1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0012p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

JUAN ESQUIVEL-QUINTANA, 

Petitioner, 

v. 

LORETTA E. LYNCH, Attorney General, 

Respondent. 

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No. 15-3101 

On Petition for Review from an Order 

of the Board of Immigration Appeals. 

No. A 047 719 438. 

Argued: October 14, 2015 

Decided and Filed: January 15, 2016 

Before: BOGGS, SUTTON, and COOK, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Michael Carlin, LAW OFFICE OF MICHAEL CARLIN PLLC, Ann Arbor, 

Michigan, for Petitioner. Yedidya Cohen, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent. ON BRIEF: Michael Carlin, LAW OFFICE OF 

MICHAEL CARLIN PLLC, Ann Arbor, Michigan, for Petitioner. Yedidya Cohen, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Sejal Zota, 

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, 

Massachusetts, Charles Roth, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, 

Illinois, Brian J. Murray, JONES DAY, Chicago, Illinois, Rajeev Muttreja, JONES DAY, New 

York, New York, for Amici Curiae. 

 BOGGS, J., delivered the opinion of the court in which COOK, J., joined, and SUTTON, 

J., joined in part. SUTTON, J. (pp. 11–18), delivered a separate opinion concurring in part and 

dissenting in part. 

>
No. 15-3101 Esquivel-Quintana v. Lynch Page 2 

_________________ 

OPINION

_________________ 

BOGGS, Circuit Judge. The Immigration and Nationality Act defines “sexual abuse of a 

minor” as an aggravated felony. 8 U.S.C. § 1101(a)(43)(A). Aliens convicted of an aggravated 

felony face numerous criminal and civil consequences, including removal from the United 

States. Id. § 1227(a)(2)(A)(iii). In this case, we consider whether “sexual abuse of a minor” 

includes convictions under California Penal Code § 261.5(c) for unlawful sexual intercourse with 

a minor. Because the Board of Immigration Appeals permissibly interpreted “sexual abuse of a 

minor” as including convictions under section 261.5(c), we defer to the Board’s interpretation 

and deny Esquivel-Quintana’s petition. 

I 

 Juan Esquivel-Quintana was admitted to the United States as a lawful permanent resident 

in 2000. In 2009, he pleaded guilty to unlawful sexual intercourse with a minor in California. 

The statute under which he was convicted provides that “[a]ny person who engages in an act of 

unlawful sexual intercourse with a minor who is more than three years younger than the 

perpetrator is guilty of either a misdemeanor or a felony.” Cal. Penal Code § 261.5(c). Unlawful 

sexual intercourse is defined as “an act of sexual intercourse accomplished with a person who is 

not the spouse of the perpetrator, if the person is a minor,” and a minor is “a person under the age 

of 18.” Id. § 261.5(a). So, a twenty-year-old who has sex with a seventeen-year-old or a fifteenyear-old who has sex with a twelve-year-old could be convicted under the statute. 

 Subsequently, Esquivel-Quintana moved to Michigan. While he was in Michigan, the 

Department of Homeland Security initiated removal proceedings based on 8 U.S.C. 

§ 1227(a)(2)(A)(iii), which states that an alien can be removed if he is convicted of an 

aggravated felony such as “sexual abuse of a minor,” id. § 1101(a)(43)(A). An immigration 

judge ruled that Esquivel-Quintana’s conviction under section 261.5(c) constituted “sexual abuse 

of a minor” and ordered him removed to Mexico. Esquivel-Quintana appealed. 
No. 15-3101 Esquivel-Quintana v. Lynch Page 3 

 A three-member panel of the Board of Immigration Appeals ruled against EsquivelQuintana, concluding that “sexual abuse of a minor” includes convictions under section 261.5(c). 

In re Esquivel-Quintana, 26 I. & N. Dec. 469, 477 (B.I.A. 2015). First, the Board stated that it 

would determine whether convictions under section 261.5(c) categorically constitute “sexual 

abuse of a minor” without looking at the specific facts of the case, such as Esquivel-Quintana’s 

age or his victim’s. Id. at 472. The Board did so based on Taylor v. United States, 495 U.S. 575 

(1990), and Descamps v. United States, 133 S. Ct. 2276 (2013), which call for a categorical 

approach to assessing prior convictions in sentencing under the Armed Career Criminal Act. 

The Board went on to conclude that “sexual abuse of a minor” categorically encompassed 

convictions under section 261.5(c). The Board stated that “in the context of State statutory rape 

offenses, a statute that includes 16- or 17-year-olds must also contain a meaningful age 

differential to constitute ‘sexual abuse of a minor.’” Esquivel-Quintana, 26 I. & N. Dec. at 475. 

The Board did not specify exactly what constitutes a “meaningful” age differential, but held that 

the age differential in California’s statute—which requires an age gap of more than three years—

was meaningful. Esquivel-Quintana now petitions for review of the Board’s decision. 

