FERNANDO DIAZ-QUIRAZCO v. WILLIAM P. BARR, Attorney General
No. 16-72387
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed July 23, 2019
Agency No. A200-877-802
Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.
FOR PUBLICATION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 11, 2018 Portland, Oregon
Opinion by Judge Callahan; Dissent by Judge Fisher
SUMMARY*
Immigration
Denying Fernando Diaz-Quirazco‘s petition for review of a decision of the Board of Immigration Appeals, the panel: (1) deferred to the BIA‘s interpretation that the categorical approach does not apply to determining whether an alien‘s violation of a protection order makes him ineligible for cancellation of removal; and (2) deferred to the BIA‘s conclusion that the
The BIA concluded that Diaz-Quirazco was ineligible for cancellation of removal on the basis that an Oregon Court had entered a judgment against him of Contempt of Court under
First, the panel deferred, under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), to the BIA‘s interpretation, in Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (BIA 2018), and Matter of Obshatko, 27 I. & N. Dec. 173 (BIA 2017), that
Under Chevron step one, the panel concluded that the presence of the word “convicted” in
Second, the panel accorded Chevron deference to the BIA‘s interpretation that
Next, the panel concluded that Diaz-Quirazco‘s judgment qualified as a conviction under
Finally, the panel concluded that, although the BIA had not yet decided Obshatko and Medina-Jimenez when it issued its decision in Diaz-Quirazco‘s case and the court generally only considers the grounds relied on by the agency, remand was not appropriate because the BIA‘s decision could be sustained upon its reasoning.
Dissenting, Judge Fisher disagreed with the majority that the BIA adequately reconciled its decision in this case with its precedential decisions interpreting the term “formal judgment of guilt” to require that a conviction arise from a proceeding that is “criminal in nature under the governing laws of the prosecuting jurisdiction.” Judge Fisher would grant the petition and remand to the BIA with instructions to explain why Diaz-Quirazco‘s contempt proceeding was “criminal in nature under the governing laws of the prosecuting jurisdiction,” or to reconsider its precedent setting forth that rule.
COUNSEL
Jesse Maanao (argued), Oregon Immigration Services, Portland, Oregon, for Petitioner.
Tim Ramnitz (argued), Attorney; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
CALLAHAN, Circuit Judge:
Fernando Diaz-Quirazco, a native and citizen of Mexico, petitions for review of an order from the Board of Immigration Appeals (“BIA” or “Board“) dismissing Diaz-Quirazco‘s appeal from a decision by an immigration judge (“IJ“) that Diaz-Quirazco was ineligible for cancellation of removal under the Immigration and Nationality Act (“INA“) because he was convicted of a violation of a protection order. See
We deny Diaz-Quirazco‘s petition. We conclude that the BIA‘s articulation in Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (BIA 2018), and Matter of Obshatko, 27 I. & N. Dec. 173 (BIA 2017), that the categorical approach does not apply to determining whether an alien‘s violation of a protection order under
I.
A.
Diaz-Quirazco claims he entered the United States without inspection in 1997. Diaz-Quirazco and Georgina Martinez-Gonzalez have a child together, who was born in Oregon in September 2003. On July 20, 2010, Martinez-Gonzalez filed a Petition for Restraining Order to Prevent Abuse under the Family Abuse Prevention Act (“FAPA“),
In the petition, Martinez-Gonzalez stated, through an interpreter, that she feared imminent abuse by Diaz-Quirazco and that Diaz-Quirazco had forced himself into her home, forced her to engage in sexual intercourse with him, threatened her with a kitchen knife, physically and verbally abused her in front of their child, and threatened to harm their child. The Circuit Court of the State of Oregon for the County of Marion (the “Oregon Court“) granted Martinez-Gonzalez‘s petition for a restraining
On September 12, 2010, the Marion County Sheriff‘s Office responded to a domestic disturbance call by a complainant, who wished to remain anonymous, at Martinez-Gonzalez‘s residence. Once at Martinez-Gonzalez‘s residence, the police learned and verified that Diaz-Quirazco had been at Martinez-Gonzalez‘s residence in violation of the Restraining Order‘s prohibition against Diaz-Quirazco contacting Martinez-Gonzalez. While the police were speaking with Martinez-Gonzalez and her son,
the complainant called dispatch back to provide Diaz-Quirazco‘s location. The police were dispatched to the specified location; Diaz-Quirazco was arrested.
