Is the Board of Immigration Appeals Entitled to Chevron Deference When Interpreting What Constitutes Child Abuse?

BACKGROUND

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.

LOOKING FORWARD

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.

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

Do Potential Deportees Have A Constitutional Right To Be Made Aware Of Discretionary Relief From Removal?

The Issue

Section 212(h) of the Immigration and Nationality Act (INA) lists reasons and conditions under which a potential deportee can request discretionary relief from removal. However, not all persons who are subject to deportation know that the possibility of relief is available. Because granting relief from removal is a wholly discretionary decision, deportees who fail to present their eligibility during their removal proceedings might not receive such relief.

Emilio Estrada is a Mexican citizen who was charged with illegal re-entry after deportation, and subject to deportation proceedings.  Estrada’s attorneys failed to advise him about his possible eligibility for relief from deportation, and Estrada did not request discretionary relief. Estrada later collaterally attacked his deportation order, claiming that this failure constituted a violation of his due process rights. In United States v. Estrada (2017), the Sixth Circuit disagreed. Relying on precedent, the court stated that there is no constitutionally-protected right to be informed of relief from deportation because such relief is discretionary. The Sixth Circuit joins six of its sister circuits in this holding. But the Second and Ninth Circuits have held that there is a constitutionally-protected right to be informed of potential relief from deportation, and that a failure by an attorney or an immigration judge to make the potential deportee aware of such relief constitutes a due process violation.

The Split

In Estrada, the Sixth Circuit followed circuit precedent from Huicochea-Gomez v. INS (2001), stating that “an individual has no constitutionally-protected liberty interest in obtaining [or being informed of] discretionary relief from deportation.” The court further stated that the discretionary nature of the relief does not “create a protectable liberty or property interest,” and without such an interest, a due process violation cannot occur.

The Sixth Circuit joins the majority of its sister circuits in holding that an undocumented immigrant does not have a constitutional right to be informed of eligibility for discretionary relief:

  • In Smith v. Ashcroft (2002), the Fourth Circuit stated that “for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation…of a benefit. There must be entitlement to benefit as directed by statute.”
  • In United States v. Lopez-Ortiz (2002), the Fifth Circuit stated that “[discretionary relief] conveyed no rights, it conferred no status,” and its denial does not implicate the Due Process clause.”
  • In United States v Santiago-Ochoa (2006), the Seventh Circuit relied on dicta from a previous circuit decision, stating that “it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause was designed to protect.”
  • In Escudero-Corona v. INS (2001), the Eighth Circuit stated that “eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General,” and as such, did not confer a constitutionally-protected right.
  • In United States v. Aguirre-Tello (2004), the Tenth Circuit held that an undocumented immigrant’s constitutionally-protected rights only included the right to “be heard at a meaningful time and in a meaningful place, and nothing more.”
  • In Oguejiofor v. Attorney General of the United States (2002), the Eleventh Circuit held that the petitioner could not assert a due process challenge because he had “no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”

In contrast, the Second and Ninth Circuits have held that there is a constitutional right to be advised of discretionary relief:

  • In United States v. Copeland (2004), the Second Circuit stated that “[failing] to advise a potential deportee of a right to seek…discretionary relief can, if prejudicial, be fundamentally unfair.”
  • In United States v. Lopez-Velasquez (2010), the Ninth Circuit stated that “failure to advise an alien of his potential eligibility for discretionary relief violates due process.”

Looking Forward: The Current Administration and the Role of Attorneys

The United States Supreme Court denied certiorari in United States v. Lopez-Ortiz (2002). But given the current administration’s heightened enforcement of immigration laws and the constitutional question posed by this now-current issue, the circuits — and potential deportees and their families — would benefit from a clear ruling from the Supreme Court on this issue. The Sixth Circuit’s ruling brings to the forefront an issue that could have a tremendous and life-changing impact on potential deportees. Because Estrada considers a constitutional question, rather than challenging an actual exercise of discretion, this issue should not fall prey to the bar to judicial review of discretionary immigration decisions.

Estrada, and the cases cited above raise another concern — the failure by attorneys to make their clients aware of the potential for discretionary relief, which was the grounds upon which Mr. Estrada and other potential deportees claimed that their due process rights had been violated. This is not to suggest that attorneys are outright failing their clients. The INA is a complex statute and the grounds for relief are not entirely obvious or well-publicized. Section 212(h) of the INA provides an exhaustive list in of reasons upon which a potential deportee can request relief. While the measures for relief are discretionary and do not guarantee that a person’s deportation will be suspended, attorneys who are representing potential deportees should be aware that there are federal statutory provisions that could help them more thoroughly advocate for their clients. Attorneys — and even law students — who work with undocumented immigrants and others who could be subject to deportation proceedings can take steps to educate themselves and their colleagues on these measures.