II 

Chevron supplies the appropriate framework for reviewing the Board’s interpretation of 

“sexual abuse of a minor.” Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984). The Supreme Court and Sixth Circuit have repeatedly held that Chevron deference 

applies to the Board’s interpretations of immigration laws. See Scialabba v. Cuellar de Osorio,

134 S. Ct. 2191, 2203 (2014) (plurality opinion); id. at 2214 (Roberts, C.J., concurring in the 

judgment); Negusie v. Holder, 555 U.S. 511, 516–17 (2009); INS v. Aguirre-Aguirre, 526 U.S. 

415, 424–25 (1999); Kellermann v. Holder, 592 F.3d 700, 702 (6th Cir. 2010); Singh v. 

Gonzales, 451 F.3d 400, 403 (6th Cir. 2006). Several of our sister circuits have specifically 

applied Chevron in cases involving the Board’s interpretation of “sexual abuse of a minor.” See

Velasco-Giron v. Holder, 773 F.3d 774, 776 (7th Cir. 2014); Restrepo v. Attorney Gen. of the 

U.S., 617 F.3d 787, 796 (3d Cir. 2010); Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir. 2001). 

 Two circuits have reached a different conclusion. Amos v. Lynch, 790 F.3d 512, 518–20 

(4th Cir. 2015); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1156–58 (9th Cir. 2008) (en 
No. 15-3101 Esquivel-Quintana v. Lynch Page 4 

banc). But those decisions offer little guidance here. Neither Amos nor Estrada-Espinoza 

involved a published, precedential BIA opinion interpreting the relevant state statute. Amos,

790 F.3d at 518 (“However, the principles of Chevron deference are not applicable to the 

Board’s decision in Amos’s case because, although issued by a three-judge panel of the BIA, it 

was an unpublished decision that does not carry precedential weight.”); Estrada-Espinoza,

546 F.3d at 1157 (noting that the BIA’s decision was a “single-judge, unpublished, nonprecedential” decision). Here, conversely, we owe the BIA’s precedential decision Chevron 

deference. See Lockhart v. Napolitano, 573 F.3d 251, 262 (6th Cir. 2009). Although Amos and 

Estrada-Espinoza could be read to suggest that courts may forego Chevron deference to 

published BIA precedents solely because they establish broad standards, that proposition is, as 

the Seventh Circuit recently noted, at odds with basic black-letter administrative law. VelascoGiron, 773 F.3d at 779; see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974); SEC v. 

Chenery Corp., 332 U.S. 194, 203 (1947). There is not “a single case in which a general 

conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron

deference for an exercise of that authority within the agency’s substantive field.” City of 

Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013).

Generic-Definition Argument. Esquivel-Quintana is misguided in relying on Taylor for 

the proposition that we must ignore Chevron and create our own definition of “sexual abuse of a 

minor.” Taylor involved the Armed Career Criminal Act, not the Immigration and Nationality 

Act. While it is true that both statutes attach consequences to certain prior convictions, there are 

important differences as well. 

 The generic-definition approach established in Taylor with respect to the crime of 

burglary is intimately connected with the Armed Career Criminal Act’s legislative history. 

495 U.S. at 581–87. The Taylor Court began by discussing the first version of the Armed Career 

Criminal Act, passed in 1984, which specifically defined “burglary” as “any felony consisting of 

entering or remaining surreptitiously within a building that is property of another with intent to 

engage in conduct constituting a Federal or State offense.” Id. at 581. The Court then recounted 

how Congress deleted this definition, quoting extensively from committee hearing testimony and 

statements by members of Congress. Id. at 582–87. The Court concluded that “[t]he legislative 
No. 15-3101 Esquivel-Quintana v. Lynch Page 5 

history as a whole suggests that the deletion of the 1984 definition of burglary may have been an 

inadvertent casualty of a complex drafting process,” and on that basis adopted a generic 

definition of burglary. Id. at 589–90. Given Taylor’s intimate connection with the Armed 

Career Criminal Act’s legislative history, we decline to read Taylor as requiring us to adopt an 

identical approach to interpreting the phrase “sexual abuse of a minor,” which was added to the 

Immigration and Nationality Act in 1996. See Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009–546, 3009–627. 

Rule of Lenity. Esquivel-Quintana argues that we should apply the rule of lenity and 

construe “sexual abuse of a minor” in his favor. According to the rule of lenity, when a criminal 

statue is ambiguous, that ambiguity must be resolved in the defendant’s favor. While this case is 

civil in nature, Esquivel-Quintana contends that we should still apply the rule of lenity because 

the definition of “sexual abuse of a minor” has criminal applications. 