The Marion County District Attorney filed an information against Diaz-Quirazco, charging him with one count of Contempt of Court under On September 23, 2010, Immigration and Customs Enforcement (“ICE“) detained and interviewed Diaz-Quirazco, and the Department of Homeland Security (“DHS“) filed a Notice to Appear (“NTA“) for removal proceedings against Diaz-Quirazco. On October 6, 2010, Diaz-Quirazco, represented by counsel, appeared before an IJ, admitted the allegations in the NTA, and conceded the charge of removability. The IJ granted Diaz-Quirazco‘s request for a continuance to file applications for asylum, withholding of removal, Convention Against Torture protection, and cancellation of removal. After a hearing, the IJ pretermitted and denied Diaz-Quirazco‘s application for cancellation of removal and granted his request for post-conclusion voluntary departure.1 The IJ held that Diaz-Quirazco met his burden in persuading the court that his testimony and evidence were credible but that Diaz-Quirazco did not satisfy his burden of establishing eligibility for cancellation of removal because he had been convicted of all the elements of the offense of violating a protection order under Furthermore, the IJ found that “although a violation of a FAPA order is not considered a crime under Oregon law, it nonetheless constitutes an offense under [the] INA” because the INA “requires a trial or proceeding girded with the constitutional safeguards that traditionally accompany criminal adjudications... includ[ing] the right to counsel and the State‘s burden to prove the elements of the offense... to ensure fundamental fairness and to establish a conviction for immigration purposes.” Diaz-Quirazco timely appealed the IJ‘s decision. On June 17, 2016, the BIA dismissed Diaz-Quirazco‘s appeal. The BIA held Diaz-Quirazco was statutorily ineligible for cancellation of removal because he had been convicted of an offense under First, the BIA determined that Diaz-Quirazco‘s “offense” resulted in a “conviction” under adjudicate guilt and to impose penalties under Second, under Szalai v. Holder, 572 F.3d 975, 982 (9th Cir. 2009), the BIA affirmed the IJ‘s determination that Diaz-Quirazco‘s “offense” disqualified him from eligibility for cancellation of removal because he violated the stay-away portion of the Restraining Order issued under Oregon‘s FAPA. Diaz-Quirazco timely petitioned to this Court for review of the final order of removal entered by the BIA.3 This case presents two issues. First, whether we should accord deference to the BIA‘s interpretation that “The proper standard of review in immigration proceedings depends on the nature of the decision being reviewed.” Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1208 (9th Cir. 2008). Questions of law are reviewed de novo. Camacho-Cruz v. Holder, 621 F.3d 941, 942 n.1 (9th Cir. 2010) (reviewing de novo legal determinations regarding alien‘s eligibility for cancellation of removal, as well as the determination that a conviction is a crime of violence). We review de novo whether a state or federal conviction is an offense with immigration consequences. Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016) (“We review de novo whether a particular conviction under state law is a removable offense.“). We first address whether we defer to the BIA‘s interpretation in Medina-Jimenez that the categorical approach does not apply in assessing whether an alien is ineligible for cancellation of removal under instances because of its expertise in making such determinations. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010). We follow the Chevron framework, “if the [BIA‘s] decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute).” Id.; see also Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir. 2016) (finding that Chevron deference applies where “there is ‘binding agency precedent on-point’ in the form of a published BIA opinion” (quoting Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir. 2008))). Here, Medina-Jimenez is a published BIA decision that directly addresses the interpretation of the court believes is the best statutory interpretation.” Perez-Guzman, 835 F.3d at 1073–74 (quoting Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (”Brand X“)). The INA identifies several circumstances under which an alien present in the United States is deemed to belong to a “class[] of deportable aliens” and may be removed from the country on those grounds. Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. There is no dispute that Diaz-Quirazco is removable under this statutory section. He pled guilty to engaging in conduct that violated the “no-contact” provision of the Restraining Order. The record supports that Diaz-Quirazco conceded that he violated the portion of the restraining order that issued to prevent him from further committing violence against Martinez-Gonzalez. Because he is removable, Diaz-Quirazco‘s ability to remain in the United States thus hinges on obtaining cancellation of removal. Section 1229b(b) prescribes statutory relief from removal: The Attorney General may cancel removal of... an alien who is... deportable from the United States if the alien... has not been convicted of an offense under section... 1227(a)(2)... of this title, subject to paragraph (5)[.] Under Chevron‘s step one, we conclude that Congress has not directly spoken to the interplay of ‘relevant statutory hook.‘” (alteration in original) (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010))); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015) (“Rooted in Congress’ specification of conviction, not conduct, as the trigger for immigration consequences, the categorical approach is suited to the realities of the system.“). In the second instance, one of the listed removable offenses of The presence of the word “convicted” in Under step two of Chevron, we must determine whether the BIA‘s interpretation of the statute is based on a permissible construction of the statute. Chevron, 467 U.S. at 843. A permissible interpretation is one that is reasonable—or “rational and consistent with the statute.” Sullivan v. Everhart, 494 U.S. 83, 89 (1990) (quoting NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123 (1987)); see also Chevron, 467 U.S. at 843. Here, the BIA interpreted the relevant statutes in Obshatko, 27 I. & N. Dec. at 175, and Medina-Jimenez, 27 I. & N. Dec. at 401. In Obshatko, the BIA determined that “[w]hile we recognize that a conviction may result from an alien‘s violation of a protection order, the plain language of section [1227](a)(2)(E)(ii) makes clear that a ‘conviction’ is not required to establish an alien‘s removability.” 27 I. & N. Dec. at 175. The BIA reasoned that “[t]he categorical approach is ‘[r]ooted in Congress’ specification of conviction, not conduct, as the trigger for immigration consequences.‘” Id. (second alteration in original) (quoting Mellouli, 135 S. Ct. at 1986). “Because Congress did not require a ‘conviction’ under section [1227](a)(2)(E)(ii)” of the INA, the BIA “conclude[d] that it did not intend an alien‘s removability under that section to be analyzed under either the categorical or modified categorical approach.” Id. The BIA explained: Judge should decide (1) whether a State court “determine[d]” that the alien “has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury” and (2) whether the order was “issued for the purpose of preventing violent or threatening acts of domestic violence.” Section [1227](a)(2)(E)(ii) of the [INA]. In Medina-Jimenez, the BIA built on this reasoning to conclude “that the categorical approach does not apply when deciding whether an alien‘s violation of a protection order renders him ‘convicted of an offense’ for purposes of section [1229b](b)(1)(C).” 27 I. & N. Dec. at 401 (quoting Obshatko, 27 I. & N. Dec. at 176–77). The BIA reasoned: The use of the term “convicted” in section [1229b](b)(1)(C) of the [INA] does not mean that the categorical approach must be applied. That section refers to offenses in various provisions of the [INA] that require a conviction, but here we are concerned with an offense that is alleged to be “under” section [1227](a)(2)(E)(ii) of the [INA], for which a conviction is not essential. Although a conviction is necessary in the context of cancellation of removal, it would be incongruous to apply the elements-based categorical approach to section [1227](a)(2)(E)(ii), which focuses on a court‘s determination regarding an alien‘s conduct. Id. at 403 (citation omitted). The BIA articulated a two-step approach for analyzing whether an alien is ineligible for cancellation of removal under The BIA‘s interpretation in Obshatko and Medina-Jimenez is reasonable and consistent with the statute. The BIA reasonably read whether the alien has been “convicted” Although the reasonableness of the BIA‘s interpretation does not depend upon consistency with our prior decisions, it is consistent with our reading in Gonzalez-Gonzalez v. Ashcroft: The plain language of § 1229b indicates that it should be read to cross-reference [the] list of offenses..., rather than the statutes as a whole. The most logical reading of “convicted of an offense under” is that reached by the BIA: “convicted of an offense described under” each of the three [listed] sections. The alternative reading... “convicted under” the statute—is not logical. 