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Cespedes v. Lynch

United States Court of Appeals, Tenth Circuit

November 19, 2015

JOSE RAMON CESPEDES, Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General, Respondent

Lance C. Starr, Lance C. Starr, LLC, American Fork, Utah, for Petitioner.

Tim Ramnitz, Attorney, Office of Immigration Litigation, Civil Division, (Shelley R. Goad, Assistant Director, with him on the brief), U.S. Department of Justice, Washington, D.C., for Respondent.

Before HARTZ, O'BRIEN, and PHILLIPS, Circuit Judges.

OPINION

HARTZ, Circuit Judge.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

The Immigration and Nationality Act (INA) provides that a permanent resident is removable if he " violates the portion of a [domestic-violence] protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury." 8 U.S.C. § 1227(a)(2)(E)(ii). The issue before us is whether violation of an order prohibiting contact with a potential victim satisfies the statute. We hold that it does.

I. BACKGROUND

Petitioner Jose Ramon Cespedes, a native and citizen of Venezuela, entered the United States as a nonimmigrant tourist on January 11, 2011. His status was adjusted to conditional lawful permanent resident[1] on October 25, 2012. Later he was charged in Utah state court with domestic violence; and on April 24, 2013, that court issued a protective order against him under Utah's Cohabitant Abuse Procedures Act, Utah Code Ann. § 77-36-2.7 (2010). The statute states:

Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any defendant is charged with a crime involving domestic violence, the court may, during any court hearing where the defendant is present, issue a pretrial protective order, pending trial[.]

Id. § 77-36-2.7(3)(a). It then sets forth several specific prohibitions that can be included in such an order. The provision at issue here permits " prohibiting the defendant from . . . contacting . . . the victim, directly or indirectly." Id. § 77-36-2.7(3)(a)(ii).[2] The protective order tracked the language of the statute.[3]

In November 2013, Mr. Cespedes pleaded guilty to attempted violation of a protective order under Utah Code Ann. § 76-5-108(1) (2013), which covers violations of several types of protective orders.[4] He has not disputed that he was convicted of violating a protective order entered under the Cohabitant Abuse Procedures Act or that the provision of the order that he was convicted of violating was the provision stating that " the defendant shall not contact . . . the protected party." [5]

A few months later, on May 14, 2014, the Department of Homeland Security brought a charge to remove Mr. Cespedes under 8 U.S.C. § 1227(a)(2)(E)(ii). The statute permits removal of an alien who " 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." § 1227(a)(2)(E)(ii).[6] In a hearing before an immigration judge (IJ), Mr. Cespedes argued that his violation of the protection order did not come within the federal statute. The IJ rejected his argument and ordered him removed from the United States. He appealed to the Board of Immigration Appeals (BIA).

The BIA affirmed the IJ, relying on its holding in Matter of Strydom, 25 I. & N. Dec. 507, 510 (2011). An order protecting Strydom's wife from his abuse had included a no-contact provision. See id. at 507. He argued that his conviction may have been for merely attempting to call his wife by telephone. See id. at 507-08. A three-judge panel of the BIA rejected Strydom's argument that such a phone call would not fall within the federal statute. After noting that a protection order could issue under the state statute only " where there has been an abusive incident or there is an immediate danger of physical abuse, from which the court can offer protection," id. at 510, the BIA wrote:

One important form of protection provided to the court by the [state] statute is the authority to issue temporary protection from abuse orders requiring the offender to stay away from the victims. Thus, the respondent's attempt to minimize his violation as one of mere " contact" is not persuasive because the primary purpose of a no-contact order is to protect the victims of domestic abuse by the offender. In other words, the offender is ordered not to have any contact so that the victims will not be victimized again. The no-contact provision in the respondent's temporary protection order was one that " involves ...

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