[00:00:04] Speaker 03:
Oh, that was fast.

[00:00:07] Speaker 03:
All right, so do we have Mr. George there, too? Oh, okay. Well, this is like theater. You both made a change very quickly. You were ready.

[00:00:19] Speaker 02:
Okay, thank you. Ten minutes each side. All right, thank you. Good morning, Your Honors. May it please the Court. I'm Kathleen Foley here on behalf of Petitioner. I aspire to reserve two minutes for rebuttal, please.

[00:00:30] Speaker 02:
This is a simple case. In Esquivel-Quintana v. Sessions, the Supreme Court decided unanimously that the word abuse in the phrase sexual abuse of a minor unambiguously excludes consensual sex with someone 16 or older because a 16-year-old can legally consent to sex. That holding applies equally to the word abuse in the phrase crime of child abuse, which Congress added to the INA at the same time.

[00:00:53] Speaker 02:
Esquivel-Quintana controls here. Petitioner was convicted of violating California Penal Code Section 288.2b, which criminalize consensual communication proposing consensual sexual conduct between people who under Esquivel Quintana are free to consent.

[00:01:07] Speaker 03:
So if we read Esquivel Quintana versus Sessions as limited to statutory rape offenses that criminalize conduct based solely on the age of the participants, does it still support your position?

[00:01:23] Speaker 02:
And how? I would push back on the premise there, but let me answer your actual question first. I think it does still support our position because it's a definitive ruling on the generic age of consent at the time both of these provisions were enacted. And so if the court were not to accept our overarching argument that Esquivel-Quintana directly controls the outcome here, it would have to decide whether consensual communication between 17-year-old sexual partners constituted child abuse. I think, by the way, that the premise on which this court has to decide this case is that child abuse requires harm.

[00:01:59] Speaker 02:
That's the position the government has defended in its letter brief that is consistent with this court's holding in Fergozo, although I understand the court may or may not feel itself bound by that, and that's something that dictionary definitions support, contemporary dictionary definitions. But I do want to push back on the notion that this is limited to statutory rape.

[00:02:21] Speaker 02:
The Supreme Court didn't limit its holding to crimes without a mens rea. The government latches onto the word solely in the sentence your Honor just read, that is where sexual intercourse is abusive solely because of the ages of the participants.

[00:02:34] Speaker 03:
I think the Attorney's general assertion is there's no realistic probability that California would charge a violation of Section 288.2G where the victim was not actually a child

[00:02:46] Speaker 02:
Well, the government hasn't argued here that there isn't a realistic probability of prosecution. So I don't know that that issue is before the court. But even if it were, the circuit law is clear that where the state statute expressly sweeps more broadly than does the generic crime, then there's a realistic probability and no legal imagination is necessary in those circumstances for there to be a realistic probability. But going back to the Supreme Court's use of the word solely, the Supreme Court was there acknowledging that for purposes of a generic crime, the age of consent may be different where the participant and the victim are in some kind of special relationship.

[00:03:25] Speaker 02:
It expressly carved that out in several places in its opinion. It didn't need to decide that issue, though, because in the statute issue in Esquivel-Quintana, just like the statute issue here, there was no special relationship element. What the Supreme Court did decide is that absent such an element, the generic age of consent is 16.

[00:03:43] Speaker 01:
But the big distinction between Esquivel and this case is that this statute requires harmful material, right? So I don't know how you distinguish that away. I mean, that's like a very big difference than just, you know, same age. Even if you're the same age, if you're sending harmful material, that just is different.

[00:04:01] Speaker 02:
Well, I think what is harmful really varies depending on the age of the recipient.

[00:04:08] Speaker 02:
certainly 30-year-olds sending obscene material back and forth.

[00:04:12] Speaker 01:
But even a 17-year-old sending harmful material to another 17-year-old maybe probably should be fine to be criminalized.

[00:04:19] Speaker 02:
I just think that if... I think that as the Fifth Circuit reasoned in Schroff v. Sessions, if it's not abuse to have actual sexual intercourse as a 17-year-old, then it simply can't be abuse... to send explicit communications describing that contact, soliciting that contact, perhaps even photographs back and forth that might be consensually exchanged. And all of that be swept in by the statute here, and the government doesn't meaningfully dispute that.

[00:04:47] Speaker 01:
So I guess you could be consensually send harmful material, and that should be fine. Is that your argument?

[00:04:54] Speaker 02:
You could consensually send and receive material that, under California's definition of harmful matter,

[00:05:01] Speaker 01:
Do you have it off the top of your head? I don't have it, what harmful material means.

[00:05:05] Speaker 02:
I do, yeah, here. It's California Penal Code Section 313A. Harmful matter means matter taken as a whole, which to the average person applying contemporary statewide standards appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct, and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. Sure.

