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

~~ Eiamreme Cos

od DEC 23 2016

ee No. 16-54 _QERICE OF Tae Osa

In the Supreme Court of the Gnited 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 AMICI CURIAE OF THE NATIONAL

IMMIGRANT JUSTICE CENTER AND THE

AMERICAN IMMIGRATION LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

CHUCK ROTH MICHAEL B. KIMBERLY

National Immigrant Counsel of Record

Justice Center KEVIN S. RANLETT

208 S. LaSalle Street MADELEINE L. HOGUE

Suite 1300 Mayer Brown LLP

Chicago, IL, 60601 1999 K Street, NW

(312) 660-1613 Washington, DC 20006

Counsel for National (202) 263-3000

mkimberly@

Immigrant Justice Center

mayerbrown.com

Counsel for amici curiae

additional counsel listed on inside cover

i TTI eg ane et AER ELLE DIOL A ALY SOLE TELM ME I

REBECCA SHARPLESS

MARK BARR

American Immigration

Lawyers Association

1331 G Street, NW

Ste. 300

Washington, DC 20005

(202) 507-7600

Counsel for the American

Immigration Lawyers Association

i

TABLE OF CONTENTS

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Introduction and Interest of the Amici Curiae .......... 1

Genenety Of AGAMA ic...0:c0vcessccnssenpepsevsncieaniansiaann 5

ABUT 0600 ccscesesesssnsnsstncensnervinaiaeeingaamna 7

[. The Court Construes Deportation Statutes

In Favor Of The Noncitizen Because The

Consequences Of Removal Are So Harsh. ........... 7

Il. The Government's Approach Would Read

“Aggravated Felony” To Cover Low-Level

Offenses For Which Congress Did Not

Intend To Impose Mandatory Removal............. 10

Ill. The Government’s Approach Would

Deprive Immigration Judges Of Discretion

To Consider Cancellation Of Removal Or

Asylum In Appropriate Cases. .................0:..:0008 15

A. An “aggravated felony” finding

precludes cancellation of removal or

GTI, cncocusnsinscncsscencassnsstadeapeaiadiamameia 15

B. The statutory structure indicates that

Congress intended to give immigration

judges discretion to resolve cases like

GR IID, ncecciiccccccoccssensssatsshvadacimmminensiaaanaaiae 22

Conclusion ..... naoe sbeosneskousweunecudieerseenonnansasliaaaanaa 27

rey

TABLE OF AUTHORITIES

Cases

Amaral v. INS,

EE GE. IED... ccccvcansectocouccencccoccs 17

Arguelles-Olivares v. Mukasey,

636 F.3d 171 (Gth Cir. 2008)................cc000.00000..... 17

Bell vy. United States,

ns scuascennanboonsccwess 8

Berhe v. Gonzales,

464 F.3d 74 (ist Cir. 2006) .................................. 22

Bonetti v. Rogers,

sc csscnnsonneosones aie 8

Carachuri-Rosendo v. Holder,

EEE a 11

Chang v. INS,

307 F.3d 1185 (9th Cir. 2002).....................00..0000 17

Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1150 (9th Cir. 2008).................... 24

Fernandez v. Mukasey,

544 F.3d 862 (7th Cir. 2008)................................ 17

Ferreira v. Ashcroft,

382 F.3d 1045 (9th Cir. 2004)........000 ccc 17

Fong Haw Tan v. Phelan,

rn sansosoeneninecs 7,9

INS v. Cardoza-Fonseca,

ae 7, 20, 21

INS vy. Errico,

Ec onctrietnicsemesinineicisandsoneaseees 5, 9, 10

Cases—continued

INS v. St. Cyr,

I i 2,7,9

INS v. Stevic,

"gS 2 Eee ener 20

Jordan v. De George,

I eet 18

K Mart Corp. v. Cartier, Inc.,

ei 15

United States ex rel. Klonis v. Davis,

a I, BD viccicteditniintnatnntismoesininnens 18

Knutsen v. Gonzales,

429 F.3d 733 (7th Cir. 2005)....................ccecccesse- 17

Konou v. Holder,

750 F.3d 1120 (9th Cir. 2014)............................., 20

Kuhali v. Reno,

a EL es ae g

Leocal v. Ashcroft,

I a 8

Lopez-De Rowley v. INS,

253 F.. App’x 62 (2d Cir. 2007).................0...0....... 17

Matter of C-V-T-,

py Es oy I i 16

Matter of Colon,

2004 WL 2374484 (BIA 2004)........... co.cc eeee eee 14

Matter of D-M-,

2016 WL 316705 (AAO 2016) ..............0..cccccccceeee 23

Matter of Esquivel-Quintana,

26 I. & N. Dec. 469 (BIA 2015) ......cccccccececcesessesees 24

iv

Cases—continued

Matter of Flores-Gomez,

2004 WL 2374449 (BIA 2004)...........ccccceceeseeeeoee 17

Matter of Wadud,

19 I. & N. Dec. 182 (BIA 1984)................0....:cc000 16

Matter of Marin,

16 I. & N. Dec. 581 (BIA 1978)....................0..0000- 16

McBoyle v. United States,

I cieincitensnsihinbncinitisisinigdeaninataniinasattianenentten 8

Minto v. Mukasey,

302 F. App’x 13 (2d Cir. 2008) ..............-.......0...00- 17

Moncrieffe v. Holder,

I a a sduitemeelle 22, 23

People v. Benitez,

2009 WL 1564963 (Cal. Ct. App.

I ns cdusianbiaeaie 13

Perriello v. Napolitano,

S78 F.2d 196 Cha Cir. S008) .......0..cccccs.cecccccccccccecces 9

Shurney v. INS,

201 F. Supp. 2d 783

ST adi sneetiebenimapenntiseneieitimenbnenddets 17

Taylor v. United States,

acini ccinccceinitadntniainiatiicintslinids 2,6

United Sav. Ass'n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd.,

ERS Sa ase 15

United States v. Bass,

ce miemnneenenanbeas s

Valenzuela-Zamorano v. Ashcroft,

11 F. App’x 806 (9th Cir. 2001) ..................-........ 17

Vv

Statutes, Regulations, & Rules

8 U.S.C.

i i cirncectnasianesincnonnemnmmevenenngiiinliniens passim

a. trcnatnecncnnimnenninntieabnitenpeecnsii 2, 8,11

To sacscncaseinaniiitidatanenaeie 21

ns cnscscmesienenansonnsendipianianianeinmiatindtsi 21

a arises cenietienteneconeeneaniimemnanionndinndensiih 1,9

ITT i dcinisindeiapennaiinanennensoiioniooniien 1, 9, 22

icici hinds cecirrmerisotnienainagnniidoniemninaninnrensnhenel 21

I bros scniicndeedintpedinnnnnnimeantenianraniint 9

i I adiehinnetnbentncniedeanenievhstsinninisuembenniotenes 16

das ortnisdnnenacutesdienanaeniananaeintcnampinndiieis 1,9

I citciicenitisectincennetiintiagieniininsninineneencasindl 1,9

I I ica scinsctaidienmenleienpnanndimiaiitinidies 25

ee eccinvisticieiaaninsctininateasiiniitiiigtnnnnianinenanniia 21

18 Pa. Cons. Stat. § 312G(a)(8)..............:-c-cecceecoeeeeeees 14

Ariz. Rev. Stat. Ann.

