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.

Splitting the Baby: Does the Child Have a Say?

Divorces can be hard enough on children without being abducted by one of their parents. Unfortunately, this problem occurred frequently enough for 98 countries to adopt an international law addressing this problem. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for a prompt return of children to their “habitual residence” in the event of being wrongly removed or retained in a foreign country by one of their parents. 22 U.S.C. § 9003(e). The Convention sets out to protect children in the context of custody battles by deterring parents from crossing international borders in an attempt to gain advantage in a more favorable jurisdiction.

The sole purpose of the Convention is to protect children who are uprooted from their homes in the wake of their parents’ split by returning them to their “habitual residence.”  Unfortunately, the Convention failed to define what constitutes a child’s “habitual residence,” which gave rise to competing interpretations of the term. The point of contention is whether the child’s perspective rules in determining where they must be returned or if greater weight should be given to the parents’ last shared intent regarding the child’s residence.

The Split

Courts of most contracting nations evaluate both of these factors – the child’s perspective as well as the parents’ shared decision prior to the break-up. However, courts in the U.S. disagree regarding which one of them is dispositive. In Cohen v. Cohen (8th Cir. 2017), after a mother and child moved to St. Louis from Israel, the relationship between the parents deteriorated. The father filed a request to have the child returned to Israel under the Convention. He asserted that the parents agreed that if the father will be unable to join his family in the United States, they will return to Israel. He “urge[d] the court to adopt the standard applied in the Second Circuit, among others, which gives dispositive weight to parental intent,” in reference to Gitter v. Gitter (2nd Cir. 2005).  In Gitter, the Second Circuit concluded that:

“…the first step in determining a child’s habitual residence is to inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared.”

The Cohen court refused to adopt this standard, giving greater weight to the fact that the child has spent a significant portion of his life in the United States, where he has been going to school, socializing, and making other significant connections in the community.  The Eighth Circuit “declined to adopt this standard and decided that [they] determine habitual residence from the child’s perspective.” Although the court admits that the parents may have a more mature perspective on the situation, their primary goal is to ensure the child remains in their habitual environment.

The child-focused approach is in the minority, distinct from the “Mozes framework” proclaimed in the Ninth Circuit’s Mozes v. Mozes (2001). Here, the Ninth Circuit held that children “normally lack the material and psychological wherewithal to decide where they will reside,” so the dispositive weight is given to the last shared intent of “persons entitled to fix the place of child’s residence.” The Fourth, Seventh, and Eleventh Circuits, among others, adopted this perspective. However, the court in Redmond v. Redmond (7th Cir. 2013) attempted to reconcile the two approaches, emphasizing that “habitual residence” should be a “practical, flexible, factual inquiry, not a “fixed doctrinal test.” While it declared that it also subscribes to the Mozes framework, the Seventh Circuit Court declared that courts should consider both elements and determine which one deserves greater weight on a case-by-case basis.

Looking Forward

Since the Convention focuses on preventing children from needlessly suffering as a result of their parents’ actions, the Second Circuit’s decision to prioritize the child’s perspective seems like the just approach. However, the majority view, articulated by the Ninth Circuit, also have some traction, particularly in situations involving younger children. Although the courts have an interest in establishing a consistent interpretation, many commentators emphasize the importance of flexibility in determining the meaning of “habitual residence.” Depending on the child’s age and circumstances, a case-by-case approach will likely result in more equitable decisions than when applying a rigid, uniform principle. If the Supreme Court ever decides to address this question, it could likely establish a fairly flexible test, similar to the Redmond opinion, allowing the courts a lot of discretion in subsequent cases.