390 F.3d 649, 652 (9th Cir. 2004); see id. at 652–53 (explaining that the legislative history further supports our construction, as the final version included the language of the “offense under” the enumerated sections). This is in line with the BIA‘s conduct-based interpretation in Medina-Jimenez. However, our holding in Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) (per curiam), reached a similar result using the categorical/modified approach. We held that a violation of the “stay-away” provision of an Oregon FAPA restraining order qualified as a removable offense. Id. at 982. In effect, we undertook the same analysis as the BIA in Medina-Jimenez: whether the alien has been “convicted of an offense” for purposes of cancellation of removal and whether the state court found that the defendant‘s “offense” involved conduct that violated the portion of the restraining order concerning the protection against violence. We extensively analyzed these questions. Id. at 980–82 (discussing and applying the precedential holding in Alanis-Alvarado v. Holder, 558 F.3d 833, 839–40 (9th Cir. 2009), that “[a] conviction for violating a protection order issued” under Despite our use of the categorical/modified approach in Szalai, the result is the same as in Medina-Jimenez and consistent with the statutory text: (1) whether, for ineligibility of cancellation of removal under An agency‘s reasonable statutory interpretation is entitled to deference, “even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Brand X, 545 U.S. at 980. Because we find that the BIA reasonably interpreted We next address whether we accord deference to the BIA‘s interpretation that Under Medina-Jimenez, the first step in deciding whether an alien is ineligible for cancellation of removal is to determine whether the alien was “convicted” as defined by The INA defines “conviction” as: a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien‘s liberty to be imposed. In a series of published opinions, the BIA has set forth its interpretation of what type of proceedings amount to a “conviction” under the INA. In Eslamizar, 23 I. & N. Dec. 684, an alien who was adjudicated guilty of a Class A theft violation—which is also not a crime under Oregon law—argued that the judgment did not qualify as a conviction. See id. at 685; As discussed above, supra Part III, the BIA has authority to interpret the INA‘s codified definition of conviction. See Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001). Because the BIA has set forth an interpretation of that definition in published decisions, its permissible construction of the statute is entitled to deference under Chevron, unless we determine that the expressed intent of Congress was unambiguous. See id. at 773 (citing Chevron, 467 U.S. at 842–43). The parties dispute whether Diaz-Quirazco‘s judgment for contempt of court satisfies “a formal judgment of guilt” under We next consider whether the BIA‘s construction of The BIA‘s conclusion that the INA definition of conviction does not depend on the moniker the state affixed to the offense is reasonable. See Matter of Mohamed, 27 I. & N. Dec. 92, 96 (BIA 2017) (“[T]he question is not whether the State . . . regards [the offense] as a conviction, but rather whether the [offense] meets the Federal definition of a ‘conviction’ in section [1101](a)(48)(A).” (quoting Matter of Roldan, 22 I. & N. Dec. 512, 516 (BIA 1999))). “Because the term ‘conviction’ is defined by the [INA], the statutory definition alone” governs the BIA‘s determination. Mohamed, 27 I. & N. Dec. at 98 (finding that “[a]lthough the successful completion of a pretrial intervention agreement in Texas may not result in a conviction for purposes of State law,” it does meet the definition of the INA); see also In Re Punu, 22 I. & N. Dec. 224, 229 (BIA 1998) (“[I]n the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.” (quoting NLRB v. Nat. Gas Util. Dist., 402 U.S. 600, 603 (1971))). “When a statute includes an explicit definition, we must follow that definition, even if it varies from