itineraries nneiaeenlinsausieieeomniieeiiinils 6, 11, 12

ID -assiniinicciciieiacliinsepeacencinlseiiineiaiibiebdiadaeiinaial 6

REE SRST AN ERE RE Rs RN 12

EEE TSR eRe PERS ME eae ea 12

iii cial dimsneiceetcaienienmneieaitien 6, 12

Cal. Penal Code

en shaiehnpusianebenas 13, 23

anal 11

EE eacisedibanmniadeieoinaiebaadainae passim

SAT coascapsinsebesseninsdonmstiasdpimndnineiatamasdectsiigh 12, 13

i EE ichiiciniinsanisidninctacuanainidcinnasteseusdbeduieisnmmetesinniinas 12

Idaho Code § 18-6101(2)...............0000-s-ssssesescssereeseseees 11

vi

Statutes, Regulations, & Rules—continued

Minn. Stat. § 609.344, subd. 1(b)....................0....0.... 25

BUDD. Cam. Cade © 1B. B-BD-GG ..n..cccccsccccccccccscvsesescccsees 13

N.D. Cent. Code § 12.1-20-05(1) .........0... 0... ccceccceeeeee. 11

ic ho. Be Oe i ircecnneccnccensscsgencesivonnnessedivebudd 25

ee ea Sr I BR iciccnvenconintcsannmtebedsagentenncttios 25

a ls Or Sa vccccnccnsntsiseuncminseeiereicsseens 11

BN iiss crcatetdeinniommsatntieniceennidahemmanitenbenanis 1

oe UP US SS , een sce

Wis. Stat. § 948.02..............cccccccescceececessssseseesereeeseeces 13

es i EE icitecscocomitednsettnipiiaiddeasinnideanennce 11,13

Other Authorities

Barack Obama, Presidential Memorandum—

Supporting New American Service Mem-

bers, Veterans, and their Families aia

ME ee ee eS MeN Sin 0ae Sane aS 19

Irene Scharf, Un-Torturing the Definition of

Torture and Employing the Rule of

Immigration Lenity, 66 RUTGERS L. REV.

Be akictsenehesicectbadebediaittieebatintliiatl ans dain nantes essinlaons 2,6

Kay L. Levine, The Intimacy Discount:

Prosecutorial Discretion, Privacy, and

Equality in the Statutory Rape Caseload,

By Bcd. Ge GD vnccccrrccscsccccssscevcovcnssescone 14

SETH FREED WESSLER, APPLIED RESEARCH

CENTER, SHATTERED FAMILIES: THE PERI-

LOUS INTERSECTION OF IMMIGRATION EN.

FORCEMENT AND THE CHILD WELFARE SyYs-

a auecemescaniialean 16

Vii

Other Authorities—continued

PROTOCOL RELATING TO THE STATUS OF

REFUGEES art. 33, Jan. 31, 1967,

Oe 21

CONVENTION RELATING TO THE STATUS

OF REFUGEES art. 33(2), July 28,

Se ee, 21

INTRODUCTION AND INTEREST

OF THE AMICI CURIAE

The National Immigrant Justice Center and the

American Immigration Lawyers Association respect-

fully submit this brief as amici curiae to alert the

Court to the severe—and unintended—consequences

that the government’s expansive reading of the ag-

gravated-felony statute would create.!

Congress knows well that deportation causes

great hardship. Deportation divides families and can

deprive them of their means of support. It separates

children from their parents. And it can expose the

deported person to a risk of persecution and death

upon return to his or her country of origin. In recog-

nition of these hardships—and in acknowledgement

of our Nation’s obligations under the 1967 Protocol

Relating to the Status of Refugees—-Congress has

created several avenues for individuals facing depor-

tation to seek relief. Among these are laws providing

for cancelation of removal and asylum, which grant

immigration judges discretionary authority to halt

removal in cases where the nation’s interests and

values would be better served by allowing the noncit-

izen to remain in the United States. See 8 U.S.C.

§§ 1158(b)(2)(A)Gi), =(B)G); id. =~ §§ 1229b(a)(3),

(b)(1)(C). Congress intended these avenues for relief

to be open even if the individual has been convicted

of a crime—uniless the crime is an “aggravated felo-

ny” as defined in 8 U.S.C. § 1101(a)(43).

' Pursuant to Rule 37.6, amici affirm that no counsel for a par-

ty authored this brief in whole or in part and that no person

other than amici and its counsel made a monetary contribution

to its preparation or submission. Counsel for all parties have

consented to the filing of this brief, in letters that are on file

with the Clerk or submitted contemporaneously with this brief.

2

The government would block access to these ave-

nues for requesting relief from removal by urging an

expansive definition of “aggravated felony.” The

question before the Court is whether convictions un-

der the seven state statutes that criminalize consen-

sual sexual intercourse between a 21-year-old and a

17-year-old or a 20-year-old and a 16-year-old (such

as California Penal Code § 261.5(c)) constitute the

“aggravated felony” of “sexual abuse of a minor” un-

der Section 1101(a)(43)(A)—and therefore constitute

grounds for mandatory removal. As a matter of stat-

utory interpretation, the answer is no.

Among other reasons, petitioner has explained

that, under the categorical approach this Court out-

lined in Taylor v. United States, 495 U.S. 575 (1990),

statutes like California Penal Code § 261.5(c) fail

well outside the definition of “aggravated felonf[ies].”

Amici agree with petitioner in all respects.

Amici submit this brief to elaborate on one par-

ticular reason why petitioner is correct: the govern-

ment’s interpretation of the aggravated-felony stat-

ute contravenes this Court’s longstanding rule that

ambiguities in deportation statutes should be con-

strued in favor of the noncitizen because of the sever-

ity of the consequences of deporting ummigrants

whom Congress intended to be permitted to seek

permission to remain. See, e.g., INS v. St. Cyr, 533

U.S. 289, 320 (2001). This canon of statutory con-

struction is sometimes called the rule of “immigra-

tion lenity.” E.g., lrene Scharf, Un-Torturing the Def-

inition of Torture and Employing the Rule of Immi-

gration Lenity, 66 RUTGERS L. REV. 1, 26-33 (2013).