 The phrase “sexual abuse of a minor” is listed in 8 U.S.C. § 1101(a)(43)(A) as one of 

many crimes that constitute an aggravated felony. In addition to serving as a basis for removal, 

id. § 1227(a)(2)(A)(iii), an aggravated-felony conviction can also result in an enhanced sentence 

for aliens who are subsequently convicted of the crime of illegal reentry, id. § 1326(b)(2). The 

term aggravated felony is also used to define the crime of assisting certain inadmissible aliens 

with entering the United States illegally. Id. § 1327. Thus, the phrase “sexual abuse of a minor” 

has both civil and criminal applications. 

 An increasingly emergent view asserts that the rule of lenity ought to apply in civil cases 

involving statutes that have both civil and criminal applications. See Whitman v. United States, 

135 S. Ct. 352, 352–54 (2014) (Scalia, J., statement respecting denial of certiorari); Carter v. 

Welles-Bowen Realty, Inc., 736 F.3d 722, 729–36 (6th Cir. 2013) (Sutton, J., concurring). This 

view is based on two principles. First, statutory terms should not have different meanings in 

different cases—“a statute is not a chameleon.” Carter, 736 F.3d at 730. Second, ambiguous 

statutes must be construed in favor of defendants under the rule of lenity. The rule of lenity 

ensures that the public has adequate notice of what conduct is criminalized, and preserves the 

separation of powers by ensuring that legislatures, not executive officers, define crimes. Taken 
No. 15-3101 Esquivel-Quintana v. Lynch Page 6 

together, these two principles lead to the conclusion that the rule of lenity should apply in civil 

cases involving ambiguous statutes with criminal applications. 

 There are compelling reasons to apply the rule of lenity in such cases. Giving deference 

to agency interpretations of ambiguous laws with criminal applications would allow agencies to 

“create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that 

the laws contain.” Whitman, 135 S. Ct. at 353. Writing criminal laws is the legislature’s 

prerogative, not the executive’s. Furthermore, deferring to agency interpretations of criminal 

laws violates the principle that “criminal laws are for courts, not for the Government, to 

construe.” Abramski v. United States, 134 S. Ct. 2259, 2274 (2014). Left unchecked, deference 

to agency interpretations of laws with criminal applications threatens a complete undermining of 

the Constitution’s separation of powers. 

 Nonetheless, while this view is increasing in prominence, the Supreme Court has not 

made it the law. To the contrary, the Court has reached the opposite conclusion. In Babbitt v. 

Sweet Home Chapter of Communities for a Great Oregon, the Court deferred to the Secretary of 

the Interior’s definition of the term “take” in the Endangered Species Act of 1973, even though 

violations of the act could be enforced by criminal penalties. 515 U.S. 687, 703–04 (1995). The 

Court expressly considered and rejected the rule of lenity: “We have never suggested that the 

rule of lenity should provide the standard for reviewing facial challenges to administrative 

regulations whenever the governing statute authorizes criminal enforcement.” Id. at 704 n.18. 

 Since then, the Supreme Court has suggested that the rule of lenity should apply in such 

cases. In Leocal v. Ashcroft, the Court omitted any discussion of Chevron in reviewing a Board 

of Immigration Appeals decision interpreting 8 U.S.C. § 1101(a)(43)(F). 543 U.S. 1, 8–13 

(2004). That provision states that a conviction for a “crime of violence (as defined in section 16 

of Title 18, but not including a purely political offense)” counts as an aggravated felony if it is 

punishable by at least one year of imprisonment. The Court held that “crime of violence” did not 

include the petitioner’s Florida DUI conviction, and added in dicta in a footnote: 

Even if § 16 lacked clarity on this point, we would be constrained to interpret any 

ambiguity in the statute in petitioner’s favor. Although here we deal with § 16 in 

the deportation context, § 16 is a criminal statute, and it has both criminal and 

noncriminal applications. Because we must interpret the statute consistently, 
No. 15-3101 Esquivel-Quintana v. Lynch Page 7 

whether we encounter its application in a criminal or noncriminal context, the rule 

of lenity applies. 

Id. at 11 n.8. Similarly, in Kasten v. Saint-Gobain Performance Plastic Corp., 131 S. Ct. 1325, 

1336 (2011), and Maracich v. Spears, 133 S. Ct. 2191, 2209 (2013), the Court suggested that the 

rule of lenity could apply if an ambiguity existed, but had no occasion to apply it because the 

statute was unambiguous. 

 While the Court has begun to distance itself from Babbitt, we do not read dicta in Leocal

and subsequent cases as overruling Babbitt, or requiring that we apply the rule of lenity here in 

Esquivel-Quintana’s civil removal proceeding. As an “inferior” court, our job is to adhere 

faithfully to the Supreme Court’s precedents. The Supreme Court has said that we must follow 

Chevron in cases involving the Board’s interpretations of immigration laws. See Scialabba,

134 S. Ct. at 2203 (plurality opinion); id. at 2214 (Roberts, C.J., concurring in the judgment); 

Negusie, 555 U.S. at 516–17; Aguirre-Aguirre, 526 U.S. at 424–25. This is not an 

“extraordinary” case. King v. Burwell, 135 S. Ct. 2480, 2488 (2015). Chevron applies. 

