[00:00:02] Speaker 02:
It is Cooley, right?

[00:00:03] Speaker 00:
Yes, Your Honor.

[00:00:16] Speaker 00:
Good morning, Your Honors.

[00:00:17] Speaker 00:
May it please the court, Alyssa Cooley, for the petitioner.

[00:00:20] Speaker 00:
I would plan to reserve three minutes for rebuttal.

[00:00:23] Speaker 00:
This case is about the definition of aggravated felony sexual abuse of a minor.

[00:00:28] Speaker 00:
and whether Esquivel-Quintana is clearly irreconcilable with this circuit's precedent regarding the generic definition in offenses other than statutory rape.

[00:00:37] Speaker 00:
Currently in this circuit, there are two definitions depending on the type of offense.

[00:00:42] Speaker 00:
One that follows Esquivel-Quintana's definition in statutory rape offenses.

[00:00:46] Speaker 00:
And for all other offenses, the court employs a three-pronged definition, which it reaffirmed in Medina Via,

[00:00:53] Speaker 00:
That conduct is one sexual two involves a minor and three constitutes abuse is sexual abuse of a minor If a minor is under 14, then the conduct is per se abusive It's a council As I understand your argument our prior test is irreconcilable with Esquivel Quintana.

[00:01:12] Speaker 01:
Yes.

[00:01:13] Speaker 00:
Yes, that's correct.

[00:01:14] Speaker 01:
All right, so

[00:01:14] Speaker 01:
But don't we have at least two cases after Esquivel-Quintana that state the same test, Quinteros, Cisneros, and Miro?

[00:01:28] Speaker 00:
Yes, Your Honor, that is correct.

[00:01:29] Speaker 01:
So then how can we as a panel, I mean, I understand if you're making the argument to preserve it, but how can we as a panel, even if we agreed with you, rule in your favor in light of Miller versus Gammie and,

[00:01:44] Speaker 01:
the fact that we have reiterated it afterwards, doesn't that mean that it's already been determined it's not clearly irreconcilable by three court panels?

[00:01:54] Speaker 00:
Your Honor, it's our position that this court's post-Esquivel-Quintana case law in Mero and Quinteros de Cisneros did not decide the issue of irreconcilability.

[00:02:02] Speaker 00:
Quinteros de Cisneros only cites to Esquivel-Quintana before immediately applying the pre-existing framework.

[00:02:07] Speaker 00:
Its analysis also mostly focused on whether the Washington sexual motivation enhancement was an element

[00:02:13] Speaker 00:
But ultimately, the Quintero-Cisneros Court found that it didn't matter whether that element, whether it was an element or not, the petitioner still failed.

[00:02:21] Speaker 00:
Notably, it did not engage with federal statutes and only reviewed state law.

[00:02:25] Speaker 00:
In Merrill, again, this court includes a passing citation to Esquivel-Quintana before applying the preexisting framework.

[00:02:32] Speaker 02:
Counsel, with respect, it seems to me you're not answering my colleague's question.

[00:02:37] Speaker 02:
We're a three-judge panel.

[00:02:39] Speaker 02:
We're not on my court.

[00:02:42] Speaker 02:
Actually, three cases altogether that disagree with the position that you're taking.

[00:02:46] Speaker 02:
How can we change the law?

[00:02:49] Speaker 02:
Even if you're right, don't we require an en banc review of this matter to give you the relief you're talking about?

[00:02:57] Speaker 00:
Not if this court engages in the Miller v. Gammie analysis and finds that... With all three cases?

[00:03:03] Speaker 00:
Well, Your Honor, as I was saying in Mero and Quintero-Cisneros, this court did not actually engage with Esquivel-Quintana.

[00:03:11] Speaker 00:
It cited to it briefly and then continued on applying the same three-pronged definition from Medina Via.

[00:03:17] Speaker 02:
So do you at least agree if if arguing though Miller versus Gammie does not overrule the cases to which my colleague is referred you lose?

[00:03:28] Speaker 02:
Is that right?

[00:03:29] Speaker 00:
And your honor that is our position that is the problem with the three-pronged definition is that it sweeps up conduct that isn't necessarily sexual abuse of a minor.