The government’s reading of Section 1101-

(a)(43)(A) would jettison this principle. As a practical

matter, the government’s reading would expand the

3

category of “aggravated felonies” to include conduct

that is not aggravated, is not a felony, and, in many

states, is not even criminalized. Amici agree with pe-

titioner that the government does not point to any-

thing in the text or legislative history of the statute

demonstrating that Congress intended such an arbi-

trary and counterintuitive result, and that the gov-

ernment’s rationale flouts the rule of lenity applied

in both criminal] and immigration cases. Petr. Br. 14-

29, 38-43, 45-48.

The government’s approach also runs counter to

the statutory structure, which vests immigration

judges with discretion to decide eligibility for asylum

and cancellation of removal in most cases. The gov-

ernment’s assertion that conduct governed by low-

level statutes such as Section 261.5(c) constitutes an

“aggravated felony” would prevent immigration

judges from weighing the equities in precisely the

sorts of cases that Congress intended them to have

discretion. To the extent that doubt remains, the rule

of immigration lenity applies—weighing conclusively

against the government’s arbitrary and counterintui-

tive approach.

Amici have a deep understanding of the practical

implications of this case for individuals who find

themselves in removal proceedings. The National

Immigrant Justice Center (NIJC) is a program of the

Heartland Alliance for Human Needs and Human

Rights, a non-profit corporation headquartered in

Chicago, Illinois. NIJC is dedicated to ensuring hu-

man rights protections and access to justice for all

immigrants, refugees, and asylum seekers. By part-

nering with more than 1,000 attorneys from the Na-

tion’s leading law firms, NIJC provides direct legal

services to approximately 8,000 individuals annually.

oo

4

This experience informs NIJC’s advocacy, litigation,

and educational initiatives, as it promotes human

rights on a local, regional, national, and internation-

al stage. NIJC has a substantial interest in the issue

now before the Court, both as an advocate for the

rights of noncitizens generally and as the leader of a

network of pro bono attorneys who regularly repre-

sent noncitizens in court. Given NIJC’s experience

and perspective, it is well-situated to assist the Court

in understanding how the “aggravated felony” issue

will impact individuals fleeing religious and political

persecution, as well as how it will affect others seek-

ing relief from deportation after spending most of

their lives here.

The American Immigration Lawyers Association

(AMA) is a national organization composed of more

than 13,000 immigration lawyers throughout the

United States, including lawyers and law school pro-

fessors who practice and teach in the field of ummi-

gration and nationality law. AILA’s objectives are to

advance the administration of law pertaining to im-

migration, nationality, and naturalization; to culti-

vate the jurisprudence of the immigration laws; and

to facilitate the administration of justice and elevate

the standard of integrity, honor, and courtesy of

those appearing in immigration, nationality, and

naturalization matters. AILA’s members regularly

appear in immigration proceedings, often on a pro

bono basis.

Amici share a significant interest in ensuring the

fair administration of federal immigration laws. As

leaders in the field and as advocates for the rights of

immigrants and refugees, amici are uniquely quali-

fied to address the practical consequences of the gov-

ernment’s position in this case and how those conse-

5

quences underscore the need to apply this Court’s

rule of immigration lenity.

SUMMARY OF ARGUMENT

1. This Court has long recognized that provisions

of deportation statutes (like the “aggravated felony”

definition) should be construed in favor of the noncit-

izen because the consequences of removal are so

harsh. This canon of construction—sometimes known

as “the rule of immigration lenity” (e.g., Scharf, 66

Rutgers L. Rev. at 26)—has particular force where

the provision under consideration “was designed to

accomplish a humanitarian result” (JNS v. Errico,

385 U.S. 214, 225 (1966)). That is the case here. The

statutes providing for cancellation of removal and

asylum were designed to avoid overly harsh results,

protect the interests of United States citizens who

would suffer due to a noncitizen’s removal, and honor

our countrys commitment to international law.

Where ambiguous, these statutes should be inter-

preted in favor of the noncitizen.

2. The government proposes an overly-broad

reading of “aggravated felony,” one that would sweep

in minor offenses, including conduct that many

states do not even forbid. As petitioner demonstrates,

only seven states criminalize consensual sexual in-

tercourse between a 21-year-old and a 17-year-old or

between a 20-year-old and a 16-year-old. Petr. Br.

20-21. Of the seven states that criminalize this con-

duct, only two states have chosen to designate that

crime a “felony.” Jd. at 33. And regardless of the felo-

ny or misdemeanor designation, states tend to place

such offenses on the lower rungs of the punitive hi-

erarchy. Arizona, for example, criminalizes sexual

conduct with older minors as a “class 6 felony” pun-

ishable by as little as four months of incarceration.

6

Ariz. Rev. Stat. Ann. §§ 13-1405, 13-702(D). As a re-

sult of this low-level treatment, many individuals

who would be designated “aggravated felons” under

the government’s definition received only a minor

custodial sentence for their underlying conviction—

or no jail time at all.

Amici agree with petitioner that Taylor foreclos-

es the determination that conduct criminalized in on-

ly seven jurisdictions constitutes an “aggravated fel-

ony” under Section 1101(a)(43). See Taylor v. United

States, 495 U.S. 575, 598 (1990) (relying on the law

of the majority of states, the federal government, and

the Model Penal Code to determine a generic defini-

tion of the offense at issue). If the Court nonetheless

finds the aggravated-felony provision at issue here

ambiguous, the Court should apply the longstanding

rule on interpreting ambiguities in deportation stat-

utes in favor of the noncitizen. This principle is espe-

cially pertinent here because the title and nature of

the aggravated-felony statute suggest that Congress

intended to exclude low-level conduct, such as the

conduct covered by California Penal Code § 261.5(c).

With such commonsense indicators trending towards

exclusion, to read the statute otherwise would be

counterintuitive—a result that the principle of lenity

is designed to avoid.