Liberty, Justice, and Handguns for All (in Washington): The D.C. Circuit Weighs In On Concealed Carry

Issue

Is the right to publicly carry a concealed weapon a “core” right protected by the Second Amendment? Gun rights activists throughout the District can celebrate, because the D.C. Circuit said yes. The court struck down the section of the D.C. Code that primarily limited concealed carry licenses to “those showing a good reason to fear injury to [their] person or property.”

The Evolution of Gun Laws in the District of Columbia

Over the last 40 years, the D.C. Council has attempted to establish gun restrictions on three separate occasions.

The first attempt – a complete ban on handgun possession – was struck down by the Supreme Court in District of Columbia v. Heller. In Heller, Justice Scalia analyzed the meaning of the words “keep and bear arms,” and noted that “the inherent right of self-defense has been central to the Second Amendment right.” Justice Scalia (quoting the D.C. Circuit in Parker v. District of Columbia) noted that “banning from the home the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family would fail constitutional muster.” Following Heller, most jurisdictions adopted the holding that the core right protected by the Second Amendment was the right for persons to keep firearms at home.

The Council’s second attempt – which allowed DC residents to possess handguns in their homes, but instituted a total ban on public carrying – was struck down by the U.S. District Court for the District of Columbia in Palmer v. District of Columbia. In Palmer, the court held that a blanket ban on carrying handguns in public was unconstitutional, but some restrictions on carrying handguns in public could be permitted.

The third attempt maintained a ban on publicly carrying a handgun, except for persons who could demonstrate a “good reason” to carry. This “good reason” statute was struck down by the D.C. Circuit in Wrenn v. District of Columbia. In Wrenn, the court noted that the “good reason” statute was effectively the same as a “total ban” for most citizens.

To meet the requirements of the “good reason” statute, applicants for a concealed carry permit would need to “show a special need for self-protection distinguishable from the general community.” The court found the phrase “distinguishable from the general community” problematic. The language of the statute barred most people from obtaining a license to carry, because only a small portion of the D.C. metropolitan community could distinguish their needs “from the general community.” Before Wrenn, the Washington Metropolitan Police Department rejected 77 percent of concealed carry permit applications for failure to show a special need for self-protection.

Taking into consideration the textual and historical analysis in Heller, the court held

“…the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment protections.”

With this language, the D.C. Circuit became the latest circuit to join the split over whether carrying beyond the walls of the home is a “core” right protected by the Second Amendment. This may result in greater scrutiny of the “good reason” statutes in other circuits.

The Split

The D.C. Circuit joins the Seventh Circuit in holding that a ban on public carrying violates the Second Amendment. In Moore v. Madigan, the Seventh Circuit struck down the Illinois Unlawful Use of Weapons statute. While somewhat distinct from a “good reason statute,” the statute was effectively a total ban on public carrying, with very narrow exceptions for law enforcement officers, hunters, and members of target shooting clubs (among others). The court held that “confrontation [requiring self-defense with a gun] is not limited to the home.”

The First, Second, Fourth, and Ninth Circuits disagree (for a comprehensive overview of the decisions below, check out another one of our Sunday Splits blogs).

  • In Hightower v. City of Boston, the First Circuit held that the government “may regulate the carrying of concealed weapons outside the home” and upheld Boston’s “good reason” statute.
  • In Kachalsky v. County of Westchester, the Second Circuit declined to extend the reasoning in Heller to carrying outside the home. The court upheld New York’s “good reason” statute, which required applicants seeking to obtain a concealed handgun permit, to “demonstrate a special need for protection.”
  • In Woollard v. Gallagher, the Fourth Circuit held that a “good-and-substantial-reason” requirement could withstand constitutional muster, and upheld Maryland’s “good reason” statute.
  • In Peruta v. County of San Diego, the Ninth Circuit explicitly stated that “there is no Second Amendment right for members of the public to carry concealed firearms in public.”

The D.C Circuit’s decision casts a sharp split on the issue of whether concealed carrying in public is a core right protected by the Second Amendment. The decision struck down the very kind of statute –a “good reason” statute – that has been consistently upheld in sister circuits.

Looking Forward – The Future of Concealed Carry

The D.C. Circuit’s order went into effect on October 7, and residents of Washington, D.C. who pass a background check and a firearms safety test will be permitted to carry a concealed handgun. Some restrictions on concealed carry remain, including prohibitions on carrying firearms into federal buildings or around monuments.

Following the D.C. Circuit’s decision, “good reason” statutes could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the D.C. Circuit’s qualification that handguns can be carried “even in densely populated areas” could lead to the arguably strict “good reason” statues being challenged in major cities, such as New York and Boston.

The Supreme Court declined to review the decision in Woollard, and D.C. officials stated that they would not petition the Supreme Court to review the decision in Wrenn shortly before the D.C. Circuit’s order went into effect. But in light of current events, stark administrative changes, and the D.C. Circuit’s decision, the time may be ripe for the Supreme Court to revisit “good reason” statutes and explicitly state whether the core of the Second Amendment protects the right to publicly carry a concealed firearm.