VIEWS: 10 PAGES: 31 CATEGORY: Law POSTED ON: 6/18/2010
Estrada-Espinoza v. Mukasey examines the impact that interpreting one crime, "sexual abuse of a minor," can have on the immigration system, the judicial system, and the lives of non-citizens. While debate on the impact of the Chevron doctrine continues, in the immigration context, both Congress and the Supreme Court have indicated that the doctrine is especially important. Where the BIA exercises its power to interpret provisions within its governing statute in published, precedential opinions, circuit courts should defer unless Congress's intent is clear or the interpretation is unreasonable. The Ninth Circuit properly declined deference to the BIA's definition of "sexual abuse of a minor" because the agency had not issued a precedential opinion carrying the force of law. However, the BIA will likely issue a precedential opinion defining the term as it did with other contested phrases in the INA. When faced with a substantive challenge to the BIA's definition of "sexual abuse of a minor," the Ninth Circuit should hold that the phrase is unambiguous. This result is mentioned in Estrada-Espinoza v. Mukasey and is consistent with a plain meaning analysis of the statute. It is also consistent with the Ninth Circuit's reading of the phrase elsewhere in its case law, as well as with interpretations in other circuits. The Ninth Circuit, in accordance with other circuits, has ruled in the past that the phrase "sexual abuse of a minor" in the INA is unambiguous. When this issue inevitably returns to the Ninth Circuit following a precedential BIA opinion, the court should join the other circuits in finding that Congress spoke clearly.
NINTH CIRCUIT V. BOARD OF IMMIGRATION APPEALS: DEFINING "SEXUAL ABU Enoka Herat Washington Law Review; Aug
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