III 

 Under Chevron, we employ the traditional tools of statutory interpretation and ask 

whether the statute is ambiguous; if it is, we defer to the agency’s permissible interpretations. As 

some have noted, a more elegant formulation of the inquiry might simply be: Has the agency 

permissibly interpreted the statute? See, e.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 

218 & n.4 (2009); Singh, 451 F.3d at 403 (“We . . . defer to the BIA’s reasonable interpretations 

of the INA.” (quoting Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005))); Matthew C. 

Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597 (2009). 

 The Board permissibly interpreted “sexual abuse of a minor” as including violations of 

California Penal Code § 261.5(c). When Congress used the ambiguous words “sexual abuse of a 

minor,” it declined to specify a particular age of majority or age differential for statutory rape. 

Nowhere in the statute did Congress specify the definitions of “sexual abuse” or “minor.” 

Congress left these questions open to interpretation by the Board of Immigration Appeals. 

See Contreras v. Holder, 754 F.3d 286, 293 (5th Cir. 2014) (“Here, there is no question that 

Congress has not directly spoken on the definition of sexual abuse of a minor.”). 
No. 15-3101 Esquivel-Quintana v. Lynch Page 8 

 Faced with this ambiguity, the Board has interpreted “sexual abuse” by referring to the 

definition of the term in 18 U.S.C. § 3509(a)(8). In re Rodriguez-Rodriguez, 22 I. & N. Dec. 

991, 995–96 (B.I.A. 1999). That provision defines “sexual abuse” as “the employment, use, 

persuasion, inducement, enticement, or coercion of a child to engage in, or assist another to 

engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual 

exploitation of children, or incest with children.” Furthermore, the Board draws its definition of 

“minor” from 18 U.S.C. § 3509(a)(2), which defines a “child” as a person under eighteen. In re 

V-F-D-, 23 I. & N. Dec. 859, 862 (B.I.A. 2006). In choosing eighteen as the age of majority, the 

Board acknowledged the existence of a statute—18 U.S.C. § 2243(a), titled “sexual abuse of a 

minor or ward”—that makes it a federal crime to have sex with a person who is less than sixteen 

years old, at least twelve years old, and at least four years younger than the perpetrator. Id. at 

861–62. The Board declined to limit the meaning of “sexual abuse of a minor” to this particular 

definition, drawn from a different statute passed at a different time, because in its view 

“Congress intended to expand, rather than limit, the age at which a person is considered a 

minor.” Id. at 862 n.7. The Board elaborated on its interpretation of “sexual abuse of a minor” 

in this case, holding that the phrase includes convictions under a state statutory-rape law that 

protects sixteen- and seventeen-year-old victims while also requiring a meaningful age 

differential between the perpetrator and the victim. Esquivel-Quintana, 26 I. & N. Dec. at 477. 

 Nothing forbids the Board’s interpretation. Indeed, there are strong arguments that 

support it. As the Seventh Circuit has noted, multiple criminal provisions of the United States 

Code define a “minor” as a person under eighteen. Velasco-Giron, 773 F.3d at 775. For the 

crime of “sexual exploitation of children,” “minor” is defined as any person under the age of 

eighteen. 18 U.S.C. §§ 2251, 2256(1). Eighteen is also the age of majority for the crime of 

transporting a “minor” with intent to engage in criminal sexual activity. 18 U.S.C. § 2423(a). 

The Fifth Circuit has held that, as a matter of federal law under the Sentencing Guidelines, a 

“minor” in the phrase “sexual abuse of a minor” is a person under the age of eighteen. United 

States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc). With so many sources defining 

the age of majority as eighteen, the Board’s interpretation certainly qualifies as permissible. 
No. 15-3101 Esquivel-Quintana v. Lynch Page 9 

 Following the narrow definition of “minor” in § 2243(a) is neither compelled nor 

sensible. That statute applies only when the sexual-abuse victim is at least twelve years old. 

Victims younger than twelve are protected by a separate statute, § 2241(c), under the crime of 

“aggravated sexual abuse.” Using § 2243(a) as the sole definer of “minor” would mean that 

abuse against an eleven-year-old does not constitute “sexual abuse of a minor.” Furthermore, it 

would mean that a seventeen-year-old abusing a twelve-year-old has committed “sexual abuse of 

a minor,” but a fifteen-year-old doing the same thing has not done so. 

 The age requirements of § 2243(a) were crafted with § 2241(c) in mind. Those two 

provisions were enacted side-by-side in the Sexual Abuse Act of 1986, Pub. L. No. 99-646, § 87 

100 Stat. 3620, 3620–21, which came into effect ten years before the phrase “sexual abuse of a 

minor” was added to 8 U.S.C. § 1101(a)(43)(A) in the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996, 110 Stat. at 3009–627. We should not haphazardly 

import the requirements of § 2243(a) into a completely different statute. 