that term‘s ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000). Although “conviction” generally connotes a judgment in a criminal proceeding, Congress specifically chose not to use that word in defining conviction, despite using it to define other terms in that section. See, e.g., Because the BIA‘s interpretation that “conviction” requires that the proceeding contain “constitutional safeguards normally attendant upon a criminal adjudication” is a reasonable interpretation, we defer to it under Chevron. In light of our conclusion that we defer to the BIA‘s Medina-Jimenez framework for determining ineligibility for cancellation of removal based on a violation of a protection order and to the BIA‘s interpretation that a “conviction” under the INA must be “criminal in nature,” we next turn to whether the BIA erred in finding Diaz-Quirazco ineligible for cancellation of removal. Under Medina-Jimenez, Diaz-Quirazco is ineligible for cancellation of removal only if the judgment against him qualifies as a conviction under We agree with the BIA that Diaz-Quirazco‘s judgment qualifies as a “conviction” under the INA, in light of the deference owed to the BIA‘s interpretation of this definition. Diaz-Quirazco was subject to Oregon‘s contempt of court proceedings, which fall within this definition. The penalty for contempt of court was punitive in nature, as the court was statutorily authorized to impose sentences of confinement up to six months. We also agree with the BIA that Diaz-Quirazco‘s offense qualifies as removable conduct as described under We disagree with Diaz-Quirazco‘s argument that this case should be remanded to the BIA. Generally, when “reviewing the decision of the BIA, we consider only the grounds relied upon by that agency” and “[i]f we conclude that the BIA‘s decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam). We do not remand a case to the BIA “where only legal questions remain and these questions do not invoke the Board‘s expertise” and where “all relevant evidence regarding the conviction [have] been presented to the BIA in earlier proceedings.” Flores-Lopez v. Holder, 685 F.3d 857, 865 (9th Cir. 2012) (quoting Fregozo v. Holder, 576 F.3d 1030, 1039 (9th Cir. 2009)). Although the BIA had not yet decided Obshatko and Medina-Jimenez when it issued its decision in Diaz-Quirazco‘s appeal, it functionally undertook the same analysis. This is the rare case where remand is not appropriate. The BIA first determined that Diaz-Quirazco‘s judgment for contempt of court in Oregon was a “conviction” within the statutory Next, the BIA proceeded to review the record to determine whether probative and reliable evidence demonstrated that Diaz-Quirazco engaged in the removable conduct described under violated the stay away provision of the restraining order protecting Georgina Martinez-Gonzalez when he contacted Ms. Martinez-Gonzalez in person. A violation of the stay away provision of a restraining order involves “protection against credible threats of violence, repeated harassment, or bodily injury,” and is subsequently an offense under [the] INA § [1227](a)(2)(E)(ii). Szalai, 572 F.3d at 982; see also Matter of Strydom, 25 [I. & N.] Dec. 507, 510 (BIA 2011) (holding that the violation of a no contact provision in a Kansas protective order involves “protection against credible threats of violence, repeated harassment, or bodily injury“). Admittedly, this was under the IJ‘s modified categorical approach analysis. But, this does not matter because the IJ and BIA functionally undertook the same analysis as was later prescribed by Medina-Jimenez. The BIA sufficiently reviewed the evidence in the record, which reliably evinced that Diaz-Quirazco‘s offense was a direct violation of the “no contact” portion of the Restraining Order, which had been issued for the purpose of protecting Martinez-Gonzalez “against credible threats of violence, repeated harassment, or bodily injury” to her and her child. Because the BIA fully considered the necessary steps for determining whether Diaz-Quirazco was ineligible for cancellation of removal based on a violation of the Restraining Order, we conclude that remand is not appropriate in this case. Cf. INS v. Ventura, 537 U.S. 12, 14-18 (2002) (per curiam) (remanding where asylum issue was not fully considered by the BIA). Unlike in Flores-Lopez, 685 F.3d at 866, where we remanded to the BIA because “it [wa]s unclear whether DHS had the opportunity PETITION DENIED. FISHER, Circuit