Fernando Diaz-Quirazco v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO DIAZ-QUIRAZCO, No. 16-72387
Petitioner,
Agency No.
v. A200-877-802
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 11, 2018
Portland, Oregon
Filed July 23, 2019
Before: Raymond C. Fisher, Richard R. Clifton,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Fisher
2 DIAZ-QUIRAZCO V. BARR
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 Immigration and Nationality Act’s
definition of “conviction” does not require an underlying
offense to be a labeled a crime as long as the proceedings are
criminal in nature.
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 Oregon Revised Statutes § 33.015 for violating a
restraining order.
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 8 U.S.C. § 1229b(b)(1)(C), the
provision that renders an alien ineligible for cancellation of
removal if the alien has been “convicted of an offense under
section . . . 1227(a)(2),” does not require analysis under the
categorical approach to determine whether an alien’s
violation of a protection order renders him convicted of an
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DIAZ-QUIRAZCO V. BARR 3
offense under § 1227(a)(2)(E)(ii), the statute that provides
that an alien is removable if a court determines he “has
engaged in conduct that violates a protection order.”
Under Chevron step one, the panel concluded that the
presence of the word “convicted” in § 1229b(b)(1)(C) and
its absence from § 1227(a)(2)(E)(ii), renders the statutory
language ambiguous regarding the applicability of the
categorical approach. Under step two of Chevron, the panel
concluded the BIA’s interpretation is reasonable and
consistent with the statute, explaining that the BIA
articulated a two-step approach for analyzing this issue:
(1) whether the offense resulted in a “conviction,” as defined
by 8 U.S.C. § 1101(a)(48)(A); and (2) whether the State
court found that the alien engaged in conduct that violates
the relevant portion of a protection order, as directed by
§ 1227(a)(2)(E)(ii).
Second, the panel accorded Chevron deference to the
BIA’s interpretation that § 1101(a)(48)(A), which defines
“conviction,” does not require the underlying offense to be
labeled as a crime so long as the proceeding was “criminal
in nature.” As relevant here, the statute defines a conviction
as a “formal judgment of guilt of the alien entered by a
court.” Observing that the word “criminal” is conspicuously
absent from that definition, the panel concluded that the text
is ambiguous as to what formalities a judgment of guilt must
contain. Further, the panel concluded that the BIA’s
construction of “conviction” is reasonable because it
requires that the proceeding contain constitutional
safeguards normally attendant upon a criminal adjudication.
Next, the panel concluded that Diaz-Quirazco’s
judgment qualified as a conviction under § 1101(a)(48)(A),
explaining that the penalty for contempt was punitive in
nature and that, apart from the right to a jury trial, Diaz-
4 DIAZ-QUIRAZCO V. BARR
Quirazco was entitled to constitutional and statutory
protections that a defendant would be entitled to in a criminal
proceeding involving equivalent punitive sanctions.
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.
DIAZ-QUIRAZCO V. BARR 5
OPINION
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 8 U.S.C. §§ 1101(a)(48)(A), 1227(a)(2)(E)(ii), and
1229b(b)(1)(C). We have jurisdiction under 8 U.S.C.
§ 1252.
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 § 1227(a)(2)(E)(ii) renders him
convicted of an offense under § 1229b(b)(1)(C), is entitled
to Chevron deference. See Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984). Additionally,
we defer under Chevron to the BIA’s conclusion that
§ 1101(a)(48)(A) does not require that the underlying
offense be labeled a crime as long as the proceedings are
“criminal in nature” and contain “constitutional safeguards
normally attendant upon a criminal adjudication.” See
Matter of Eslamizar, 23 I. & N. Dec. 684, 687, 688 (BIA
2004) (en banc); Matter of Cuellar-Gomez, 25 I. & N. Dec.
850, 851–53 (BIA 2012). We also agree with the BIA’s
decision that Diaz-Quirazco is ineligible for cancellation of
removal, and we conclude that the BIA’s decision can stand
based on its reasoning and we need not remand.
6 DIAZ-QUIRAZCO V. BARR
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”),
Or. Rev. Stat. (“ORS”) §§ 107.700–107.735 (2009).
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 order to prevent abuse
under FAPA (the “Restraining Order”). The Restraining
Order included a “no contact” provision that “restrained
(prohibited) [Diaz-Quirazco] from . . . [c]ontacting, or
attempting to contact, [Martinez-Gonzalez] in person
directly or through third parties.”
