Chevron U.S.A., Inc. v. Natural Resources Defense Council established a framework for determining whether the decisions of administrative bodies are entitled to judicial deference. In very simplified terms, Chevron states that, when a statute is ambiguous, the decisions of administrative agencies should be granted judicial deference unless they are arbitrary or capricious. This determination is made in two steps. First, the court must determine whether the plain language of the statute in question is ambiguous. Second, if the language is determined to be ambiguous, the court must determine whether the administrative agency’s decision was arbitrary or capricious.
The Board of Immigration Appeals (BIA) is the “highest administrative body for interpreting and applying immigration laws,” and has nationwide jurisdiction to hear appeals of decisions rendered by immigration judges. In this capacity, the BIA often finds itself interpreting the Immigration and Naturalization Act (INA) during immigration proceedings.
In the Ninth Circuit case Martinez-Cedillo v. Sessions (2018), Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code §273a(a). Mr. Martinez-Cedillo was ordered removed from the United States on the grounds that his conviction constituted “a crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). On appeal, the primary issue—and the source of the circuit split—was whether BIA’s interpretation of “child abuse, child neglect, or child abandonment,” as written in the INA, was entitled to Chevron deference.
THE NINTH CIRCUIT’S CHEVRON ANALYSIS
The Ninth Circuit held, in a 2-1 decision, that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” was entitled to Chevron deference. Writing for the majority, Judge Bybee acknowledged that, regarding Chevron Step One, “every circuit court to have considered [the definition of “a crime of child abuse, child neglect, or child abandonment] noted its ambiguity,” and proceeded to Chevron Step Two without much discussion. Under Chevron Step Two, Judge Bybee determined that the BIA’s interpretation was “reasonable and entitled to deference.”
In dissent, Judge Wardlaw characterized the BIA’s interpretation as “unreasonable,” noting that the BIA’s definition had “inexplicably changed its generic definition three times in the past two decades.” Judge Wardlaw, quoting the Supreme Court in Sessions v. Dimaya (2018), further stated that the BIA’s “generic definition of the ‘crime of child abuse’ is so imprecise, it violates ‘essential’ tenets of due process, most specifically ‘the prohibition of vagueness in criminal statutes.’”
THE CIRCUIT SPLIT
Here, the Ninth Circuit joins the Second, Third, and Eleventh Circuits in holding that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” should be granted judicial deference under Chevron. On the other hand, the Tenth Circuit held that the BIA’s interpretation should not be granted judicial deference.
In the Second Circuit case Florez v. Holder (2015), the BIA determined that Nilfor Yosel Florez’s action of driving while intoxicated with children in the back seat of his vehicle constituted “a crime of child abuse,” noting that the BIA’s interpretation of what constituted “a crime of child abuse” was “intentionally broad.” Of note in this case, Florez’s children were not harmed during the incident that led to his arrest and order of removal. The court determined that the BIA’s determination that actual injury to a child was not a required element of this definition was a reasonable one.
In the Third Circuit case Mondragon-Gonzales v. Attorney General of the United States (2018), Judge Vanaskie noted that the portion of the INA that listed general categories of crimes “was enacted…as part of an aggressive legislative movement to expand the criminal grounds of deportability … and to create a comprehensive statutory scheme to cover crimes against children in particular.” Similarly, in the Eleventh Circuit case Martinez v. United States Attorney General (2011), the court granted deference to the BIA’s determination that proof of actual harm or injury to the child by the petitioner was not required.
But the Tenth Circuit disagreed—in Ibarra v. Holder (2013), the court refused to grant deference to the BIA’s determination that a Colorado conviction for “child abuse—negligence—no injury” constituted a “crime of child abuse, child neglect, or child abandonment” under the INA. The court noted that the plain language of the statute applied only to crimes, but that not all states criminalize certain acts of child neglect, particularly in the absence of mens rea beyond criminal neglect or in the absence of proof of actual injury to the child. The court reasoned that in effect, the BIA’s interpretation of “a crime of child abuse” and its subsequent application would vary from one jurisdiction to another, depending on whether certain acts of child neglect were criminalized.
With at least five circuits speaking to whether the BIA’s interpretation of “a crime of child abuse” should be granted judicial deference, the issue is ripe for review by the Supreme Court. However, these decisions point to a larger problem—the vagueness of some of the language in the INA combined with the latitude granted to the BIA, which often acts as the final voice on deportation decisions, to make broad interpretations of certain portions of the statute. It is especially important to note that these immigration decisions are not limited to undocumented immigrants—for example, Mr. Florez, the defendant in Florez, was a legal permanent resident at the time that his removal was ordered. In today’s climate, where deportation is all but actively encouraged, two additional steps besides eventual Supreme Court review would be particularly helpful: (1) clarification of the language of the statute by Congress, and (2) closer scrutiny by courts as to whether the BIA’s interpretations—not just limited to the BIA’s interpretation of child abuse—have become overly broad, especially in light of the administration’s anti-immigrant stance.