3. Finally, a narrow reading of the “aggravated

felony” category is supported by the statutory struc-

ture, which makes access to discretionary relief the

rule—not the exception—for long-term permanent

residents. This structure reflects a congressional de-

termination that, in most cases, immigration judges

should have discretion to assess the gravity of an of-

fense under the circumstances. For example, for can-

cellation of removal, the relevant circumstances may

7

include prior criminal records (or lack thereof),

whether the offense was minor or serious, how long

ago it was committed, and whether the applicant has

been rehabilitated—along with other factors such as

military service, character, family ties, employment

history, and hardship to family members. Immigra-

tion judges are well-suited to make these sorts of de-

terminations, exercising discretion based on the to-

tality of circumstances, The government's interpreta-

tion of Section 1101(a)(43) would prevent the exer-

cise of discretion in cases that merit relief,

demanding deportation in circumstances where it is

manifestly unwarranted.

ARGUMENT

I. THE COURT CONSTRUES DEPORTATION

STATUTES IN FAVOR OF THE NONCITIZEN

BECAUSE THE CONSEQUENCES OF RE-

MOVAL ARE SO HARSH.

This Court has recognized a “longstanding prin-

ciple” of “construing any lingering ambiguities in de-

portation statutes in favor of the |noncitizen].” INS v.

St. Cyr, 533 U.S. 289, 320 (2001) (quoting INS v.

Cardoza-Fonseca, 480 U.S. 421, 449 (1987)). This

principle ensures that the harsh consequences re-

sulting from deportation are visited only upon those

whom Congress truly intended to be subject to re-

moval. Because “deportation is a drastic measure

and at times the equivalent of banishment [or] exile,”

this Court “will not assume that Congress meant to

trench on [a noncitizen’s] freedom beyond that which

is required by the narrowest of several possible

meanings of the [statutory language].” Fong Haw

Tan v. Phelan, 333 U.S. 6, 10 (1948).

8

This canon of construction is rooted in the same

fundamental notions of fairness and due process un-

derlying the doctrine of criminal lenity. If an ambigu-

ity in a deportation statute regarding the impact of a

past offense on removability were suddenly inter-

preted against noncitizens, the effective penalty for

that offense would be retroactively increased. But as

this Court has explained, “a fair warning should be

given to the world in language that the common

world will understand, of what the law intends to do

if a certain line is passed.” United States v. Bass, 404

U.S. 336, 348 (1971) (quoting McBoyle v. United

States, 283 U.S. 25, 27 (1931)). Indeed, this Court

has repeatedly relied upon the criminal rule of lenity

in immigration cases. See, e.g., Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004) (“Even if [the statute]

lacked clarity on this point, we would be constrained

to interpret any ambiguity in th» statute in [the

noncitizen’s] favor,” whether “in a criminal or non-

criminal context.”); Honetti v. Rogers, 356 U.S. 691,

699 (1958) (“ambigyity” in Anarchist Act of 1918

must be “resolved in favor of lenity” (quoting Bell v.

United States, 349 U.S. 81, 83 (1956))).?

As petitioner here has demonstrated, whether to

adopt the government’s interpretation of the phrase

“aggravated felony” in Section 1101(a)(43)(A)—which

would sweep in offenses under the laws of a handful

of states criminalizing sexual contact between 21 and

2 Amici agree with petitioner that, as a hybrid statute with

criminal and civil implications, the aggravated felony definition

is subject to criminal lenity. Petr. Br. 38-43. But even without

considering the rule of criminal lenity, the results in Leocal and

Bonetti were consistent with—and required by—this Court's

rule that deportation statutes should be interpreted in favor of

the noncitizen.

9

17 year olds—is not a close question. Petr. Br. 14-35.

But even if the issue were in doubt, this Court’s rule

of lenity for immigration statutes requires that doubt

to be resolved against the government’s position.

Like the provisions addressed in St. Cyr and

Fong Haw Tan, the “aggravated felony” provisions at

issue here impose devastating consequences on law-

ful permanent residents and asylum seekers alike. A

person convicted of an “aggravated felony” is deport-

able under 8 U.S.C. § 1227(a)(2)(A){iii). Moreover,

when deportation proceedings are instituted on the

basis of an aggravated felony, removal is mandatory;

the noncitizen cannot seek discretionary relief such

as asylum or cancellation of removal. Jd. §§ 1158-

(b)(2)(A)Gi), (B)G); id. §§ 1229b(a)(3), (b)(1)(C). Even

worse, because courts have imposed no statute of

limitations or ex post facto protections to limit these

consequences, a noncitizen may be deported based on

the subsequent reclassification of an offense as an

aggravated felony many years after the offense was

actually committed. See id. §§ 1227(a)(2)(A)(iii); see

also, e.g., Perriello vy. Napolitano, 579 F.3d 135, 137

(2d Cir. 2009) (“We acknowledge the significant

hardship that Perriello and his family will face as a

result of the unaccountable delay in the decision to

seek his removal decades after his conviction, and

notwithstanding his evidently lawful and productive

life in the interval.”); Kuhali v. Reno, 2€6 F.3d 93,

110-111 (2d Cir. 2001) (similar).

The rule of immigration lenity has particular

force where, as here, the statute at issue “was de-

signed to accomplish a humanitarian result.” INS v.

Errico, 385 U.S. 214, 225 (1966). Errico involved an

INA provision providing for removal of noncitizens

who had originally procured entry into the United

10

States by fraud. Jd. at 215. The provision contained

an exception for the spouse, parent, or child of a

United States citizen or lawful permanent resident

so long as the person seeking an exception had been

“otherwise admissible at the time of entry.” Ibid. The

Court interpreted the term “otherwise admissible” in

favor of the noncitizen,® explaining that the excep-

tion should be read broadly “in the light of its hu-

manitarian purpose of preventing the breaking up of

families composed in part at least of American citi-

zens.” Id. at 225.

The statutes providing for cancellation of remov-

al and asylum mirror the structure of the provision

analyzed in Errico. They were enacted with humani-

tarian goals in mind: avoiding overly harsh results,

protecting citizens who would suffer if a noncitizen

were removed, and ensuring the safety of refugees

fleeing persecution. The denial of a request for can-

cellation of removal or asylum results in the ultimate

immigration consequence—deportation. Thus, where

ambiguous, these provisions should be interpreted in

favor of the noncitizen.

ll. THE GOVERNMENTS APPROACH WOULD

READ “AGGRAVATED FELONY” TO COVER

LOW-LEVEL OFFENSES FOR WHICH

CONGRESS DID NOT INTEND TO IMPOSE

MANDATORY REMOVAL.

This Court has cautioned against interpreting

the “aggravated felony” provision to encompass of-

8’ The Court held that a visa applicant who lied about his na-

tionality to avoid quota restrictions was “otherwise admissible

at the time of entry” even though disclosing his correct nation-

ality would have resulted in the denial of his application.

Errico, 385 U.S. at 224-2265.