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,
DIAZ-QUIRAZCO V. BARR 7
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 ORS § 33.015 and sought
punitive sanctions. On September 22, 2010, Diaz-Quirazco
pled guilty to Contempt of Court for violating the
Restraining Order, certifying the following factual basis for
his guilt: “On or about Sept. 12, 2010 in Marion County, OR,
knowing that a restraining order was in place, I did
unlawfully and willfully disobey said restraining order by
contacting [Martinez-Gonzalez] in person.” The Oregon
Court entered a judgment against Diaz-Quirazco of
Contempt of Court in violation of the Restraining Order for
“willfully engaging in . . . [d]isobedience of, resistance to, or
obstruction of the Court’s authority, process, orders, or
judgments.” The Oregon Court imposed a sentence of
imprisonment with credit for time served, payment of a fine,
and supervised probation subject to conditions.
B.
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.
8 DIAZ-QUIRAZCO V. BARR
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 § 1227(a)(2)(E)(ii). The IJ reasoned
that even though the violation of a FAPA Restraining Order
is not a categorical match to the generic federal definition of
a crime under the framework set forth in Taylor/Descamps, 2
Diaz-Quirazco’s offense was a match under the modified
categorical approach because Diaz-Quirazco contacted
Martinez-Gonzalez in person, which violated the stay-away
provision of the Restraining Order that protected Martinez-
Gonzalez against credible threats of violence, repeated
harassment, or bodily injury.
Furthermore, the IJ found that “although a violation of a
FAPA order is not considered a crime under Oregon law, it
1
The IJ also denied Diaz-Quirazco’s applications for asylum,
withholding of removal, and relief under the Convention Against
Torture, which Diaz-Quirazco did not challenge on appeal before the
BIA and does not challenge here.
2
Under the framework prescribed in Taylor v. United States,
495 U.S. 575 (1990), and Descamps v. United States, 570 U.S. 254
(2013), the court compares the state statute of conviction with the generic
federal definition of the crime to determine whether the respondent has
been convicted of all the necessary elements. If the state statute is not a
“categorical” match to the federal definition, then the court determines
whether the state statute is divisible and, if so, looks to “a limited class
of documents, such as indictments and jury instructions,” to determine
whether the conviction qualifies as a removable offense for immigration
purposes. Descamps, 570 U.S. at 257.
DIAZ-QUIRAZCO V. BARR 9
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.
C.
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 § 1227(a)(2)(E)(ii). The
BIA’s decision addressed whether Diaz-Quirazco’s offense
was a “conviction” under the INA’s definition, 8 U.S.C.
§ 1101(a)(48)(A), and whether a court determined that Diaz-
Quirazco’s “offense” involved engaging in the conduct
described under § 1227(a)(2)(E)(ii).
First, the BIA determined that Diaz-Quirazco’s
“offense” resulted in a “conviction” under
§ 1101(a)(48)(A)’s definition. The BIA noted that whether
Oregon labels Diaz-Quirazco’s offense as a crime is not
dispositive. The BIA explained that for a judgment to
constitute a “conviction” under the INA’s definition, certain
factors are considered, including but not limited to: whether
each element of every offense was proved beyond a
reasonable doubt; whether the sanctions resulting from such
conviction are punitive; whether there are constitutional
safeguards normally attendant upon a criminal adjudication;
and whether a conviction for a municipal violation gives rise
to any disability or legal disadvantage. The BIA concluded
that these factors favored meeting the definition for
“conviction.” The Oregon Court had the authority to
10 DIAZ-QUIRAZCO V. BARR
adjudicate guilt and to impose penalties under
ORS § 33.015–155, and the Oregon Court imposed against
Diaz-Quirazco the penalties of imprisonment, probation, and
fees. The BIA further explained that Oregon’s statute under
which Diaz-Quirazco was charged provides that when a
punitive sanction is sought, such as here, the following
safeguards are required: every element of the offense must
be proven beyond a reasonable doubt under
ORS § 33.065(9); the charging document is subject to the
same requirements and laws as those in criminal proceedings
under ORS § 33.065(5); and the defendant has a right to
appointed counsel under ORS § 33.065(6). The BIA
reasoned that these relevant factors support the conclusion
that the proceeding to determine whether Diaz-Quirazco
violated the Restraining Order was “criminal in nature” and
thus the judgment was a “conviction” within the definition
of § 1101(a)(48)(A).