[00:03:38] Speaker 02:
Those cases

[00:03:39] Speaker 02:
give a different answer than what you're looking for.

[00:03:42] Speaker 02:
Yes, Your Honor.

[00:03:44] Speaker 02:
Go ahead.

[00:03:45] Speaker 03:
I understand your argument that if we just sort of were oblivious to Esquivel-Quintana and just repeated post Esquivel-Quintana the old law without any awareness of the issue, then maybe there'd be an argument that the issues of whether there was a conflict between the two hadn't been engaged.

[00:04:09] Speaker 03:
But I'm not sure that works for Quintero because it's brief discussion, but what it says is we've developed two definitions specifying the elements of the federal generic offense of sexual abuse of a minor.

[00:04:25] Speaker 03:
The first definition is not relevant for our purposes as it applies mainly to statutory rape offenses

[00:04:33] Speaker 03:
see Estrada Espinosa see also Esquivel Quintana.

[00:04:36] Speaker 03:
That seems to say that's how they're reconciled.

[00:04:39] Speaker 03:
Esquivel Quintana is about statutory rape and this isn't that and therefore the test survives.

[00:04:47] Speaker 03:
That seems not much of it but it's enough to say that they can be reconciled and then I think under Millie Miller our hands are tied.

[00:04:57] Speaker 03:
Are they not?

[00:04:59] Speaker 00:
Your Honor, in Quintero Cisneros the court did

[00:05:03] Speaker 00:
repeat itself in saying that there are two definitions on the circuit.

[00:05:07] Speaker 00:
One that applies to statutory rape offenses, which came out of Estrada Espinosa that predated Esquivel-Quintana, and the Medina via definition, the three prong for all other offenses.

[00:05:18] Speaker 00:
And so it didn't necessarily engage with the methodology or look at the federal... But it squarely places Esquivel-Quintana.

[00:05:27] Speaker 03:
It characterizes it consistently in saying it's on the other side of that test.

[00:05:33] Speaker 00:
Right.

[00:05:33] Speaker 00:
And the Esquivel-Quintana Court didn't necessarily need to get to any other offense aside from statutory rape, because that was the issue before the court.

[00:05:42] Speaker 00:
And in Esquivel-Quintana, it's the methodology and how it determined what the baseline definition of sexual abuse of a minor was in that case.

[00:05:49] Speaker 00:
That is what undercuts this circuit's case law, regardless of whether it was statutory rape or any other child sex offense.

[00:05:56] Speaker 01:
But, counsel, I think part of my colleague's point is whatever force that argument might have under Miller

[00:06:04] Speaker 01:
The court in Quintana Cisneros cited the very Supreme Court case that you're relying on.

[00:06:12] Speaker 01:
Maybe they were completely wrong, but even if you might have an argument had they not cited the Supreme Court case, and I still think it would be pretty tough sledding, doesn't citing the very case that you're saying their decision is irreconcilable with sort of take us past the Miller v. Gammie option?

[00:06:34] Speaker 00:
Well, no, Your Honor, because in Esquivel-Quintana, it was more than just about statutory rape.

[00:06:39] Speaker 00:
It was about statutory interpretation.

[00:06:42] Speaker 00:
And in that case, the Supreme Court said you must always first look to the statutory text to determine congressional intent.

[00:06:48] Speaker 00:
And in Quintero-Sisneros and in Mero V. Barr, this court did not look at the statutory text.

[00:06:53] Speaker 00:
It only looked at a preexisting definition that this court has admitted has evolved over time and has mostly focused on state statutes and what the minimum conduct is in those state statutes

[00:07:03] Speaker 00:
And if conduct is sexual and with a child under 14, then it is per se abusive.

[00:07:08] Speaker 00:
And so it creates a circular definition.

[00:07:11] Speaker 00:
Apologies, what the Esquivel-Quintana Court said, you have to look for evidence of congressional intent in the federal statutory text.

[00:07:20] Speaker 00:
And it's our position that there is evidence.