[00:05:28] Speaker 02:
But the state doesn't get to decide what's harmful in this context. It gets to prescribe certain elements of crimes, and then the court decides for itself whether the conduct, the minimum culpable conduct under the state statute matches the generic crime.

[00:05:44] Speaker 03:
So what exactly happened here?

[00:05:47] Speaker 02:
So the facts of this case are that the petitioner, when he was 37 years old, was sending text messages, no images, to a girl who was 15 and then 16 years old for about a two-month period. He didn't ask her to meet up. He didn't, again, send any images, and he didn't even ask her to not tell anyone about these messages. But, again, the categorical approach, which the court must apply here, mandates that the particular facts of this case not be considered. Right.

[00:06:17] Speaker 03:
I understand that, but you're not— But if we were speculating, yours is not one of the things that we're speculating could happen to 17-year-olds.

[00:06:26] Speaker 02:
That's true. The case at issue was not to 17-year-olds. But the point is that, and the government, again, does not dispute that two 17-year-olds exchanging consensual messages who are in an ongoing sexual relationship would be swept in by the statute. And that's the primary reason that it's overbroad.

[00:06:42] Speaker 03:
So if we read 1227 as including child endangerment, Why would a violation of 288 to G not be encompassed by 1227?

[00:06:56] Speaker 02:
Well, as we argue in our opening letter brief, we think that the statutory phrase, crime of child abuse, child neglect, or child abandonment, even if it's considered as a unitary concept, is best read to cover non-injurious conduct only where there's some duty to care for the child.

[00:07:14] Speaker 02:
And neither – we argue in our opening brief that an offer to distribute a harmful matter – But I guess what I'm saying is let's assume that we don't all agree at the end of it.

[00:07:27] Speaker 03:
The three people that you see here are the ones that are going to be telling you that. So if we don't agree with how you're reading it, why wouldn't – 288.2G not be encompassed by 1227. That's a hypothetical. You're saying there's reasons we shouldn't read it that way, but if we did... Your question is why it wouldn't be child neglect? If we read 1227 as including child endangerment, if we publish on that and say that it does, then do you lose...

[00:07:59] Speaker 02:
No, we don't lose, because under Esquivel-Quintana, the generic age of consent is 16, and there's simply no danger to someone who is of an illegal age to consent to sexual intercourse, and that's by extension explicit messaging about that intercourse in the consensual exchange of messages. And again, the minimum culpable conduct here would be 17-year-olds exchanging messages.

[00:08:23] Speaker 02:
and they would not be endangered by that because they could legally consent to the underlying conduct that's described.

[00:08:29] Speaker 01:
I think you raised this earlier, but why do we think that there's a realistic probability that California would prosecute that?

[00:08:34] Speaker 02:
So again, the government hasn't argued that there's not a realistic probability, so I don't see that issue being before the court, but the California statute defines a minor as being someone under the age of 18, so it expressly sweeps more broadly than what we're arguing the generic definition is.

[00:08:48] Speaker 01:
But you don't have a case of anything like that? Like if a 17-year-old on 17-year-old...

[00:08:54] Speaker 02:
No, but again, under this court's case law in cases like Chavez-Solas, the court has said that where the state statute expressly sweeps more broadly than the generic definition, no legal imagination is required to find a realistic probability.

[00:09:11] Speaker 03:
Do you want to save the balance of your time?

[00:09:13] Speaker 02:
I would. Thank you. Thank you.

[00:09:29] Speaker 03:
Good morning.

[00:09:30] Speaker 00:
Good morning, Your Honor. May it please the court, Matthew George for the Attorney General. I want to jump into this hypothetical that's been proposed by a petitioner here about the consensual activity between 17-year-olds. I think the first point is, as the court has already sort of brought up, the Duenas-Alvarez type of position. I guess I wasn't as explicit as I should have been in the letter brief about that, but that's the point I was getting at about whether they haven't shown that to be the case. And so that's one response.

[00:09:59] Speaker 01:
The other issue... They haven't shown that it's a realistic probability?

[00:10:04] Speaker 00:
Correct, John. They haven't shown us a case or shown the facts in this case meet that hypothetical scenario. The other issue with that, with this sort of hypothetical, is I think our sort of lay picturing of what that factual scenario looks like. And it also ignores the statutory language about the intents in this statute, which are the intent to arouse and the intent to seduce. And so it's not simply...

[00:10:30] Speaker 00:
sort of a strict liability type of situation where consensual teenagers were sending sexy pics or whatever it might be, it necessarily includes that intent to arouse and that intent to seduce, which the California courts have said gets us into the harm in this case, the emotional harm, the injury to morals. It requires this exploitation, this predation, this grooming type of activity.