11

fenses that may be neither aggravated nor felonies—

a result that “the English language tells us not to

expect.” Carachuri-Rosendo v. Holder, 560 U.S. 563,

575 (2010). The government's approach in this case

ignores that warning. Instead, the government pro-

poses to interpret Section 1101(a)(43)(A) as sweeping

in low-level offenses, including misdemeanors, in-

volving conduct that is not even a crime in most ju-

risdictions. As petitioner demonstrates, federal law

does not criminalize consensual sexual intercourse

between a 21-year-old and someone who is almost 18.

Petr. Br. 17-19. Nor does the Model Penal Code, and

nor do the vast majority of states. Id. at 20-21. In-

deed, while every state criminalizes sex between

someone under 16 and a person more than four years

older, only seven states criminalize the least-

culpable conduct at issue here. Ibid.

The immigration consequences of an “aggravated

felony” conviction are vastly disproportionate to the

culpability associated with violations of statutes such

as California Penal Code § 261.5(c). Of the seven

States that criminalize consensual sexual inter-

course between a 21-year-old and a 17-year-old, only

two States have chosen to designate that crime a

“felony.” Ariz. Rev. Stat. Ann. § 13-1405; Idaho Code

§ 18-6101(2). Four states deem the offense a misde-

meanor. N.D. Cent. Code § 12.1-20-05(1); Or. Rev.

Stat. § 163.415(1); Va. Code Ann. § 18.2-371; Wis.

Stat. § 948.09. And one (California) provides for felo-

ny or misdemeanor charges at the discretion of the

prosecutor. Cal. Penal Code § 261.5(b). Although

state-law felony and misdemeanor designations may

not be themselves determinative of whether particu-

lar conduct is an “aggravated felony” under the INA,

they are certainly relevant insofar as they reflect a

considered determination by the States as to the na-

12

ture of consensual sexual intercourse between an

older teenager and someone relatively close in age.

States reasonably treat it as a low-level crime de-

serving of low-level punishment, not a sex-abuse

crime meriting harsher criminal sanction.

It is instructive, moreover, that regardless of the

felony or misdemeanor designation assigned, States

tend to situate statutes such as California Penal

Code § 261.5(c) on the lower rungs of the punitive hi-

erarchy. Arizona, for example, criminalizes sexual

conduct with older minors as a “class 6 felony” pun-

ishable by as little as 4 months of incarceration. Ariz.

Rev. Stat. Ann. §§ 13-1405, 13-702(D). By contrast,

sexual conduct with younger minors, such as a 13-

year-old, is a class 2 felony punishable with between

3 and 12.5 years imprisonment—or even longer, de-

pending upon the age of the perpetrator. Id. § 13-

702(A), (C), (D). Thus, although Arizona applies the

felony designation to sexual conduct with older mi-

nors—such as the 16-year-old at issue in this case—

it does not treat such conduct as an “aggravated” fel-

ony and recognizes that felony-level punishment may

not be appropriate in every case.

Similarly, although California Penal Code

§ 261.5(c) affords prosecutors discretion to determine

whether a felony or misdemeanor charge is warrant-

ed, the statute as a whole allocates culpability differ-

ently based on the age of the child and the perpetra-

tor. Compare Cal. Penal Code § 261.5(c) (minor more

than three years younger than the perpetrator), with

id. § 261.5(d) (minor younger than 16 when the per-

petrator is 21 or older). Predictably, the section in-

volving a wider age gap is subject to stricter sentenc-

ing guidelines. Cal. Penal Code §§ 261.5(d), 1170¢h).

For example, in this case, petitioner was 20 years old

13

when he had sexual! contact with his 16-year-old girl-

friend, and although he was charged with a felony

violation of California Penal Code § 261.5(c), he was

not charged with the higher offense of violating Cali-

fornia Penal Code § 261.5(d). Petr. Br. 6.

Some States designate the relevant conduct a

misdemeanor rather than a felony. Petr. Br. 33. But

they also reserve harsher penalties for offenses in-

volving sexual relationships with younger minors.‘

As a result of this low-level treatment, many in-

dividuals who would be designated “aggravated fel-

ons” under the government’s definition received only

a minor custodial sentence for their underlying con-

viction, or no jail time at all. In some cases, for ex-

ample, the criminal sentence was limited to proba-

tion or community service. See, e.g., People v. Beni-

tez, 2009 WL 1564963, at *1 (Cal. Ct. App. June 4,

2009) (three years of probation and no jail time).

Other cases involve minimal jail time. In one

case, a noncitizen applying for asylum and cancella-

tion of removal! had been convicted at the age of 18 of

a misdemeanor violation of California Peal Code

§ 261.5 resulting from his consensual relationship

with his girlfriend. He was sentenced to 18 days in

jail (with credit for 12 days of time served), along

with three years of probation. Under the govern-

on ——s

* See, e.g., N.D. Cent. Code § 12.1-20-05 (sexwal act with a mi-

nor age fifteen or older is a clase A misdemeanor, waless the

perpetrator is twenty-two years of age or older, in which case it

is a clase C felony); Wis. Stat. §§ 948.09, 948.02 (sexual inter-

course with a minor age 16 or older ie d@ Clase A misdemeanor,

but sexual intercourse with a minor under the age of 16 is a

Class B or Claas C felony, depending on the age oithe child).

14

ment’s approach, his offense would be deemed an

“aggravated felony.”®

In some cases, the sexual conduct at issue be-

tween the noncitizen and his teenage girlfriend falis

well short of intercourse. See, e.g., 18 Pa. Cons. Stat.

§ 3126(a)(8). Under the government's approach, of-

fenses under these statutes too would be deemed to

be aggravated felonies, despite the low-level nature

of the conduct. See, e.g., Matter of Colon, 2004 WIL

2374484, at *1 (BIA 2004).

In short, the government’s interpretation of Sec-

tion 1101(a)(43) would deem conduct that few states

criminalize and that often receives only minor penal-

ties in the handful of states that do prohibit it as an

“aggravated felony.” That counterintuitive result

confirms that the government is mistaken. But even

if there were any doubt, that doubt should be re-

solved in favor of petitioner, in accordance with this

Court's longstanding rule that ambiguities should be

resolved in favor of the noncitizen.

° California prosecutors report exercising their discretion to

choose between felony and misdemeanor charges by charging

what they perceive to be low-culpability cases as misdemeanors,

thereby further mitigating the consequences of conviction. Kay

L.. Lavine, The Intimacy Discount: Prosecutorial Discretion, Pri-

vacy, and Equality in the Statutory Rape Caseload, 55 EMORY

Ld. 691, 730-731 (2006) (compiling in-person interviews and

survey data from district attorneys’ offices acrose California).