 Congress could have included a cross-reference to § 2243(a) if it wanted to incorporate 

that definition of statutory rape. The Immigration and Nationality Act is replete with crossreferences to federal statutes defining crimes that count as aggravated felonies. See 8 U.S.C. 

§ 1101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K)(ii)–(iii), (L), (M)(ii), (N), (O), (P). When 

Congress declined to cross-reference a federal statute, it did so because it wanted to sweep in a 

broad array of state-law convictions. Cf. 8 U.S.C. § 1101(a)(43) (“The term [aggravated felony] 

applies to an offense described in this paragraph whether in violation of Federal or State law . . . 

.”). “[W]here Congress includes particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 

(1983). Importing word-for-word the statutory-rape requirements of § 2243(a) would be 

contrary to Congress’s intent to allow state-law convictions to serve as grounds for removal. 

 The Second, Third, and Seventh Circuits all explicitly considered and rejected the 

argument that “sexual abuse of a minor” is limited to statutes that go no further than § 2243(a). 

The Second Circuit concluded that it is “unlikely in the extreme that Congress intended such a 

lowest common denominator result,” and upheld the removal of an alien convicted under New 
No. 15-3101 Esquivel-Quintana v. Lynch Page 10 

York’s statutory-rape law. Mugalli, 258 F.3d at 60. The Third Circuit stated that it would not 

“conjoin the meaning of words used in separate and distinct statutes,” and upheld the removal of 

an alien convicted under New Jersey’s “aggravated criminal sexual contact” law. Restrepo, 

617 F.3d at 794. The Seventh Circuit observed that the Board “must administer . . . 8 U.S.C. 

§ 1101(a)(43)(A), not 18 U.S.C. § 2243(a),” and upheld the removal of an alien convicted under 

the precise California statute involved in this case. Velasco-Giron, 773 F.3d at 777. We join the 

Second, Third, and Seventh Circuits in rejecting the unwarranted adoption of § 2243(a), and hold 

that the Board permissibly interpreted “sexual abuse of a minor” as including convictions under 

California Penal Code § 261.5(c). 

IV 

 If Congress had supplied its own definition of “sexual abuse of a minor” in 8 U.S.C. 

§ 1101(a)(43)(A), this case would be easy. But Congress did not. That is why the Board of 

Immigration Appeals chose to interpret the phrase through case-by-case adjudication. Supreme 

Court and Sixth Circuit precedent require us to defer to the Board’s interpretation if it is 

permissible. 

 The Board permissibly interpreted “sexual abuse of a minor” as encompassing 

convictions under California Penal Code § 261.5(c). Nothing in the statute forbids this 

interpretation. Esquivel-Quintana’s petition is DENIED. 

 
No. 15-3101 Esquivel-Quintana v. Lynch Page 11 

_____________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________ 

SUTTON, Circuit Judge, concurring in part and dissenting in part. I agree with every 

part of the court’s opinion but one: that a sentence from a footnote in a 1995 Supreme Court 

opinion requires us to apply Chevron deference, as opposed to the rule of lenity, to an agency 

interpretation of an ambiguous statute that has civil and criminal applications. See Babbitt v. 

Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 794 n.18 (1995). 

Let me start with our many areas of agreement. 

Chevron permits agencies to fill gaps in civil statutes that Congress has delegated 

authority to the agency to interpret. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837 (1984). Under the doctrine, courts presume that, when Congress leaves an 

ambiguity in an agency-administered statute, it intends the agency to fill the gap. Id. at 843–44. 

But Chevron has no role to play in construing criminal statutes. In 227 years and 

counting, the federal courts have never presumed that, when an ambiguity arises in a criminal 

statute, the congressional silence signals that Congress wants an executive-branch agency to fill 

the gap. For all of the theories of Chevron that have filled the U.S. Reports and the Federal 

Reporter, to say nothing of the law journals, the idea that Chevron is a tool for construing 

criminal statutes has yet to make an appearance. That is because criminal statutes “are for 

courts, not for the Government, to construe.” Abramski v. United States, 134 S. Ct. 2259, 2274 

(2014). The doctrine does not give the Department of Justice (or for that matter any other federal 

agency) implied gap-filling authority over ambiguous criminal statutes. 

Otherwise, that would leave this distasteful combination: The prosecutor would have the 

explicit (executive) power to enforce the criminal laws, an implied (legislative) power to fill 

policy gaps in ambiguous criminal statutes, and an implied (judicial) power to interpret 

ambiguous criminal laws. Cf. The Federalist No. 47, at 297–99 (James Madison) (Clinton 

Rossiter ed., 1961). And it would permit this aggregation of power in the one area where its 

division matters most: the removal of citizens from society. 
No. 15-3101 Esquivel-Quintana v. Lynch Page 12 

There may be good reason to debate the merits of Chevron today. Compare Philip 

Hamburger, Is Administrative Law Unlawful? (2014), with Adrian Vermeule, No, 93 Tex. L. 