[00:10:56] Speaker 01:
Then how does that fall into Esquivel-Quintana territory, though?

[00:11:01] Speaker 00:
That's sort of the situation where we're looking at an apple and an orange and we're saying they're both fruit.

[00:11:09] Speaker 00:
Esquivel obviously involves sexual abuse of a minor. This case involves the crime of child abuse. They both have the word abuse. However, as the board explicitly points out in Velazquez-Herrera, the concept of child abuse is separate from both the words child and abuse.

[00:11:26] Speaker 01:
And looking at blacks, at least the- As I read it, it's saying sex between two 17-year-olds is not illegal, cannot be legal. But the point here is that if two 17-year-olds send each other communications to try and have sex, then that could be, right?

[00:11:47] Speaker 00:
That could be a crime of child abuse. Or it is here, yes.

[00:11:52] Speaker 01:
But I guess I'm not saying it's a problem. But Esquival is saying if two 17-year-olds are having sex, that that's not child abuse, correct? No, that's not sexual abuse of a minor. Right. But then if the 17-year-old propositions another 17-year-old, you're saying that could be a crime of child abuse.

[00:12:09] Speaker 00:
If it met the definition of the statute in this case, yeah. If it met a conviction in this case, yes. Going beyond that in terms of more hypothetical conduct, I'm not really sure because we're looking at this particular issue.

[00:12:23] Speaker 01:
In addition, I guess I'm just confused about if having sex between two 17-year-olds is not child abuse, but sending material to another 17-year-old to procure sex is.

[00:12:36] Speaker 01:
How can that be a distinction?

[00:12:37] Speaker 00:
It might not be sexual abuse of a minor, and that's where Schaaf comes in. Schaaf was a sexual abuse of a minor case. And so what they were just maybe a natural extension of that is if the activity itself wouldn't be sexual abuse of a minor, then sort of communicating about that activity might not be sexual abuse of a minor. But that's distinct from crime of child abuse.

[00:12:58] Speaker 01:
I see.

[00:12:58] Speaker 00:
Okay. And if you look at blacks or any legal dictionary, sexual abuse, like child abuse, is defined separately. It's a distinct concept itself.

[00:13:09] Speaker 01:
Then abuse of a minor is different than child abuse?

[00:13:12] Speaker 00:
I couldn't find abuse of a minor, but child abuse is defined separately. Sexual abuse is defined separately, including the concept of rape is one definition of sexual abuse, not necessarily of a minor.

[00:13:26] Speaker 03:
Well, so is the statute overbroad because it might cover the transmission of harmful materials to an individual that the defendant believes to be a minor but is actually an adult?

[00:13:39] Speaker 00:
Not this statute, because this statute requires a completed crime. And that's what the California courts have told us in column specifically. That's a case I cited in the brief. A conviction under this statute requires the completed crime, which requires both that the victim is an actual minor and that the victim actually received the harmful material. So maybe that's a question for a different statute. That's not the statute we have here. That's not the conviction we have here.

[00:14:08] Speaker 01:
Okay, thank you. So you're saying that Esquivel-Quintana would have come out differently if the crime was of child abuse versus a sexual abuse of a minor?

[00:14:17] Speaker 00:
It very well may have, Your Honor, yes.

[00:14:19] Speaker 01:
I'm not sure I believe that.

[00:14:22] Speaker 00:
I guess what's the difference between those two? Well, they're different words. I mean, it gets into some of the... the tools we use to define this crime, the generic definition of the crime. One is we're looking at, they're in different sections of the immigration nationality.

[00:14:37] Speaker 01:
How is it child abuse if a 17-year-old is having consensual sex with another 17-year-old?

[00:14:43] Speaker 00:
If they're having sex, well, I mean, I don't know.

[00:14:45] Speaker 01:
We would have to look at the... No, under your definition of child abuse, how is that child abuse?

[00:14:51] Speaker 01:
How is that child abuse, having? Two 17-year-olds having consensual sex. How is that child abuse?

[00:14:56] Speaker 00:
I'm not sure that would be, because I don't know if there's maltreatment of the child, unless the state has defined it in that way. Like here, because we have those.

[00:15:04] Speaker 01:
Well, you just said that if Quintana Esquivel looked at child abuse, then it could have come out differently.

[00:15:14] Speaker 00:
Right.

[00:15:15] Speaker 01:
So you have to show me how two 17-year-olds having consensual sex could be child abuse.

[00:15:20] Speaker 01:
Oh, it could be. Yes.