Characteristics that may warrant misdemeanor treatment in-

chude cooperation by the defendant, supportive behavior by the

defendant —-¢.g., child support or marriage—-and the absence of

violence, pregnancy, multiple victims, manipulation, coercion,

or # position of trust. [bid. Additionally, many “[clases with six-

teen and seventeen year-old victims or twenty year-old defend-

ants * * * are treated as misdemeanors or result in lenient sen-

tences.” Id. at 744.

15

ill. THE GOVERNMENT'S APPROACH WOULD

DEPRIVE IMMIGRATION JUDGES OF DIS-

CRETION TO CONSIDER CANCELLATION

OF REMOVAL OR ASYLUM IN APPRO-

PRIATE CASES.

Any lingering uncertainties on the question pre-

sented are further “clarified by the remainder of the

statutory scheme.” United Sav. Assa’n of Tex. v. Tim-

bers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371

(1988). “In ascertaining the plain meaning of the

statute, the court must look to the particular statu-

tory language at issue, as well as the language and

design of the statute as a whole.” K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988). Here, the

statutory structure confirms that petitioner's reading

of the statute is correct.

Congress drafted immigration law to avoid overly

harsh results while still permitting the effective po-

licing of our Nation’s borders. To achieve these goals,

Congress provided immigration judges with discre-

tion to make judgment calls in light of the facts and

circumstances of the case. But an “aggravated felo-

ny” conviction removes that discretion, mandating

removal regardless of how compelling the counter-

vailing equities may be. To read such a provision

broadly would upset the statutory scheme because it

would divest immigration judges of discretion in pre-

cisely the sorts of cases where exercise of discretion

is most warranted. This is not a result that Congress

could have intended.

A. An “aggravated felony” finding precludes

cancellation of removal or asylum.

1. As petitioner's case demonstrates, a determi-

nation that a particular offense is an “aggravated

16

felony” has catastrophic consequences, even for long-

standing lawful permanent residents of the United

States. For example, a person convicted of an aggra-

vated felony may not seek “cancellation of removal.”

8 U.S.C. § 1229b(a). Cancellation of removal is a

form of discretionary relief through which individu-

als who have lived in the United States for at least

seven years following their admission, and who have

been lawful permanent residents for at least five

years, may request an order allowing them to stay in

the United States. Equitable factors relevant to an

immigration judge’s exercise of discretion under this

provision include family ties within the United

States, residency of long duration, evidence of hard-

ship to the respondent and family if deportation oc-

curs, service in the Armed Forces, history of em-

ployment, existence of property or business ties, ex-

istence of value and service to the community, proof

of genuine rehabilitation if a criminal record exists,

and evidence attesting to a respondent’s good moral

character. See, e.g., Matter of C-V-T-, 22 I. & N. Dec.

7, 11 (BIA 1998); Matter of Wadud, 19 1. & N. Dec.

182, 186-187 (BIA 1984); Matter of Marin, 161. & N.

Dec. 581, 584-585 (BIA 1978).

Congress’s provision for cancellation of removal

reflects its understanding that the consequences of

removal are felt as much by the noncitizen’s family,

friends, and community as by the noncitizen himself.

Deporting a child’s mother or father breaks apart a

family forever and may leave young American citi-

zens to fend for themselves or in foster care, from

whence they face “formidable barriers to reunifica-

tion with their families.” SETH FREED WESSLER, AP-

PLIED RESEARCH CENTER, SHATTERED FAMILIES: THE

PERILOUS INTERSECTION OF IMMIGRATION ENFORCE-

MENT AND THE CHILD WELFARE SYSTEM 6 (2011) (of-

17

fering a “conservative[] estimate[]” of “at least 5,100

children currently living in foster care whose parents

have been either detained or deported”). The effects

of deportation are most pronounced in lower-income

families that cannot afford to travel back and forth

between the United States and their country of

origin to visit loved ones.

For a lawful permanent resident such as peti-

tioner, who has lived in this country for his entire

adult life, deportation is among the most extreme

punishments possible. It amounts to permanent exile

from the only home he has ever known. Many of

these noncitizens have spent their entire lives in the

United States and do not even remember their time

in the nation to which they are being deported.® As

Learned Hand once observed:

[W]e think it not improper to say that depor-

tation under the circumstances would be de-

® See, e.g., Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180

(5th Cir. 2008) Gawful permanent resident (“LPR”) since 1977,

30 years in U.S.); Lopez-De Rowley v. INS, 253 F. App’x 62, 64

(2d Cir. 2007) (LPR since 1970); Knutsen v. Gonzales, 429 F.3d

733, 735, 739-740 (7th Cir. 2005) (LPR since 1957); Chang v.

INS, 307 F.3d 1185, 1187-1190 (9th Cir. 2002) (LPR since

1975); Ferreira v. Ashcroft, 382 F.3d 1045, 1047 (9th Cir. 2004)

(LPR since age 11); Valenzuela-Zamorana v. Ashcroft, 11 F.

App'x 806, 806 (Sth Cir. 2001) (LPR since age five); Amaral v.

INS, 977 F.2d 33, 34 (lst Cir. 1992) (LPR since age two);

Shurney v. INS, 201 F. Supp. 2d 783, 786 (N.D. Ohio 2001) (en-

tered U.S. at age three); Minto v. Mukasey, 302 F. App’x 13, 13

(2d Cir. 2008) (entered U.S. at age eight); Fernandez v.

Mukasey, 544 F.3d 862, 864-866 (7th Cir. 2008) (two LPRs, one

in the U.S. since age nine, another in the U.S. for over 40

years); Matter of Flores-Gomez, 2004 WL 2374449, at *1 (BIA

2004) (admitted to U.S. in 1943).

18

plorable. Whether the relator came here in

arms or at the age of ten, he is as much our

product as though his mother had borne him

on American soil. He knows no other lan-

guage, no other people, no other habits, than

ours; he will be as much a stranger in [his

country of origin] as any one born of ances-

tors who immigrated in the seventeenth cen-

tury. However heinous his crimes, deporta-

tion is to him exile, a dreadful punishment,

abandoned by the common consent of all civi-

lized peoples.

United States ex rel. Klonis v. Davis, 13 F.2d 630,

630 (2d Cir. 1926); accord Jordan v. De George, 341

U.S. 223, 243 (1951) (Jackson, J., dissenting) (re-

moval means “a life sentence of exile from what has

become home, of separation from his established

means of livelihood for himself and his family of

American citizens’).