Rev. 1547 (2015) (book review). But all can agree that, whatever the connection between 

ancient royal prerogatives and the like to modern agency law, Chevron has no role to play in the 

interpretation of criminal statutes. 

The application of Chevron to criminal laws also would leave no room for the rule of 

lenity, a rule that resolves ambiguities in criminal statutes in favor of the individual and a rule of 

construction that Chief Justice Marshall described as “perhaps not much less old than 

construction itself.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). The rule 

“rests on concerns about notice (the state ought to provide fair warning of what violates the 

criminal laws) and separation of powers (Congress, not agencies or courts, defines crimes).” 

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729 (6th Cir. 2013) (Sutton, J., concurring). 

So far so good. 

But what happens when the same statute has criminal and civil applications? May 

Congress sidestep these requirements by giving criminal statutes a civil application? The answer 

is no. The courts must give dual-application statutes just one interpretation, and the criminal 

application controls. Statutes are not “chameleon[s]” that mean one thing in one setting and 

something else in another. Id. at 730. Because a single law should have a single meaning, the 

“lowest common denominator”—including all rules applicable to the interpretation of criminal 

laws—governs all of its applications. Clark v. Martinez, 543 U.S. 371, 380 (2005). That 

explains why United States v. Thompson/Center Arms Co. applied the rule of lenity to a civil tax 

case that turned on language that had civil and criminal applications. 504 U.S. 505, 517–18 & 

n.10 (plurality opinion); id. at 519 (Scalia, J., concurring in the judgment). Time, time, and time 

again, the Court has confirmed that the one-interpretation rule means that the criminal-law 

construction of the statute (with the rule of lenity) prevails over the civil-law construction of it 

(without the rule of lenity). When a single statute has twin applications, the search for the least 

common denominator leads to the least liberty-infringing interpretation. See, e.g., Maracich v. 

Spears, 133 S. Ct. 2191, 2209 (2013); Kasten v. Saint-Gobain Performance Plastics Corp., 
No. 15-3101 Esquivel-Quintana v. Lynch Page 13 

563 U.S. 1, 16 (2011); Clark, 543 U.S. at 380; Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004); 

Scheidler v. Nat’l Org. for Women, 537 U.S. 393, 408–09 (2003). 

The provision at issue in today’s case is subject to the one-statute/one-interpretation rule 

because it has criminal and civil applications. The Immigration and Nationality Act makes a 

state or federal conviction for “sexual abuse of a minor” an “aggravated felony.” 8 U.S.C. 

§ 1101(a)(43)(A). The Act subjects aliens who have committed aggravated felonies (1) to civil 

consequences, most notably removal from the country, id. § 1227(a)(2)(A)(iii); see also id.

§ 1229b(a)(3), and (2) to criminal consequences, most notably increasing the maximum prison 

term for illegal reentry into the United States, id. § 1326(b)(2); see also id. § 1327. 

The phrase “sexual abuse of a minor” is ambiguous as applied to the California law that 

Esquivel-Quintana violated. The state law prohibits sexual intercourse with anyone under 

eighteen, provided the perpetrator is not the victim’s spouse and is more than three years older 

than the victim. Cal. Penal Code § 261.5(a), (c). The age requirement found in statutory-rape 

statutes like this one turns on the premise that those below a certain age generally cannot consent 

to sex. The ambiguity arises over when a “minor” can consent and when the sexual act ceases to 

be abusive. The minimum conduct criminalized by the California law involves seventeen-yearold victims. Id. § 261.5(a). Because the meaning of “sexual abuse of a minor” is a matter of 

federal law, the question is whether California’s statutory-rape law includes these victims under 

a “‘generic’ federal definition.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). 

A division in the circuits over the point suggests this answer: maybe, maybe not. One 

court has concluded that the phrase includes statutory-rape convictions involving seventeen-yearold victims. See, e.g., Contreras v. Holder, 754 F.3d 286, 294–96 (5th Cir. 2014). One court has 

said it does not. E.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1157 n.7, 1158–60 (9th Cir. 

2008) (en banc). And at least one court isn’t sure. E.g., Velasco-Giron v. Holder, 773 F.3d 774, 

776–78 (7th Cir. 2014). 

The rest of the federal criminal code doesn’t make things any easier. Title 18 includes a 

crime entitled “sexual abuse of a minor,” a statutory-rape crime that requires the victim to be 

under sixteen. 18 U.S.C. § 2243(a). But it also includes protections for “child” victims of 

“sexual abuse” in a setting in which the legislature uses the terms “minor” and “child” 
No. 15-3101 Esquivel-Quintana v. Lynch Page 14 

interchangeably, see id. § 2251, and applies those protections to victims under eighteen, id.

§ 3509(a)(2), (8). As a matter of history, the term “minor” has always been a fluid concept. It 

referred to those under twenty-one at the founding. See 1 William Blackstone, Commentaries 

*463. 

