Cespedes v. Lynch
805 F.3d 1274
| 10th Cir. | 2015Background
- Jose Ramon Cespedes, Venezuelan native, became a conditional lawful permanent resident in 2012 and was later charged in Utah state court with domestic violence.
- A Utah pretrial protective order under the Cohabitant Abuse Procedures Act prohibited the defendant from contacting the protected party (no-contact provision).
- In November 2013 Cespedes pleaded guilty to attempted violation of that protective order (state conviction for violating the no-contact term).
- DHS charged Cespedes with removability under 8 U.S.C. § 1227(a)(2)(E)(ii), which makes removable an alien who violates the portion of a protection order that "involves protection against credible threats of violence, repeated harassment, or bodily injury."
- An Immigration Judge ordered removal; the Board of Immigration Appeals affirmed, relying on prior BIA and Ninth Circuit reasoning that no-contact provisions fall within § 1227(a)(2)(E)(ii).
- The Tenth Circuit panel applied Chevron deference to the BIA’s interpretation and affirmed: violating a no-contact provision that was issued to prevent domestic violence qualifies under § 1227(a)(2)(E)(ii).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether violating a no-contact provision of a protective order falls within § 1227(a)(2)(E)(ii) removability clause | Cespedes argued the BIA was wrong; a mere contact violation need not "involve" protection against threats of violence or bodily injury | Government (and BIA) argued that no-contact provisions are a recognized tool to prevent repeated domestic violence and thus "involve protection" against threats, harassment, or bodily injury | Court held that violating a no-contact provision that was issued to prevent domestic violence falls within § 1227(a)(2)(E)(ii) (affirms BIA approach) |
| Whether the state court must separately determine that the violated term "involves protection" for federal removability | Cespedes argued the statute’s phrase "whom the court determines" requires the state convicting court to make that functional determination | Government argued Congress did not expect state courts to make such anticipatory findings; an IJ/BIA may decide whether the term involves protection | Court held state courts need only find violation of their order; IJs/BIA decide whether the violated provision "involves protection" under the federal statute |
| Whether Chevron deference applies to BIA interpretation | Cespedes contended the BIA’s reading was incorrect and should not control | Government relied on Chevron to defend BIA’s reasonable construction of ambiguous statutory language | Court applied Chevron, found the statute ambiguous and sustained the BIA’s reasonable "nips-in-the-bud" interpretation |
| Scope: Are all protective-order provisions covered? | Cespedes implied narrow reading to avoid criminalizing minor contact | Government/BIA distinguished covered provisions (no-contact, stay-away) from non-covered ones (e.g., counseling or payment orders) | Court agreed not all provisions are covered; no-contact/stay-away provisions that protect against violence/harassment are covered |
Key Cases Cited
- Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009) (upheld removability for violation of protective-order no-contact provision, even for phone calls)
- Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) (applied Alanis-Alvarado reasoning to stay-away order violations)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (framework for judicial deference to reasonable agency interpretations of ambiguous statutes)
- Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (discusses deference to BIA interpretations)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (principle that courts need not expect state courts to make findings irrelevant to state convictions)
- United States v. Hayes, 555 U.S. 415 (U.S. 2009) (practical considerations support federal constructions that avoid imposing unusual state-court factfinding burdens)