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
3
On August 15, 2018, the Government submitted a letter pursuant
to Rule 28(j) of the Federal Rules of Appellate Procedure and Ninth
Circuit Rule 28-6, citing two BIA opinions published after the parties’
briefings: Obshatko, 27 I. & N. Dec. 173, and Medina-Jimenez, 27 I. &
N. Dec. 399. A court order directed the parties to be prepared to discuss
these cases at oral argument.
DIAZ-QUIRAZCO V. BARR 11
II.
This case presents two issues. First, whether we should
accord deference to the BIA’s interpretation that
§ 1229b(b)(1)(C) does not require analysis under the
categorical approach for determining whether an alien’s
violation of a protection order renders him convicted of an
offense under § 1227(a)(2)(E)(ii), as articulated in the BIA’s
published opinion of Medina-Jimenez. Second, whether to
defer to the BIA’s interpretation that § 1101(a)(48)(A) does
not require that the underlying offense be labeled a crime as
long as the proceeding was “criminal in nature.”
“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.”).
III.
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
§ 1229b(b)(1)(C) based on an offense of violating a
protection order under § 1227(a)(2)(E)(ii). We owe
deference to the BIA’s interpretation of the INA in certain
12 DIAZ-QUIRAZCO V. BARR
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 § 1227(a)(2)(E)(ii) in
determining whether an alien’s violation of a protection
order renders him ineligible for cancellation of removal
under § 1229b(b)(1)(C). This triggers the application of the
two-step Chevron framework.
First, “we determine ‘whether Congress has directly
spoken to the precise question at issue.’” Perez-Guzman v.
Lynch, 835 F.3d 1066, 1073 (9th Cir. 2016) (quoting
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1054 (9th
Cir. 2010)). “If the intent of Congress is clear, that is the end
of the matter” because “the court, as well as the agency, must
give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43. If, however,
“Congress has not spoken to a particular issue or the statute
is ambiguous,” we proceed to the second step. Perez-
Guzman, 835 F.3d at 1073. We must then determine
whether the agency’s interpretation is “based on a
permissible construction of the statute.” Chevron, 467 U.S.
at 843. If the “agency’s construction is reasonable, Chevron
requires a federal court to accept the agency’s construction
of the statute, even if the agency’s reading differs from what
DIAZ-QUIRAZCO V. BARR 13
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”)).
A.
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. 8 U.S.C. § 1227(a). An alien,
even if legally present in the United States, may be deported
if he commits “[c]rimes of domestic violence, stalking, or
violation of protection order.” Id. § 1227(a)(2)(E). A
“violator[] of protection orders” is removable under the
following provision:
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.
14 DIAZ-QUIRAZCO V. BARR
Id. § 1227(a)(2)(E)(ii) (emphasis added).
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)[.]
Id. § 1229b(b)(1)(C).
B.
Under Chevron’s step one, we conclude that Congress
has not directly spoken to the interplay of
§§ 1227(a)(2)(E)(ii) and 1229b(b)(1)(C). In the first
instance, § 1229b(b)(1)(C) prescribes: An alien who is
deportable from the United States must prove several
elements to be eligible for cancellation of removal, including
“not [having] been convicted of an offense under section . . .
1227(a)(2).” Generally, the word “conviction” triggers the
categorical approach of Taylor/Descamps. See Moncrieffe
v. Holder, 569 U.S. 184, 191 (2013) (“‘[C]onviction’ is the
DIAZ-QUIRAZCO V. BARR 15
‘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 § 1229b(b) includes a violation of protection
orders. Section 1227(a)(2)(E)(ii) proffers removability for
an alien who 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.” (emphasis added).
The presence of the word “convicted” in
§ 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii),
renders the statutory language ambiguous regarding whether
the categorical approach applies to determining whether an
alien is removable under § 1229b(b)(1)(C) for violating a
protection order under § 1227(a)(2)(E)(ii). Congress
intentionally used “convicted” in the relief provision. See
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“In
construing a statute we are obliged to give effect, if possible,
to every word Congress used.”). Congress intentionally
excluded it in the removability provision and instead
provided a detailed explanation of the type of “conduct” that
an alien must engage in, to be removable. Accordingly, we
proceed to the second step of Chevron.