[00:07:22] Speaker 00:
Because Congress, when it added sexual abuse of a minor as an aggravated felony in 1996, it did so in an omnibus appropriations bill, where Congress also

[00:07:32] Speaker 00:
amended the Sexual Abuse Act of 1986, expanding its reach and including explicitly that it pertains to children under 12.

[00:07:41] Speaker 00:
It also wove in citations to sections 2241 and 2243 of the Sexual Abuse Act, which pertain to children.

[00:07:51] Speaker 00:
Throughout the different amendments that it did to other provisions aside from the sexual abuse act and so that shows that there is congressional intent evidence of congressional intent of what the definition of sexual abuse of a minor is and that's in section the sexual abuse act and so the court in Esquivel Cantana did not need to Decide issues that weren't before it in Esquivel Cantana the only issue before the court was whether a California statute or

[00:08:17] Speaker 00:
that criminalized sexual conduct with a person under the age of 18 was sexual abuse of a minor.

[00:08:23] Speaker 00:
In Esquivel-Quintana, the court looked at a state survey to determine what is the age of consent in the United States, and they determined it was 16.

[00:08:32] Speaker 00:
And at that point, because the California statute punished conduct over 16, they didn't need to get into what are the prohibited sexual acts that Congress meant when they added sexual abuse of a minor to the INA.

[00:08:47] Speaker 00:
that the analysis stopped there.

[00:08:49] Speaker 00:
But the Esquivel-Quintana's methodology and how it went through first looking at the text of the INA, then looking at the dictionary definitions of those terms, then looking for evidence of congressional intent in the federal statutory text, finding a clearly related and defined criminal offense regarding sexual abuse of a minor, that was all

[00:09:15] Speaker 00:
very instructive to the court in knowing where to look.

[00:09:18] Speaker 00:
And that is what's clearly irreconcilable with this court's jurisprudence regarding sexual abuse of a minor when it comes to non-statutory rape offenses.

[00:09:32] Speaker 00:
And if this court does not find

[00:09:34] Speaker 00:
That is clearly irreconcilable with Medina via then it is our position that Medina via was wrongly decided and that circuit case law is internally conflicting and the reasons for that is because regardless of whether Esquivel Quintana applies.

[00:09:49] Speaker 00:
You still must look to the statutory text as a primary source of the definition you're saying.

[00:09:55] Speaker 02:
you want us to ask for en banc as a panel that we should request it, right?

[00:10:00] Speaker 00:
If this court finds that Miro and Quintero Cisneros were recent decisions on the issue of Medina Villa's continued validity, then yes, we would say that's what we would like the court to do.

[00:10:11] Speaker 00:
But it's our position that Miro

[00:10:13] Speaker 00:
And Quinteros and Cisneros were not reasoned decisions because they did not engage in the statutory text.

[00:10:18] Speaker 00:
And also, in the Diaz Rodriguez, it is a case regarding the definition of child abuse and neglect, which is a different deportability ground than the one I issue here.

[00:10:28] Speaker 00:
But this court engaged in the Esquivel-Quintana methodology to determine what Congress meant when it added child abuse and neglect as a deportability ground.

[00:10:39] Speaker 00:
First, it looked at the terms in the INA.

[00:10:41] Speaker 00:
It defined those terms.

[00:10:43] Speaker 00:
And then it turned to the statutory text to find evidence of congressional intent.

[00:10:48] Speaker 00:
It went through the methodology of Esquivel-Quintana step by step.

[00:10:51] Speaker 00:
It followed the methodology and the tools of statutory interpretation that the Esquivel-Quintana Court highlighted and said were necessary to determine congressional intent when figuring out what these removability grounds, in that case, child abuse and neglect, meant.

[00:11:07] Speaker 00:
And in that case, the Diaz Rodriguez Court could not find a clearly related federal statute regarding child abuse and neglect.

[00:11:16] Speaker 00:
And so then it had to defer to the BIA.

[00:11:19] Speaker 00:
But here we do have a clearly defined definition of sexual abuse for minor that pre-existed the addition of the sexual abuse for minor aggravated felony to the INA by 10 years.

[00:11:33] Speaker 00:
If this court does not find that Esquivel-Quintana is clearly irreconcilable, it's our position that Medina Via, the court did not engage with the federal text.