Adding to the ambiguity is the question of perspective—which of two ways the 

interpreter looks at the statute and how closely it ties the word “minor” to the term “sexual 

abuse.” Cf. United States v. Castleman, 134 S. Ct. 1405, 1411–12 (2014); id. at 1420 (Scalia, J., 

concurring in part and concurring in the judgment). At one end, the word “minor” taken by itself 

might generally be said to refer to “[s]omeone who has not reached full legal age.” Black’s Law 

Dictionary 1147 (10th ed. 2014). The full legal age, the “age of majority,” is typically 

eighteen—at least in most instances today. Id. at 73. This approach led the Fifth Circuit and the 

Board of Immigration Appeals to conclude “sexual abuse of a minor” captures many statutoryrape crimes, with each State allowed to set an age (no higher than eighteen) below which minors 

generally cannot consent. Contreras, 754 F.3d at 294–96; In re Esquivel-Quintana, 26 I. & N. 

Dec. 469, 471 (B.I.A. 2015); see also United States v. Rodriguez, 711 F.3d 541, 559–62 (5th Cir. 

2013) (en banc). 

At the other end, a court might just as fairly focus on the reality that the word “minor” is 

tied to “sexual abuse” and statutory-rape laws. In that context, the word “minor” would not 

necessarily refer to “full legal age” but to the age at which a State no longer deems sex 

nonconsensual (and therefore abusive). See Black’s Law Dictionary 1451. That age, the “age of 

consent,” is typically sixteen. Id. at 73; see United States v. Rangel-Castaneda, 709 F.3d 373, 

377 (4th Cir. 2013). This approach led the Ninth Circuit to decide that statutory-rape convictions 

amount to “sexual abuse of a minor” only if they require victims to be below the age of sixteen. 

Estrada-Espinoza, 546 F.3d at 1158. The Fourth Circuit took a similar approach when 

interpreting the same phrase in the Sentencing Guidelines. Rangel-Castaneda, 709 F.3d at 380–

81. 

Either reading has much to commend it, making the phrase ambiguous and making this a 

classic occasion for applying the rule of lenity. All clues considered, the phrase “sexual abuse of 
No. 15-3101 Esquivel-Quintana v. Lynch Page 15 

a minor” may, but may not, include convictions under California’s § 261.5(c), and for that reason 

the rule of lenity should end the case in favor of the immigrant. 

The application of Chevron to this ambiguity of course leads to a different result. 

A statute sufficiently ambiguous to invoke the rule of lenity assuredly is sufficiently ambiguous 

to trigger Chevron deference. And adjudicative decisions by the Board typically receive 

Chevron deference. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). That 

means, as the court explains, that the Board’s decision that Esquivel-Quintana’s § 261.5(c) 

conviction amounts to “sexual abuse of a minor” prevails under Chevron deference. But it also 

means, as the court explains, that this interpretation would not prevail under the rule of lenity, 

where “sexual abuse of a minor” would cover no more than those statutory-rape crimes that set 

the age of consent at sixteen or less. 

Yet the application of Chevron in this setting, as the court acknowledges, “threatens a 

complete undermining of the Constitution’s separation of powers,” while the application of the 

rule of lenity “preserves” them by maintaining the legislature as the creator of crimes. Supra at 

5–6. Lenity also ensures fair notice of criminal consequences, precludes the same agency from 

altering criminal laws back and forth over time (even over conflicting judicial interpretations, see

Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980–85 (2005), and 

even without input from Congress), and ensures that the same “[r]ules of interpretation bind all 

interpreters, administrative agencies included.” Carter, 736 F.3d at 729, 731 (Sutton, J., 

concurring). Lenity also avoids several “uninvited oddities [that] arise if courts but not agencies 

must adhere to the rule of lenity.” Id. at 732–33 (collecting some of them). By applying lenity 

in this setting, last of all, courts would avoid incentivizing Congress to enact hybrid statutes that 

duck under lenity’s imperatives, to say nothing of other imperatives in construing criminal laws. 

Where I part ways with the court is over its conclusion that, even though the rule of lenity 

ought to control here, we must defer to the government’s position under Chevron all the same. 

The disagreement boils down to the meaning of one sentence in one footnote. Babbitt v. 

Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), involved a facial 

challenge to a regulation interpreting a provision of the Endangered Species Act that imposed 

both civil and criminal liability. Id. at 691–93. The Supreme Court decided it “owe[d] some 
No. 15-3101 Esquivel-Quintana v. Lynch Page 16 

degree of deference” to the Department of Labor’s interpretation, id. at 703–04, and cited 

Chevron in the process. Then, in a footnote, it said that it “ha[d] never suggested that the rule of 

lenity should provide the standard for reviewing facial challenges to administrative regulations 

whenever the governing statute authorizes criminal enforcement.” Id. at 704 n.18. This 

statement does not, as the court claims, require us to apply Chevron. If it did, the footnote would 

have (silently) overruled an entire line of cases that “hold that, if Congress wants to assign 

responsibility for crime definition to the executive, it must speak clearly.” Carter, 736 F.3d at 

734 (Sutton, J., concurring); see, e.g., United States v. Grimaud, 220 U.S. 506, 519 (1911); see 

also Touby v. United States, 500 U.S. 160, 165–67 (1991). And the footnote expressly limits 

itself to “facial challenges,” the sorts of claims that raise arguments—say that the regulation 

exceeded the agency’s authority and thus was unenforceable in all of its applications—that have 

no connection to the rule of lenity. Today’s case does not involve a facial challenge. 