C.
Under step two of Chevron, we must determine whether
the BIA’s interpretation of the statute is based on a
16 DIAZ-QUIRAZCO V. BARR
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:
[W]hether a violation of a protection order
renders an alien removable under section
[1227](a)(2)(E)(ii) of the [INA] is not
governed by the categorical approach, even if
a conviction underlies the charge. Instead, an
Immigration Judge should consider the
probative and reliable evidence regarding
what a State court has determined about the
alien’s violation. In so doing, an Immigration
DIAZ-QUIRAZCO V. BARR 17
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].
Id. at 176–77.
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
18 DIAZ-QUIRAZCO V. BARR
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 § 1229b(b) for an offense of violating a protection
order under § 1227(a)(2)(E)(ii): (1) “whether the offense at
issue resulted in a ‘conviction’ within the statutory definition
set forth at section [1101](a)(48)(A) of the [INA]”; and
(2) “whether the State court has found that the alien
‘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 ordered was issued,’ as
directed by section [1227](a)(2)(E)(ii).” Id. at 401–02
(footnote omitted). In analyzing the second step, IJs must
“follow the analysis provided in Matter of Obshatko—that
is, they should review the probative and reliable evidence
regarding whether the State court’s findings that a protection
order has been violated meet the requirements of section
[1227](a)(2)(E)(ii).” Id. at 402.
The BIA’s interpretation in Obshatko and Medina-
Jimenez is reasonable and consistent with the statute. The
BIA reasonably read § 1227(a)(2)(E)(ii) as focusing on the
alien’s “conduct” and the “portion” of the protection order
that was violated. While a conviction may underlie the
charge, whether the alien has been “convicted” is not the
critical question of § 1227(a)(2)(E)(ii). Instead, the statutory
provision focuses on what the state court found about the
alien’s conduct. The BIA’s two-step inquiry for determining
whether an alien is ineligible for cancellation of removal
based on a violation of a protection order is consistent with
the statutory language and is a reasonable interpretation:
DIAZ-QUIRAZCO V. BARR 19
whether the alien has been “convicted” as defined by
§ 1101(a)(48)(A); and whether a state court found that the
alien’s “offense” involves conduct described under
§ 1227(a)(2)(E)(ii). Accordingly, the BIA’s interpretation is
a rational, permissible construction of the statute.
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
20 DIAZ-QUIRAZCO V. BARR
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 § 1227(a)(2)(E)(ii) requires the determination of
“what portion of the protection order was violated”). We
reasoned that the inherent nature of an Oregon FAPA
restraining order and, even more specifically, the “stay-
away” provision is to prevent abuse and physical harm to the
person for whom the restraining order was issued. Id. at
981–82. Our finding and reasoning is consistent with the
BIA’s construction in Medina-Jimenez.
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
§ 1229b(b)(1)(C), the alien has been “convicted,” as defined
by § 1101(a)(48)(A); and (2) whether, for the removable
“offense” under § 1227(a)(2)(E)(ii) for violating a protection
order, (a) the state court determined that the defendant’s
conduct violated the portion of the restraining order
“involv[ing] protection against credible threats of violence,
repeated harassment, or bodily injury” and (b) the restraining
order was issued for the purpose of protecting a person
against such violence. Moreover, we did not explicitly reject
a conduct-based approach in Szalai. See id. at 982 n.11 (“We
note that, in Alanis-Alvarado, we followed the modified
categorical approach, albeit without obviously rejecting an
argument that we should not do so.”). Nevertheless, to the
extent the BIA’s approach differs from Szalai’s use of the
categorical/modified approach, it is entitled to deference.
DIAZ-QUIRAZCO V. BARR 21
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 §§ 1227(a)(2)(E)(ii) and 1229b(b)(1)(C), we
defer to the BIA’s prescribed framework in Medina-Jimenez
for assessing whether an alien is ineligible for cancellation
of removal for being “convicted of an offense” under
§ 1227(a)(2)(E)(ii).
IV.
We next address whether we accord deference to the
BIA’s interpretation that § 1101(a)(48)(A) does not require
the underlying offense to be labeled as a crime as long as the
proceeding was “criminal in nature.”
A.