[00:11:42] Speaker 00:
It only looked at the minimum conduct in the statute and other cases where it employed that approach.

[00:11:48] Speaker 00:
It also declined to follow the sentencing guidelines that specifically referenced Section 2241, and that's from the Sexual Abuse Act of 1986.

[00:11:58] Speaker 00:
that pertains to children, sexual abuse acts that are prohibited when involving children under 12.

[00:12:03] Speaker 00:
And so the Medina Via Court briefly discussed it, but then turned away and applied the same methodology that it had in the past.

[00:12:12] Speaker 00:
The three, like I mentioned before, the three-pronged definition is circular, where it impermissibly expands the definition of what constitutes sexual abuse of a minor.

[00:12:23] Speaker 00:
And as this court knows, the aggravated felony ground

[00:12:27] Speaker 00:
is akin to the death penalty in immigration.

[00:12:29] Speaker 00:
And so the fact that sexual abuse of minor is in the very first listed aggravated felony with murder and rape, it should constitute or actions that constitute sexual abuse of minor should be the most egregious of felonies.

[00:12:44] Speaker 00:
But you have the Nevada statute at issue, for example, it punishes the minimum conduct under the statute is innocuous touching of any part

[00:12:56] Speaker 00:
of the body by the offender or by the child themselves.

[00:13:00] Speaker 00:
And the child does not even need to know if there was a sexual intent.

[00:13:05] Speaker 00:
And under the federal definition of sexual act, the touching has to be of a specific body part, usually the genitalia, skin-to-skin contact, and of the child.

[00:13:14] Speaker 00:
And so the Nevada definition is far broader than what Congress intended when it added sexual abuse of minor to the aggravated felony.

[00:13:21] Speaker 02:
Do you want us to have any of your time?

[00:13:24] Speaker 00:
It's entirely up to you.

[00:13:24] Speaker 00:
Yes, I would like to.

[00:13:25] Speaker 00:
Thank you, Your Honor.

[00:13:26] Speaker 02:
Very well.

[00:13:27] Speaker 02:
Okay.

[00:13:28] Speaker 02:
So let's hear from Mr. Newell for the government.

[00:13:43] Speaker 04:
Good morning.

[00:13:45] Speaker 04:
May it please the court.

[00:13:46] Speaker 04:
My name is Craig Newell and I'm here on behalf of the Attorney General.

[00:13:49] Speaker 04:
This court's generic definition of sexual abuse of a minor in Medea Villa has not been fatally undermined by Escuelo Cantana or any subsequent Supreme Court precedent.

[00:14:03] Speaker 04:
this court has already recognized it while briefly in that Quintero's decision.

[00:14:09] Speaker 04:
But even if the court were to consider that not to be sufficient, there are a number of reasons why Medina Via is not clearly reconcilable with Esquivel-Quintana.

[00:14:20] Speaker 04:
First of all, Esquivel-Quintana has a very narrow holding.

[00:14:25] Speaker 04:
It only addresses

[00:14:27] Speaker 04:
It only construes the term minor and only in the narrow context of statutory rape based solely on the age of participants.

[00:14:37] Speaker 04:
None of the underlying reasoning, none of that undercuts Medina Via also.

[00:14:46] Speaker 04:
One of the main problems that Mr. Leon Perez has with Medina Via is how it uses the contemporary

[00:14:55] Speaker 04:
an ordinary and common meaning of sexual abuse of a minor as its generic definition.

[00:15:01] Speaker 04:
But in Esquivel Cantan, the Supreme Court used that same well-established statutory construction method, trying to figure out the everyday meaning of minor in those narrow circumstances.

[00:15:13] Speaker 04:
So the reasonings are aligned.

[00:15:18] Speaker 04:
Another important thing to consider is that Mr. Leon Perez's main concern seems to be with the broadness of Medina Villa.

[00:15:27] Speaker 04:
But what we have as our generic comparator, what Congress gave us, is a broad term of sexual abuse of a minor.

[00:15:35] Speaker 04:
You know, that's not a common law crime.

[00:15:37] Speaker 04:
It's not recognized in the real world or in the legal profession in particular as a specific crime.

