Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).
Argument: The Court should grant certiorari to determine whether the rule of lenity applies when a court confronts a federal statutory provision that has both civil and criminal applications and that an agency has interpreted. Section 1101 (a)(43) has extensive criminal applications, with substantial penal consequences. This Court should grant certiorari to reaffirm the important principle that the rule of lenity applies when courts interpret ambiguous statutory provisions like section 1101(a)(43) that carry both civil and criminal applications. This case is a good vehicle for addressing the applicability of the rule of lenity in cases involving "hybrid" civil-criminal statutory provisions. Certiorari is warranted because BIA's and the Sixth Circuit's mistaken understanding of the categorical approach would entail significant practical consequences for attorneys and their clients. The BIA and the Sixth Circuit failed to define the relevant elements of the generic offense of "sexual abuse of a minor," leading to the erroneous result in this case. The misapplication of the categorical approach in this case would create major difficulties for attorneys and their clients.