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 § 1101(a)(48)(A). Diaz-Quirazco argues that because his
contempt of court judgment is not a crime under Oregon law,
the BIA erred in concluding that he was convicted as that
term is used in § 1229b(b)(1)(C). See Bachman v. Bachman,
16 P.3d 1185, 1188 (Or. 2000) (“[A] contempt proceeding is
neither civil nor criminal . . . [but] a unique and inherent
power of a court to ensure compliance with its orders.”). We
reject this argument. While the state’s moniker of an offense
is relevant to whether the defendant’s offense qualifies as a
“conviction” under the INA for the purpose of cancellation
of removal, the state’s labeling of the offense is not
dispositive in our review of whether the BIA reasonably
interpreted § 1101(a)(48)(A). Before we can determine
whether Diaz-Quirazco’s contempt of court judgment
22 DIAZ-QUIRAZCO V. BARR
satisfies the first step of Medina-Jimenez, we must first
assess whether the BIA’s interpretation of § 1101(a)(48)(A)
is entitled to Chevron deference.
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.
8 U.S.C. § 1101(a)(48)(A).
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; ORS §§ 161.505, 161.515. The BIA found the
INA’s definition of conviction unclear but held that “by
‘judgment of guilt’ Congress most likely intended to refer to
a judgment in a criminal proceeding, that is, a trial or other
proceeding whose purpose is to determine whether the
accused committed a crime and which provides the
constitutional safeguards normally attendant upon a criminal
adjudication.” Eslamizar, 23 I. & N. Dec. at 687 (emphasis
DIAZ-QUIRAZCO V. BARR 23
omitted). The BIA has subsequently clarified Eslamizar and
reaffirmed that an alien is “convicted” only when the
underlying proceeding was “criminal in nature under the
governing laws of the prosecuting jurisdiction.” Matter of
Cuellar-Gomez, 25 I. & N. Dec. 850, 851–53 (BIA 2012)
(holding that a municipal court’s proceedings in which a
judgment of guilt was entered against an alien for a
misdemeanor offense was “criminal in nature” despite the
fact that the alien was not afforded an absolute right to be
represented by counsel or the right to a jury trial); Matter of
Rivera-Valencia, 24 I. & N. Dec. 484, 486–87 (BIA 2008)
(holding an alien’s judgment of guilt entered by a general
court-martial constituted a “conviction” under the INA
because the judgment was entered in a proceeding that was
“criminal in nature” despite the absence of a right to a jury
trial).
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 § 1101(a)(48)(A). 4 We must decide whether
4
Neither party contends that Diaz-Quirazco’s contempt of court
judgment qualifies as an “adjudication of guilt that has been withheld.”
8 U.S.C. § 1101(a)(48)(A). To the extent that the judgment could be so
construed, there is no dispute that Diaz-Quirazco “entered a plea of
24 DIAZ-QUIRAZCO V. BARR
Congress has unambiguously foreclosed the BIA’s
interpretation of “formal judgment of guilt.” We begin by
noting the word “criminal” is conspicuously absent from the
text of § 1101(a)(48)(A). Rather, “formal” is the word
Congress employed to describe the proceedings that may
result in a conviction. Black’s Law Dictionary defines
“formal” as “pertaining to or following established
procedural rules, customs, and practices.” Formal, Black’s
Law Dictionary (9th ed. 2009). It thus appears that Congress
intended for only those adjudications carried out according
to certain rules and procedures to carry immigration
consequences. “Formal” suggests that the proceeding
should at the very least comply with basic notions of
procedural due process—e.g., notice and opportunity to be
heard in front of an impartial tribunal. 5 Therefore, we
conclude that the text of § 1101(a)(48)(A) is unspecific and
guilty . . . and . . . the judge entered some form of punishment, penalty,
or restrain on [Diaz-Quirazco]’s liberty.” Id. § 1101(a)(48)(A)(i)–(ii).
In addition to being fined $532, Diaz-Quirazco was confined in jail for
nine days with credit for time served and placed under the Marion
County Correction’s supervision for 24 months.
