Diaz-Quirazco v. Barr

• Decision Date: 23 July 2019
• Docket Number: No. 16-72387,16-72387
• Citation: 931 F.3d 830
• Parties: Fernando DIAZ-QUIRAZCO, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

931 F.3d 830

Fernando DIAZ-QUIRAZCO, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 16-72387

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2018 Portland, Oregon

Filed July 23, 2019

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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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.

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, 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.

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 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 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

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...