Ninth Circuit Defers to BIA's Determination that Categorical Approach does not Apply to Violation of a Protective Order Ground of Deportability

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decisions in Matter of Medina-Jimenez and Matter of Obshatko and concluded that the categorical approach does not apply to the analysis of whether a conviction related to violating a protective order disqualifies an applicant from cancellation of removal for non-lawful permanent residents. “The presence of the word ‘convicted’ in § 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii), renders the statutory language ambiguous regarding whether the categorical approach applies to determining whether an alien is removable under § 1229b(b)(1)(C) for violating a protection order under § 1227(a)(2)(E)(ii).” “The BIA’s two-step inquiry for determining whether an alien is ineligible for cancellation of removal based on a violation of a protection order is consistent with the statutory language and is a reasonable interpretation: whether the alien has been ‘convicted’ as defined by § 1101(a)(48)(A); and whether a state court found that the alien’s ‘offense’ involves conduct described under § 1227(a)(2)(E)(ii).”

The Ninth Circuit also agreed with the BIA that a state’s labeling of an offense as a conviction is not determinative as to whether the offense qualifies as a conviction under the immigration laws, so long as the underlying proceeding is criminal in nature. “The proceeding should at the very least comply with basic notions of procedural due process—e.g., notice and opportunity to be heard in front of an impartial tribunal.” Thus, a violation of an Oregon restraining order under the Family Abuse Prevention Act, though not considered a crime under Oregon law, meets the definition of a conviction for immigration purposes.

The full text of Diaz-Quirazco v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-72387.pdf

BIA Addresses Analysis for Conviction Related to Violation of a Protection Order

The Board of Immigration Appeals has confirmed the proper analysis under section 237(a)(2)(E)(ii) of the INA (violation of a protection order), as it relates to an application for cancellation of removal for non-lawful permanent residents.

"Two distinct inquiries must be made in applying section 240A(b)(1)(C) to determine whether a violation of a protection order is for an offense under section 237(a)(2)(E)(ii). First, an Immigration Judge must determine whether the offense at issue resulted in a “conviction” within the statutory definition set forth at section 101(a)(48)(A) of the Act.  The Immigration Judge must then decide whether the State court has found that the alien “engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued,” as directed by section 237(a)(2)(E)(ii). In conducting this second inquiry, Immigration Judges should follow the analysis provided in Matter of Obshatko—that is, they should review the probative and reliable evidence regarding whether the State court’s findings that a protection order has been violated meet the requirements of section 237(a)(2)(E)(ii). An Immigration Judge might reasonably conduct these two inquiries—neither of which involves the elements-based categorical approach—in either order."

"Although a conviction is necessary in the context of cancellation of removal, it would be incongruous to apply the elements-based categorical approach to section 237(a)(2)(E)(ii), which focuses on a court’s determination regarding an alien’s conduct."

The full text of Matter of Medina Jimenez:  https://www.justice.gov/eoir/page/file/1085701/download

Seventh Circuit Finds that Categorical Approach does not Apply to Violation of Protective Order

The Seventh Circuit has determined that the categorical approach does not apply to the determination as to whether a petitioner has violated section 237(a)(2)(E)(ii) of the INA (violation of a domestic violence-related protective order) because this section does not require a conviction.

The full text of Rodriguez v. Sessions can be found here: 

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D11-22/C:17-1568:J:Darrow:aut:T:fnOp:N:2066813:S:0

BIA Determines that Categorical Approach is Inapplicable to Determination as to Whether Respondent Violated a Protective Order

The Board of Immigration Appeals has determined that the categorical approach is inapplicable to the determination under section 237(a)(2)(E)(ii) of the INA as to whether a respondent has violated a domestic violence-related protective order because no conviction is required under this statute.  Instead, a judge should consider any reliable evidence to determine whether a state court has determined that the respondent violated a protective order.  In so doing, an Immigration Judge should decide (1) whether a State court determined that the alien has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury and (2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

The full text of Matter of Obshatko can be found here:

https://www.justice.gov/eoir/page/file/1012211/download

Seventh Circuit Construes Deportability for Violating a Protective Order

Section 237(a)(2)(E)(ii) of the INA renders deportable any alien who at any time after admission is en‐joined 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 to the person or persons for whom the protection order was issued.  The Seventh Circuit has determined that because the statute references a criminal court's determination, an immigration court is not confined to categorical approach when determining if a non-citizen violated the portion of an order designed to protect against threats, harassment, and injury.

The full text of Garcia-Hernandez v. Boente can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-07/C:15-2835:J:Hamilton:aut:T:fnOp:N:1908757:S:0

Tenth Circuit Addresses Violation of a Utah Domestic Violence Protective Order

In a published decision, the Tenth Circuit determined that a violation of a no contact order issued under the Utah's Cohabitant Abuse Procedures Act rendered a petitioner removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (violation of a domestic violence protective order).  In so doing, the court deferred to the Board of Immigration Appeals' decision in Matter of Strydom, and reiterated that even an attempt to contact the protected party, if such contact is forbidden by the protective order, is sufficient to render a petitioner removable.

The full text of Cespedes v. Lynch can be found here: https://www.ca10.uscourts.gov/opinions/14/14-9604.pdf