Judge, dissenting: I agree with much of the majority opinion but disagree with the majority that the BIA adequately reconciled its decision in this case with its precedential decisions interpreting the term “formal judgment of guilt” in the Immigration and Nationality Act‘s definition of “conviction.” These decisions require that a conviction arise from a proceeding that is “criminal in nature under the governing laws of the prosecuting jurisdiction.” Matter of Eslamizar, 23 I. & N. Dec. 684, 688 (BIA 2004) (emphasis added). Under this standard, a proceeding such as Diaz-Quirazco‘s punitive contempt proceeding – which is not criminal under Oregon law and does not conform to state requirements for criminal proceedings – seemingly should not result in a “conviction” for immigration purposes. The decision under review here, however, does not address whether Diaz-Quirazco‘s proceeding was criminal in nature under the governing laws of Oregon and instead looks to a more uniform federal understanding of what is “criminal in nature“; it considers primarily whether the proceeding provided Diaz-Quirazco with procedural safeguards that the U.S. Constitution requires. Because the BIA decision does not reconcile this approach with published precedent, I would grant the petition for review and remand to the BIA for, at minimum, a better explanation of its reasoning. See Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013) (“[A]bsent an adequate explanation as to how the Board‘s rationale can be reconciled with the Board‘s precedents and with the statutory language, we cannot say that the Board‘s decision was the result of legally adequate decisionmaking.“), abrogation on other grounds recognized by Guerrero v. Whitaker, 908 F.3d 541, 544 (9th Cir. 2018). I therefore respectfully dissent. Under In the three cases applying this standard, Eslamizar, Matter of Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), and Matter of Cuellar-Gomez, 25 I. & N. Dec. 850 (BIA 2012), the Board has strongly suggested that, where the prosecuting jurisdiction is a state, a conviction can arise only from a proceeding that is “criminal in nature” under state law. This appears to mean that a proceeding that would give rise to a conviction in one state may not give rise to a conviction in another, depending on what makes a proceeding “criminal in nature” under the laws of the respective states. The Board has suggested this in three ways. First, the Board has said so explicitly. It has repeatedly said that a “proceeding must, at a minimum, be criminal in nature under the governing laws of the prosecuting jurisdiction” if it is to give rise to a conviction. Eslamizar, 23 I. & N. Dec. at 688 (emphasis added); accord Cuellar-Gomez, 25 I. & N. Dec. at 852; Rivera-Valencia, 24 I. & N. Dec. at 486-87. It has clarified that, in the context of a state proceeding, this means the proceeding must be criminal in nature under state law. See Cuellar-Gomez, 25 I. & N. Dec. at 853 (“[I]t is evident that the respondent‘s Wichita judgment was entered in a ‘genuine criminal proceeding’ under the laws of the State of Kansas.“); cf. Rivera-Valencia, 24 I. & N. Dec. at 487 (“Because the respondent‘s crime was adjudicated in a proceeding that was ‘criminal in nature’ under the laws of the prosecuting jurisdiction – i.e., the United States Armed Forces – we are satisfied that his ‘guilt’ was determined in a ‘genuine criminal proceeding.‘“). Second, consistent with this clear language, the Board has looked to the prosecuting state‘s characterization of an offense to determine whether a proceeding was “criminal in nature.” In Eslamizar, for instance, the BIA (1) emphasized that Oregon‘s statutory structure did not define the offense as a “crime“; (2) emphasized that Oregon law did not consider the offense in calculating criminal history; (3) considered whether the proceeding was “subject to the criminal procedure laws of Oregon“; and (4) viewed as “[s]ignificant[]” that Oregon courts did not consider the offense a crime or the proceeding a criminal prosecution. 23 I. & N. Dec. at 687. Similarly, in Cuellar-Gomez, the Board considered both (1) whether state criminal procedures applied and (2) whether the state would use the judgment at issue in calculating criminal history. 