[00:15:23] Speaker 00:
I mean, it would depend on the crime being charged. I mean, it could be an abusive situation. It could really be. Well, it's consensual. Right. If it's consensual and there's no age difference. Yes. I mean, it wouldn't be sexual abuse of a minor. But you're saying it could be child abuse, right? I'm not sure I am necessarily saying it could be child abuse.

[00:15:48] Speaker 03:
Well, wouldn't we read Esquivel-Cantana as solely limited to statutory rape offenses that criminalize conduct based solely on the age of the participants?

[00:16:01] Speaker 00:
Yes, Your Honor. I mean, that's explicitly what Esquivel says it's limited to. And if you look at cases like Shoff, I mean, that is another sexual abuse of a minor case. Now, sexual abuse could be a subset of child abuse. It's sort of you look at the Venn diagram of child abuse being the big circle. Maybe it's a wholly encompassed circle within it. And maybe, OK, if it's a consensual activity between two 17-year-olds, maybe that whole is removed from the bigger one. But we still have the bigger circle encompassing child abuse.

[00:16:33] Speaker 00:
And that's what we have.

[00:16:35] Speaker 01:
I think that's a better distinction, Quintana's Esquival, than just saying they're different words.

[00:16:41] Speaker 00:
The fact that one's limited to statutory rape versus... I mean, that's what Esquival itself says, that that's what it's limited to. And some of the same principles in terms of looking at the generic definition. For example, they're in different statutory sections. Sexual abuse of a minor is an aggravated felony versus a kind of child abuse is in...

[00:17:03] Speaker 00:
a different subsection of the Immigration and Nationality Act. It doesn't impose all of the penalties that an aggravated felony would impose. It's in a different section with different penalties, so on and so forth. That's one factor that courts have looked at in terms of distinguishing that language and looking at Esquivel in terms of what impact it has. And many courts have said it has no impact in the child abuse realm. Thompson is a case out of the Fourth Circuit where they say it simply doesn't apply because it only really applies where the crime is based solely on an age difference.

[00:17:40] Speaker 00:
Where we have explicit intents like we do here, an intent to arouse, an intent to seduce, that's bringing in more of that harmful language and making more of a distinction into that context.

[00:17:56] Speaker 00:
In terms of, if we get into the generic definition, I feel like in this case we've been arguing more in sort of the negative and what shouldn't be included.

[00:18:05] Speaker 00:
But in terms of a generic definition, even if it's just child abuse, Velazquez-Herrera is a good starting point at least, as is the plurality decision in Diaz-Rodriguez. Obviously that's been vacated. They both engage in the same, in terms of what value does Esquivel have Provide to us, it's engaging in that analysis of what do we look at to interpret the statutory language. It's looking at dictionary definitions. It's looking at the statutory construction. It's looking at the 50-state survey of what was going on in all the states in these types of child abuse, child neglect, child abandonment type of crimes.

[00:18:48] Speaker 00:
Even if we're just sort of going to apply the definition that Velazquez-Herrera set out, even if we're going to say some sort of, it doesn't necessarily require physical harm, even however slight, it can also include emotional harm, it can include injury to morals, and that's what for Gozo is well recognized. That could be the harm. If we're going to say harm is required, this statute meets that harm because of that intent to arouse, because of that intent to seduce. It's not simply sending consensual material, it's including those bad intents, and that's what California courts have said get us into that predation, exploitation, injury to morals type of area.

[00:19:30] Speaker 00:
I see my time is up unless the court has any other questions.

[00:19:34] Speaker 03:
Don't appear to be. Thank you.

[00:19:35] Speaker 02:
Thank you. Very briefly because I don't have much time.

[00:19:52] Speaker 02:
I heard my friend concede that two 17-year-olds having consensual sex would not constitute child abuse. I believe that would suffice to resolve this case.

[00:20:02] Speaker 02:
But anyway, I would note that California's definition of harmful matter doesn't actually require harm. It's simply a description of matter. So there's no finding of harm here with respect to a conviction. That's just not baked into the statute. I also want to note that intent to seduce or arouse someone who is of an age to consent, just like knowledge that they are of an age to consent, although of a minor, simply can't convert conduct that's not abusive into abusive conduct.

[00:20:33] Speaker 02:
That would be the equivalent of finding that having an evil-meaning mind in and of itself can render a conduct that is legal illegal. And there's just no basis for that. The Esquivel-Quintana doesn't supply a basis for that. especially since the statute at issue in Escobar-Cantana essentially baked in a mens rea element in that if the defendant asserted a mistake of age defense, the prosecutor would have to prove mens rea beyond a reasonable doubt, and that's not something the Supreme Court mentioned, and it certainly would have if that were important.

[00:21:05] Speaker 02:
We'd ask the court to grant the petition. All right.

[00:21:08] Speaker 03:
Thank you both for your argument in this matter. It will stand submitted.