5
The legislative history likewise does not suggest that Congress had
a specific idea of what procedures a “formal judgment” would entail. If
anything, it suggests Congress intended to expand the meaning of
conviction. When Congress amended 8 U.S.C. § 1101(a)(48)(A), it
noted in the House Report that its intent was to statutorily overrule the
BIA’s former interpretation of “conviction” in Matter of Ozkok, 19 I. &
N. Dec. 546 (BIA 1988). The basic concern, it seems, was that there was
“a myriad of [state] provisions for ameliorating the effects of a
conviction” and consequently, “aliens who have clearly been guilty of
criminal behavior and whom Congress intended to be considered
‘convicted’ have escaped the immigration consequences normally
attendant upon a conviction.” H.R. REP. NO. 104-828, at 224 (1996).
Accordingly, the House Report notes that the amended definition
“deliberately broaden[ed] the scope of the definition of ‘conviction.’”
Id.
DIAZ-QUIRAZCO V. BARR 25
ambiguous as to what formalities a judgment of guilt must
contain.
B.
We next consider whether the BIA’s construction of
§ 1101(a)(48)(A) is permissible, even if that construction is
not necessarily the best interpretation or the interpretation
we would adopt in the absence of an agency interpretation.
See Chevron, 467 U.S. at 843 & n.11.
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).
26 DIAZ-QUIRAZCO V. BARR
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., 8 U.S.C.
§ 1101(a)(15)(U)(i)(II) (“The term ‘immigrant’ means every
alien except . . . an alien who files a petition for status . . . if
the Secretary of Homeland Security determines that . . . the
alien . . . possesses information concerning criminal activity
. . . .” (emphasis added)); id. § 1101(a)(43)(F) (“The term
‘aggravated felony’ means . . . a crime of violence . . . .”
(emphasis added)). The BIA’s conclusion that “formal
judgment” requires the proceeding to be “criminal in nature”
is a permissible construction. Looking to whether the
adjudication was “criminal in nature” and proceeded with
certain constitutional safeguards is reasonable in light of
varying state classifications and procedures. See Lopez v.
Gonzales, 549 U.S. 47, 58 (2006); Kahn v. INS, 36 F.3d
1412, 1414 (9th Cir. 1994) (“The INA ‘was designed to
implement a uniform federal policy,’ and the meaning of
concepts important to its application are ‘not to be
determined according to the law of the forum, but rather
require[ ] a uniform federal definition.’” (alteration in
original) (quoting Rosario v. INS, 962 F.2d 220, 223 (2d Cir.
1992))).
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.
V.
A.
In light of our conclusion that we defer to the BIA’s
Medina-Jimenez framework for determining ineligibility for
DIAZ-QUIRAZCO V. BARR 27
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
§ 1101(a)(48)(A) and was for a removable offense under
§ 1227(a)(2)(E)(ii).
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. ORS § 33.105(2). Apart from the right to a
jury trial, Diaz-Quirazco, subject to punitive sanctions for
contempt in Oregon, was “entitled to the constitutional and
statutory protections, including the right to appointed
counsel, that a defendant would be entitled to in a criminal
proceeding in which the fine or term of imprisonment that
could be imposed is equivalent to the punitive sanctions
sought in the contempt proceeding.” ORS § 33.065(6); see
also State v. Hauskins, 281 P.3d 669, 673 (Or. Ct. App.
2012) (“[A]though punitive contempt is not a ‘crime’ . . . all
the procedures applicable to a criminal proceeding (except
the right to a jury trial) apply, ORS [§] 33.065(5), (6),
including the standard of proof beyond a reasonable doubt,
ORS [§] 33.065(9).”). We therefore conclude Diaz-
Quirazco was “convicted” as that term has been defined by
the BIA pursuant to its interpretive authority over
§ 1229b(b)(1)(C).
28 DIAZ-QUIRAZCO V. BARR
We also agree with the BIA that Diaz-Quirazco’s offense
qualifies as removable conduct as described under
§ 1227(a)(2)(E)(ii). The Restraining Order prohibited Diaz-
Quirazco from having any contact with Martinez-Gonzalez
and was issued for the purpose of protecting her against
physical, verbal, and sexual abuse of Diaz-Quirazco. He
violated the Restraining Order by contacting Martinez-
Gonzalez and appearing at her residence. Diaz-Quirazco
does not challenge that he pled guilty to violating the
provision of the Restraining Order that prohibited his contact
with Martinez-Gonzalez. Diaz-Quirazco’s offense was a
direct violation of the “stay-away” portion of the Restraining
Order that aimed to protect Martinez-Gonzalez “against
credible threats of violence, repeated harassment, or bodily
injury” to her and her child. We therefore agree with the
BIA that Diaz-Quirazco’s conduct qualifies as a removable
“offense” under § 1227(a)(2)(E)(ii) for violating a protection
order.