[00:15:43] Speaker 04:
It covers a class of crimes.

[00:15:45] Speaker 04:
You know, statutory rape, these lewdness offenses, molestation.

[00:15:50] Speaker 04:
So the broadness of Medina via is consistent with the term Congress provided.

[00:15:56] Speaker 04:
And at bottom, the categorical approach is a question of statutory construction.

[00:16:01] Speaker 04:
And the court did it correctly in Medina via, and it has been properly applying it.

[00:16:05] Speaker 04:
by, in all the cases, whether you look at Bear Medina, its predecessor or Medina V itself, the court narrows in on the elements of the crime in question and then compares them to these generic three elements.

[00:16:22] Speaker 04:
And so that was done properly here.

[00:16:23] Speaker 02:
From the government's perspective, I gather that Medina V and all of its progeny are perfectly consistent with Esquivel and Quintana, right?

[00:16:31] Speaker 02:
Yes, Your Honor.

[00:16:32] Speaker 02:
Yes.

[00:16:33] Speaker 02:
And without, unless the opposing side is correct, the government wins because the case law controls, right?

[00:16:42] Speaker 04:
Correct, Your Honor.

[00:16:44] Speaker 04:
Yes.

[00:16:44] Speaker 04:
So the only way for Mr. Leon Perez to succeed is to lose now and then convince an MBAC panel of his position.

[00:16:54] Speaker 04:
And so for these reasons and

[00:16:56] Speaker 04:
There are no further questions.

[00:16:58] Speaker 04:
The court should deny this petition for review and hope hold that this, uh, Mr. Really on presses removal order.

[00:17:04] Speaker 04:
Thank you.

[00:17:05] Speaker 02:
Questions by my colleague.

[00:17:06] Speaker 02:
Thank you.

[00:17:07] Speaker 02:
Okay.

[00:17:10] Speaker 02:
So that's cool.

[00:17:12] Speaker 02:
You have a little bit of time left.

[00:17:13] Speaker 00:
Thank you.

[00:17:21] Speaker 00:
Your honor is that the government talked about the narrow holding and ask you about Katana.

[00:17:25] Speaker 00:
Yes, it was narrow and like I had mentioned before the courts only need to decide the issues that are before them but the court still turned to the congressional definitions in 2241 2243 and also the definitions of those prohibited sexual acts at 2246 sub 2 and the government said on

[00:17:49] Speaker 00:
during their argument, if Medina Via conforms with the congressional definition, then the petitioner wins.

[00:17:55] Speaker 00:
And the government said that Medina Via does conform with the congressional definition.

[00:18:02] Speaker 00:
The everyday reasoning of the term sexual abuse of a minor in 1996, when Congress added that to the INA, was what it had referenced, what it had specifically cited back to in the same omnibus bill that it added.

[00:18:16] Speaker 00:
sexual abuse of a minor to the INA.

[00:18:20] Speaker 00:
And if that is the definition that

[00:18:25] Speaker 00:
the government believes is appropriate, then the petitioner does win because the Nevada statute is overbroad compared to those definitions.

[00:18:34] Speaker 00:
The prohibited sexual acts do include lewdness, but it's specific kinds of lewdness.

[00:18:41] Speaker 00:
Direct skin-to-skin contact of specific body parts.

[00:18:44] Speaker 00:
And in Nevada, it is any kind of contact through clothing.

[00:18:49] Speaker 00:
It could be the shoulder.

[00:18:50] Speaker 00:
It could be a hug.

[00:18:52] Speaker 00:
It can be of any

[00:18:54] Speaker 00:
Non-sexual type of body part and it would still constitute lewdness with a minor in Nevada and that is just such sweeping a sweeping definition And I don't think that this court would want to sweep up that kind of non It's not Appropriate it is immoral, but it's not the kind of egregious contact or conduct that should be encapsulated in the aggravated felony definition.

[00:19:20] Speaker 00:
Thank you

[00:19:21] Speaker 02:
Very well, thanks to both counsel for your argument.

[00:19:23] Speaker 02:
The case of Perez versus Garland is submitted and the court stands adjourned for the day.