 379-6667 560 Mission Street, 27th Floor

San Francisco, CA 94105

ben. horwich@mio.com

(415) 512-4000

DECEMBER 22, 2016