B.
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,
DIAZ-QUIRAZCO V. BARR 29
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 definition set forth at § 1101(a)(48)(A). The
BIA reviewed the charging documents and relevant record
to assess whether the Oregon proceeding was “criminal in
nature,” including the type of sanctions imposed and
whether the proceeding consisted of the “constitutional
safeguards normally attendant to a criminal adjudication.”
Eslamizar, 23 I. & N. Dec. at 687; see also Rivera-Valencia,
24 I. & N. Dec. at 487. The BIA found that the Oregon Court
had the authority to adjudge guilt and to impose penalties,
and the contempt judgment included a sentence of
imprisonment, probation, and fees. Citing ORS § 33.065(5),
(6), (9), the BIA reasoned that the charging documents
sought “a punitive sanction,” that the proceeding statutorily
required every element of the offense be proven by the
criminal standard of proof beyond a reasonable doubt, and
that Diaz-Quirazco had the right to appointed counsel. The
BIA further explained that “since there is no other criminal
provision to address this offense, the defendant [wa]s not at
risk of double jeopardy as a result of violating a restraining
order.” The BIA, thus, concluded that Diaz-Quirazco was
“convicted” under the INA.
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 § 1227(a)(2)(E)(ii). The BIA
concluded that Diaz-Quirazco “violated the stay-away
30 DIAZ-QUIRAZCO V. BARR
portion of the restraining order.” In doing so, the BIA
affirmed the IJ’s determination, and cited to Szalai, 572 F.3d
at 982, for its holding that “the Board’s determination that
petitioner was ineligible for cancellation of removal because
his contempt charge for disobeying the ‘stay away’ portion
of a restraining order issued pursuant to Oregon’s FAPA
constitutes an offense under section [1227](a)(2)(E)(ii) of
the [INA].” The IJ’s decision, affirmed by the BIA, found
that Diaz-Quirazco
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
DIAZ-QUIRAZCO V. BARR 31
“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
to introduce all of the relevant evidence regarding
petitioner’s conviction in the proceedings below,” here all
evidence relevant to the analysis subsequently required
under Medina-Jimenez was before the IJ and BIA. See
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1135 (9th Cir.
2006) (en banc) (“Beyond the bare-bones documents needed
to show [the alien] had a prior conviction—the complaint
and the judgment—the government presented the agency
with [the alien’s] plea agreement. On these facts, new
developments in the law do not warrant a remand.”).
Therefore, the BIA’s decision can be sustained upon its
reasoning.
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
32 DIAZ-QUIRAZCO V. BARR
Immigration and Nationality Act’s definition of
“conviction.” 8 U.S.C. § 1101(a)(48)(A).
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.
I
Under § 1101(a)(48)(A), “[t]he term ‘conviction’ means,
with respect to an alien, a formal judgment of guilt of the
alien entered by a court.” In Matter of Eslamizar, the
DIAZ-QUIRAZCO V. BARR 33
Board’s major decision interpreting “formal judgment of
guilt,” the Board considered whether a third-degree theft
judgment in Oregon – classified as a “violation” by the state
– was a “formal judgment of guilt,” and hence a
“conviction.” See 23 I. & N. Dec. at 685–86. The Board
reasoned that “by ‘judgment of guilt’ Congress most likely
intended to refer to a judgment in a criminal proceeding, that
is, a trial or other proceeding whose purpose is to determine
whether the accused committed a crime and which provides
the constitutional safeguards normally attendant upon a
criminal adjudication.” Id. at 687. In discussing
prosecutions brought by foreign jurisdictions, the Board
further determined “that Congress intended that the
proceeding must, at a minimum, be criminal in nature under
the governing laws of the prosecuting jurisdiction, whether
that may be in this country or in a foreign one.” Id. at 688.
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-
34 DIAZ-QUIRAZCO V. BARR
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
DIAZ-QUIRAZCO V. BARR 35
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.
II
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., Or.
Rev. Stat. § 33.065(5)–(6). On balance, however, it seems
highly doubtful that punitive contempt proceedings could be
characterized as “criminal in nature” under the governing
laws of Oregon.