Whatever this footnote and its inscrutable reference to facial challenges meant then, cases 

since Babbitt have not followed the reading the court finds itself constrained to follow. In one 

case, the Court declined to address how the rule of lenity applied in relation to Chevron, hardly 

necessary if Babbitt answered the question for cases that did not involve facial challenges to 

regulations. See Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 & n.8 

(2001). In another case, the Court concluded that the rule of lenity provided the rule of decision, 

hardly possible if the issue had been decided the other way. If a statute “has both criminal and 

noncriminal applications,” the Court explained, the presence of ambiguity triggers the rule of 

lenity “[b]ecause we must interpret the statute consistently, whether we encounter its application 

in a criminal or noncriminal context.” Leocal, 543 U.S. at 11 n.8. And in a concurrence from 

the denial of certiorari from a securities law case, two Justices agreed that “Babbitt’s drive-by” 

footnote “deserves little weight.” Whitman v. United States, 135 S. Ct. 352, 354 (Scalia, J., 

statement respecting denial of certiorari, joined by Thomas, J.). 

Perhaps something else gives the court pause today—the potential sticker shock of 

transforming a government-always-wins canon (Chevron) into a government-always-loses canon 

(rule of lenity). But that may not be where the Court’s cases necessarily lead. The Court’s 

recent cases, as shown, just require two things: that the one-statute/one-interpretation rule 
No. 15-3101 Esquivel-Quintana v. Lynch Page 17 

governs dual-role statutes, and Chevron does not apply to that one interpretation. Those two 

requirements, however, may not dictate when the rule of lenity governs and when it does not. 

Yes, the rule of lenity frequently may dictate that one interpretation but that need not invariably 

be the case. Statutory “ambiguity” may mean one thing under Chevron and something else 

under the rule of lenity. If American Inuits have more than one way to describe snow, American 

lawyers may have more than one way to describe ambiguity. See Bill Bryson, The Mother 

Tongue 14–15 (2001). Under Chevron, courts will defer to an agency interpretation if the 

relevant statute “is silent or ambiguous with respect to the specific issue.” 467 U.S. at 843. It 

remains to be seen whether the same type of ambiguity triggers the rule of lenity. See, e.g.,

Huddleston v. United States, 415 U.S. 814, 831 (1974). Chevron’s domain and the rule of 

lenity’s domain thus may not necessarily overlap in some cases. 

What matters for present purposes is that Chevron has no role to play in construing 

hybrid statutes. Whether the rule of lenity necessarily will provide the answer in all of these 

cases is another matter, one for the Court ultimately to decide. In some settings, it may turn out, 

the Court simply will apply the normal rules of construction unaided by a zero-sum default rule, 

and will look to the rule of lenity only in the kinds of interpretive disputes that require it. 

One last point. An exception to Chevron for dual-role statutes would not be the least bit 

unusual. Deference under that rule is categorically unavailable, the Supreme Court has held, in 

many settings: (1) agency interpretations of statutes the agency is not “charged with 

administering,” Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997); (2) agency 

interpretations of “the scope of the judicial power vested by [a] statute,” such as the availability 

of a private right of action, Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–50 (1990); see

Alexander v. Sandoval, 532 U.S. 275, 288–91 (2001); (3) agency interpretations that result from 

procedures that were not “in the exercise” of the agency’s authority “to make rules carrying the 

force of law,” United States v. Mead Corp., 533 U.S. 218, 226–27 (2001); (4) agency 

interpretations with respect to “extraordinary cases” where it is unlikely Congress 

“intended . . . an implicit delegation” to the agency, King v. Burwell, 135 S. Ct. 2480, 2488–89 

(2015); and (5) agency interpretations of criminal statutes, Abramski, 134 S. Ct. at 2274. 

An exception for statutes with civil and criminal consequences fits easily alongside these 
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exceptions and originates from the same place as the last one. Indeed, it is exceedingly difficult 

to understand how Chevron could prevail in a dual-statute case. Since the founding, it has been 

the job of Article III courts, not Article II executive-branch agencies, to have the final say over 

what criminal laws mean. I would honor that imperative here and reject the idea that Congress 

can end-run this principle by giving a criminal statute a civil application. 

For these reasons, I concur with much of the court’s reasoning but must disagree with its 

conclusion.