25 I. & N. Dec. at 853–54. Third, both Eslamizar and Rivera-Valencia said that the procedural safeguards required for a judgment to constitute a “formal judgment of guilt” may vary by jurisdiction. In some jurisdictions, the constitutional safeguards afforded criminal defendants in U.S. civilian courts may not be required. See Rivera-Valencia, 24 I. & N. Dec. at 487 (discussing U.S. military jurisdiction); Eslamizar, 23 I. & N. Dec. at 688 (discussing foreign jurisdictions). These statements suggest that whether a “formal judgment of guilt” has been entered depends on the prosecuting jurisdiction‘s understanding of “criminal in nature.” They also suggest that, where a prosecuting jurisdiction requires additional safeguards above those required by the U.S. Constitution, these safeguards may be required for a proceeding to give rise to a “formal judgment of guilt.” On balance, the BIA‘s treatment of this issue in Eslamizar, Rivera-Valencia and Cuellar-Gomez suggests that a state proceeding may give rise to a conviction only if it is “criminal in nature” under state law. It is difficult to argue that Diaz-Quirazco‘s proceeding was “criminal in nature” under Oregon law. To be sure, in Oregon punitive contempt proceedings are similar to Oregon criminal proceedings in significant respects. See, e.g., First, Oregon does not classify punitive contempt proceedings as criminal. See Bachman v. Bachman, 16 P.3d 1185, 1189 (Or. Ct. App. 2000) (holding that state constitutional rights afforded “[i]n all criminal prosecutions,” Thus, under Oregon law, Diaz-Quirazco‘s offense was not a crime, his proceeding was not a criminal proceeding and he was not afforded the state constitutional safeguards that he would have been afforded had he been accused of committing a crime. Under these circumstances, it would be a challenge to reach the conclusion that a punitive contempt judgment in Oregon is a “judgment of guilt” under Eslamizar without ignoring – or at least marginalizing – Eslamizar‘s holding that the proceeding must be criminal in nature “under the governing laws of the prosecuting jurisdiction.” That appears to be what the BIA did here. Even though every relevant published BIA decision has asked whether the proceeding at issue was “criminal in nature under the governing laws of the prosecuting jurisdiction,” the BIA decision under review did not include the italicized portion The BIA‘s failure to apply Eslamizar in a comprehensible fashion is nothing new. In Castillo v. Attorney General, 729 F.3d 296, 298 (3d Cir. 2013), the Third Circuit considered whether a New Jersey “disorderly persons” shoplifting offense was a conviction for immigration purposes. In the unpublished decision under review, the Board had concluded that disorderly persons offenses were distinguished from crimes under New Jersey law. See id. at 299. The Board nevertheless determined that the offense gave rise to a conviction, focusing almost exclusively on whether each element of the offense needed to be proven beyond a reasonable doubt. See id. at 301. The Third Circuit remanded to the Board for clarification. In surveying the three published decisions discussed above and their application in unpublished BIA opinions, the court could not determine whether the requirement that each element be proved beyond a reasonable doubt, when paired with some criminal penalty, was a sufficient condition for a “conviction.” See id. at 305–10. It urged the BIA to “attempt to clarify Eslamizar,” which it characterized as a “problematic opinion.” Id. at 311. The problems presented here and in Castillo are evident in other unpublished BIA decisions as well. Without any persuasive attempt to reconcile its position with Eslamizar, the BIA has repeatedly said that state classifications are irrelevant to the “formal judgment of guilt” inquiry. See, e.g., Matter of Delgado, 2008 WL 762624, at *1 (BIA Mar. 11, 2008), pet. for review denied sub nom. Delgado v. Attorney General, 349 F. App‘x 809 (3d Cir. 2009); Matter of Dilone, 2007 WL 2463936, at *1 (BIA Aug. 6, 2007); cf. Matter of Rubio, 2017 WL 1951523, at *4 (BIA Apr. 11, 2017) (“The decisive issue is not how the prosecuting jurisdiction labels the judgment (or the proceedings in which it was entered) . . . .“), pet. for review denied sub nom. Rubio v. Sessions, 891 F.3d 344 (8th Cir. 2018). It has also reached inconsistent conclusions regarding the importance of procedural safeguards other than proof beyond a reasonable doubt. See Castillo, 729 F.3d at 309–10 (discussing various BIA decisions). I would grant the petition for review and remand this case to the BIA with instructions B.
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