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,” Or. Const. art. I, § 11, do not apply to a
punitive contempt proceeding in Oregon “because contempt
is not a criminal prosecution”). Second, because Oregon
does not classify punitive contempt as a crime, the “purpose
[of punitive contempt proceedings in Oregon] is [not] to
36 DIAZ-QUIRAZCO V. BARR
determine whether the accused committed a crime.”
Eslamizar, 23 I. & N. Dec. at 687; see State v. Campbell,
267 P.3d 205, 205 (Or. Ct. App. 2011) (explaining that,
under Oregon law, “contempt is not a crime” and a judgment
should not “characterize contempt of court as a criminal
conviction”). Third, although the Oregon Supreme Court
has said that the state constitutional right to trial by jury
extends to all offenses having “the character of criminal
prosecutions,” Brown v. Multnomah Cty. Dist. Court,
570 P.2d 52, 55, 57 (Or. 1977) (emphasis added), this right
does not extend to punitive contempt proceedings, see Or.
Rev. Stat. § 33-065(6); State ex rel. Dwyer v. Dwyer,
698 P.2d 957, 958–61, 962 (Or. 1985); see also State ex rel.
Hathaway v. Hart, 708 P.2d 1137, 1142 (Or. 1985). Indeed,
the Oregon courts have held on several occasions that
punitive contempt is not a “criminal prosecution” for
purposes of Article I, section 11 of the Oregon Constitution
generally. See, e.g., Dwyer, 698 P.2d at 962 (holding that “a
criminal contempt proceeding . . . is not a ‘criminal
prosecution’ within the meaning of Article I, section 11”);
State ex rel. Or. State Bar v. Lenske, 407 P.2d 250, 253 (Or.
1965) (“Though this is a criminal contempt, it is not a
criminal prosecution within the meaning of the
constitution.” (citation omitted)), disapproved of on other
grounds by Or. State Bar v. Wright, 785 P.2d 340 (Or. 1990);
Bachman, 16 P.3d at 1189. 1
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
1
Oregon referred to punitive contempt as “criminal contempt” until
a statutory revision in 1991. See Matter of Marriage of Dahlem,
844 P.2d 208, 208 (Or. Ct. App. 1992) (citing 1991 Or. Laws 1404-18).
DIAZ-QUIRAZCO V. BARR 37
that he would have been afforded had he been accused of
committing a crime.
III
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
of that phrase or explain how it can be applied to the
circumstances of this case. Although it is within the BIA’s
power to reframe its test in this way, it may not do so without
explanation. See Israel v. INS, 785 F.2d 738, 740 (9th Cir.
1986) (“The BIA acts arbitrarily when it disregards its own
precedents and policies without giving a reasonable
explanation for doing so.”). 2
2
The majority opinion relies on Matter of Mohamed, 27 I. & N. Dec.
92 (BIA 2017), but that decision does not alter Eslamizar’s holding that,
to give rise to a “formal judgment of guilt,” a proceeding must be
criminal in nature under the governing laws of the prosecuting
jurisdiction. To be sure, Mohamed held that “whether or not a conviction
exists for immigration purposes is a question of federal law and is not
dependent on the vagaries of state law,” Mohamed, 27 I. & N. Dec. at 96
(quoting Matter of Roldan, 22 I. & N. Dec. 512, 516 (BIA 1999)), and
that a conviction does not “depend upon the operation of State law,” id.
As the majority opinion recognizes, however, the issue in Mohamed was
whether the federal or state definition of “conviction” applied. See id.
Mohamed did not consider how to interpret “formal judgment of guilt”
38 DIAZ-QUIRAZCO V. BARR
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
under the federal definition. Mohamed, therefore, did not overrule
Eslamizar, Rivera-Valencia and Cuellar-Gomez. Regardless, to the
extent Mohamed may have affected a change in the law, it is for the BIA,
not this court, to consider the nature of that change and explain its basis
in the first instance. See Pannu v. Holder, 639 F.3d 1225, 1226 (9th Cir.
2011) (remanding to the BIA where the law impacting a case had
changed since the BIA’s decision); Israel, 785 F.2d at 740; see also INS
v. Ventura, 537 U.S. 12, 16 (2002).
DIAZ-QUIRAZCO V. BARR 39
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 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.
Accordingly, I respectfully dissent.