Under the government’s approach, a 21-year-old

who engages in consensual sexual intercourse with a

17-year-old and is convicted under a statute like Cal-

ifornia Penal Code § 261.5(c) would be statutorily

barred from seeking cancellation of removal. Such a

noncitizen would have no opportunity to argue that,

as a matter of equity, he should be allowed to remain

in this country; or to present evidence of family ties,

history of employment, proof of rehabilitation, and

good moral character. He would, instead, face auto-

matic deportation—no matter how long he had lived

in the United States; no matter how minimal and

remote his connections to his country of origin; and

no matter how many people in the United States de-

pend on him for support.

19

Under petitioner's approach, by contrast, immi-

gration judges would have the leeway to consider

these factors and to grant relief when warranted.

Conversely, in those cases where the conduct of con-

viction is truly objectionable, immigration judges

would be able to exercise their discretion to deny

cancellation. There is, accordingly, no reason to be

concerned that petitioner's reading of the statute

would result in fewer deportations of those whom

Congress truly meant to deport.

2. The practical, human consequences of the gov-

ernment’s approach to the question presented are,

for these reasons, deeply troubling. Take, for exam-

ple, individuals who have served in the U.S. Armed

Forces. For any lawful permanent resident who finds

himself in removal proceedings, a record of military

service would ordinarily weigh in favor of granting

cancellation of removal. Many lawful permanent res-

idents serve in the U.S. military, and the linguistic

and cultural diversity they bring to their service is

especially valuable in the context of national securi-

ty. See, e.g., Anita U. Hattiangadi et al., CNA Corp.,

Non-Citizens in Today's Military: Final Report 1

(2005). Indeed, in recognition of the benefits that

noncitizens offer the military, the government has

made a concerted effort “to provide services and op-

portunities to service members, veterans, and their

families interacting with the U.S. immigration sys-

tem.” Barack Obama, Presidential Memorandum—

Supporting New American Service Members, Veter-

ans, and their Families (Dec. 22, 2016). Since 2001,

over 110,000 service members have been naturalized.

Ibid. But many more service members remain

noncitizens. Under the government’s position, how-

ever, a veteran who violated California Penal Code

§ 261.5(c)}—no matter how long ago, and no matter

20

the circumstances—-would have no opportunity to ar-

gue for cancellation of removal] based upon military

service or the hardship that removal would present

to his or her family or community.

3. An aggravated-felony conviction also perma-

nently blocks a noncitizen from seeking asylum in

the United States based on a well-founded fear that

he or she will face persecution or death if returned to

his or her country of origin. The history of refugee

protection in the United States demonstrates that a

noncitizen should be barred from this relief only if

his or her crime was “particularly serious.” Konou v.

Holder, 750 F.3d 1120, 1127 (9th Cir. 2014).

Congress enacted the current asylum system in

the United States more than 40 years ago, when the

United States acceded to the Protocol Relating to the

Status of Refugees. Under the Protocol, the United

States made a commitment to comply with the sub-

stantive provisions of Articles 2 through 34 of the

1951 Convention Relating to the Status of Refugees,

developed in the aftermath of World War II. See INS

v. Stevic, 467 U.S. 407, 416 (1984). Article 33 of the

Convention—-incorporated by reference and repro-

duction into the Protocol—‘provides an entitlement

for the subcategory [fof refugees] that ‘would be

threatened’ with persecution upon their return.” INS

v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). It

states:

No Contracting State shall expel or return

(“refouler”’) a refugee in any manner whatso-

ever to the frontiers of territories where his

life or freedom would be threatened on ac-

count of his race, religion, nationality, mem-

bership of a particular social group or politi-

cal opinion.

21

PROTOCOL RELATING TO THE STATUS OF REFUGEES art.

33, Jan. 31, 1967, 19 U.S.T. 6223.

Article 33 also describes two narrow categories of

refugees who are not entitled to this protection, in

view of the danger they would present to the host

country:

The benefit of the present provision may

not * * * be claimed by a refugee whom there

are reasonable grounds for regarding as a

danger to the security of the country in which

he is, or who, having been convicted by a fi-

nal judgment of a particularly serious crime,

constitutes a danger to the community of

that country.

CONVENTION RELATING TO THE STATUS OF REFUGEES

art. 33(2), July 28, 1951 189 U.N.T.S. 150 (emphasis

added).

In recognition of the Protocol and Convention,

Congress made a series of changes to the INA, in-

cluding to add a provision codifying the method by

which a refugee can apply for asylum. 8 U.S.C.

§ 1158; Cardoza-Fonseca, 480 U.S. at 423. Asylum is

a form of discretionary relief that allows the nonciti-

zen to stay and work legally in the United States,

seek derivative asylum status for family members,

and ultimately seek permanent residence and citi-

zenship. See, e.g., 8 U.S.C. § 1158.9; 8 C.F.R. § 209.2.

Congress also incorporated language that tracks

the exception in the second paragraph of Article 33.

Thus, it placed asylum off-limits for any refugee who,

“having been convicted by a final judgment of a par-

ticularly serious crime, constitutes a danger to the

community.” 8 U.S.C. § 1158(b)(2)(A)Gi). Congress

22

further defined “particularly serious crime” to in-

clude any “aggravated felony.” Id. § 1158(b)(2)(B)(i).

Under these provisions, any person convicted of

an “aggravated felony” is statutorily barred from

seeking asylum, regardless of the severity of the

threat faced upon return to the country of origin, and

regardless of the circumstances surrounding the of-

fense. This statutory bar can and does result in the

deportation of noncitizens to countries where they

face imminent harm.’ Yet under the government's

approach, even verv minor state convictions would

trigger these severe consequences.

B. The statutory structure indicates that

Congress intended to give immigration

judges discretion to resolve cases like this

one.

The structure of the INA reflects Congress's

judgment that, in most cases, the exercise of discre-

tion is the best way to assess the gravity of an of-

fense. A broad interpretation of the “aggravated felo-

ny” definition would undermine this structure by

mandating removal in cases where the circumstances

indicate removal is inappropriate.

By contrast, a narrow reading of “aggravated fel-

ony” preserves an immigration judge's discretion to

deny relief in truly aggravated cases calling for re-

moval. Petitioner's interpretation of “aggravated fel-

ony’ would not cause dangerous criminals to

“escap[e] deportation.” Moncrieffe v. Holder, 133 S.

Ct. 1678, 1692 (2013). Rather, it would shift more in-

’ See, e.g., Berhe v. Gonzales, 464 F.3d 74, 86 (1st Cir. 2006)

(even in the face of severe religious persecution in an Eritrean

national’s country of origin, acceas to relief depended in the first

instance on whether prior conviction was an aggravated felony).

23

dividuals to the discretionary category, where immi-

gration judges and the BIA can make individualized

assessments of whether removal is appropriate. [bid.

With respect to crimes for which Congress has not

clearly mandated removal, the later result is more

consistent with the statutory scheme and the ends of

justice, as discretionary relief may still be granted or

denied, depending upon the circumstances.

Experience under the Ninth Circuit rule shows

that the government’s interpretation of Section 1101-

(a)(43) would prevent the exercise of judicial discre-

tion in cases that merit relief—an outcome that can-

not be squared with the statutory scheme.

Consider the case of D.M.—one of many immi-

grants who have convictions under low-level statuto-

ry rape statutes such as California Penal Code

§ 261.5(c).* In 1992, D.M. was convicted of violating

§ 261.5 because of his relationship with his girl-

friend. At the time of his arrest, D.M. was 20 and his

girlfriend was 16. D.M. was sentenced to probation

and, shortly after his conviction, he and his girlfriend

were married. D.M. and his wife had two children

and lived together as a family for 15 years, before di-

vorcing in 2007. His ex-wife trusted him enough to

grant him custody of both children, who still live

with him. D.M. was granted lawful permanent resi-

dent status in 2006, and he naturalized in 2013. Yet

under the government's interpretation of Section

1101(a)(43), D.M.’s decades-old conviction would

have been deemed to be an “aggravated felony,” ren-

dering him ineligible for naturalization.

Other similar examples abound. For instance,

Gustavo H. pleaded guilty to a misdemeanor viola-

8 See Matter of D-M-, 2016 WL 316706, at *1 (AAO 2016).

24

tion of California Penal Code § 261.5(c). He received

a suspended sentence and three years of probation.

After the conviction, Gustavo and his girlfriend were

married. When their child was three years old, Gus-

tavo was able to adjust his immigration status based

on his marriage—an adjustment that was made pos-

sible only by the Ninth Circuit’s holding in Estrada-

Espinoza, which held that violations of Section

261.5(c) are not “sexual abuse of a minor” for purpos-

es of the INA. Estrada-Espinoza v. Mukasey, 546

F.3d 1147, 1150 (9th Cir. 2008). Gustavo’s naturali-

zation interview occurred after the BIA issued Mat-

ter of Esquivel-Quintana, 26 I. & N. Dec. 469, 470

(BIA 2015); thanks to Estrada-Espinoza, Gustavo

was able to demonstrate good moral character not-

withstanding his conviction under § 261.5(c). Now

that Gustavo is a U.S. citizen, he can continue to

provide for his family. By contrast, under the gov-

ernment’s approach in this case, Gustavo would have

been forever denied U.S. citizenship and potentially

subject to removal, depriving his family of support.

Jurisdictions that interpret the “aggravated felo-

ny” definition to include these types of offenses sepa-

rate families and impose significant hardships on

family members, including children, who are left be-

hind in the United States.? A noncitizen who we will

call Smith came to the United States from Mexico

when he was 13 years old. He qualified for Deferred

® As explained in Part II, supra, only seven states criminalize

consensual sexual intercourse between a 21-year-old and some-

one just under 18. Not all of the stories amici present below are

taken from those seven states. But the examples of noncitizens

from other atates are illustrative both of the human element of

the disputed conduct and of the broader difficulties with deem-

ing it to constitute an “aggravated felony.”

25

Action for Childhood Arrivals (DACA). At the age of

19, Smith began dating an underage girl in a rela-

tionship that was approved of and supported by both

families. The couple had a child together and Smith

worked to support the child. When police learned of

the relationship, however, they charged Smith with

“criminal sexual conduct” in violation of Minn. Stat.

§ 609.344, subd. 1(b). At sentencing, Smith was de-

tained by immigration and subjected to an order of

expedited removal. The immigration judge was not

permitted to exercise discretion to cancel the remov-

al. Setting aside the consequences to Smith—who is

now in Mexico—the person hurt most by this lack of

discretion is Smith’s U.S. citizen child. The child has

lost Smith, both as a father and a source of support,

and is now receiving public assistance benefits.

Another noncitizen, who we call Jones, was 20

years old. His girlfriend told him, falsely, that she

was 17.1° She became pregnant, and Jones supported

her financially during the pregnancy. After the birth,

the hospital reported Jones to the police without the

knowledge or consent of the girlfriend. Although the

girlfriend refused to cooperate with the investigation,

Jones was arrested and pleaded guilty to an at-

tempted violation of N.Y. Penal Law § 130.30(1). Sec-

tion 130.30(1) is a strict-liability offense prohibiting

sexual intercourse between a person under 15 and a

person age 18 or older. In the years following his ar-

rest, Jones played a continuous role in his child’s life.

He supported the mother and child financially, visit-

ed the child weekly, and paid for the mother to at-

tend college. Years later, when the government insti-

10 Although federal law provides for a mistake of age defense,

see 18 U.S.C. § 2243(c), a similar defense was not available un-

der the state law, see N.Y. Penal Law §§ 130.30, 15.20(3).

26

tuted removal proceedings, the immigration judge

determined that Jones’s offense constituted “sexual

abuse of a minor,” foreclosing Jones from discretion-

ary cancellation of removal. Jones remains detained

pending petition for rehearing in the Second Circuit.

This has been hard on the child, who has a very close

relationship with her father. For her part, the moth-

er is supportive of Jones and wishes for him to be

free.

Nothing in the INA suggests that Congress in-

tended the “aggravated felony” distinction to apply to

low-level offenders like petitioner or these other

noncitizens. The categorical denial of discretion to

accommodate such cases is inconsistent with the

statutory scheme. The conduct that would be covered

by Section 1101(a)(43) under the government's read-

ing is, in many cases, the exact opposite of an “ag-

gravated felony.” If Congress wishes to extend the

devastating consequences of an aggravated felony

conviction to such minor state law offenses, it is free

to do so. But it is simply wrong to say that it already

has.

27

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

CHUCK ROTH MICHAEL B. KIMRERLY

National Immigrant Counsel of Record

Justice Center KEVIN S. RANLETT

208 S. LaSalle St., MADELEINE L. HOGUE*

Suite1300 Mayer Brown LLP

Chicago, IL 60601 1999 K Street, NW

(312) 660-1613 Washington, DC 20006

202) 263-3000

— a SHARPLESS a

American Immigration

Lawyers Association

1331 G Street, NW

Suite 300

Washington, DC 20005

(202) 507-7600

Counsel for amici curtae

DECEMBER 2016

* Admitted to practice in North Carolina only. Not ad-

mitted in the District of Columbia. Practicing under the

supervision of firm principals.