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399
Matter of Julio MEDINA-JIMENEZ, Respondent
Decided August 7, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The categorical approach does not govern whether violating a protection order under
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C)
of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only
decide whether the alien has been convicted within the meaning of the Act and whether
that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of
Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.
FOR RESPONDENT: N. David Shamloo, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Cathy Ng, Associate Legal
Counsel
BEFORE: Board Panel: COLE, GUENDELSBERGER, and KENDALL CLARK, Board
Members.
GUENDELSBERGER, Board Member:
This case is before us on remand from the United States Court of Appeals
for the Ninth Circuit to further consider the respondent’s eligibility for
cancellation of removal under section 240A(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(1) (2012), following his violation of a
protection order. We conclude that the respondent has been convicted of an
offense under section 237(a)(2)(E)(ii) of the Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), and is therefore ineligible for cancellation of removal under section
240A(b)(1)(C). The respondent’s appeal will again be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who claims that he
entered the United States without inspection in 1995. On July 28, 2010,
he pled guilty to contempt of court for violating a protection order issued
by an Oregon circuit court. He was sentenced to 7 days in jail, fined, and
placed on probation for 18 months. The Department of Homeland Security
(“DHS”) issued a notice to appear on July 30, 2010, charging that the
respondent is inadmissible under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
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§ 1182(a)(6)(A)(i) (2006), as an alien who is in the United States without
being admitted or paroled.
At a hearing before an Immigration Judge, the respondent conceded
removability and applied for cancellation of removal. In a decision dated
December 13, 2011, the Immigration Judge denied the respondent’s
application after finding that he was convicted of an offense under section
237(a)(2)(E)(ii) of the Act, which rendered him ineligible for cancellation
of removal under section 240A(b)(1)(C). We dismissed the respondent’s
appeal on September 14, 2013.
The respondent subsequently filed a motion requesting that the Oregon
court correct the original judgment entered with regard to his violation of a
protection order. On October 9, 2014, the court issued a “General Judgment
of Contempt” nunc pro tunc to the date of its original order, changing the
terminology relating to a “conviction” to that of a “contempt of court”
judgment. On January 27, 2015, the Ninth Circuit granted the Government’s
unopposed motion to remand for us to determine the effect of this new
judgment on the respondent’s eligibility for cancellation of removal. In a
decision dated July 14, 2015, we determined that, although Oregon no
longer considers contempt of court a “crime,” the respondent’s contempt
offense, which was processed under State law as “punitive,” resulted in his
“conviction,” as that term is defined by section 101(a)(48)(A) of the Act,
8 U.S.C. § 1101(a)(48)(A) (2012).
On August 10, 2016, the Ninth Circuit granted a second unopposed
motion in which the Government requested a remand for the Board to address
the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct. 2243
(2016), and Descamps v. United States, 570 U.S. 254 (2013), and to
consider in the first instance what approach—the categorical approach, the
“circumstance-specific” approach, or some other approach—should be used in
determining whether an alien is ineligible for cancellation of removal under
[section 240A(b)(1)(C)], for having been “convicted of an offense under section . . .
[237(a)(2)(E)(ii)],” and, if necessary, whether that same approach applies in the
context of determining an alien’s removability under [section 237(a)(2)(E)(ii)],
where a conviction is not required.
On remand, we requested supplemental briefing for the parties’ positions
on the issue now before us, taking into account our intervening decision
in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), and that of the
Seventh Circuit in Rodriguez v. Sessions, 876 F.3d 280 (7th Cir. 2017).
The respondent, whose brief was filed prior to our request, has argued,
among other things, that the categorical approach should be applied in his
case. Relying on Matter of Obshatko, the DHS contends that neither the
categorical approach nor the circumstance-specific approach is applicable.
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II. ANALYSIS
Pursuant to section 240A(b)(1)(C) of the Act, an alien is ineligible for
cancellation of removal if he or she has been “convicted of an offense
under section 212(a)(2), 237(a)(2), or 237(a)(3).” At issue in this case is
whether the respondent has been convicted of an offense under section
237(a)(2)(E)(ii), which refers, in part, to
[a]ny alien who at any time after admission 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 to the person or persons for whom
the protection order was issued.
In Matter of Obshatko, 27 I&N Dec. at 175, we determined that “the plain
language of section 237(a)(2)(E)(ii) makes clear that a ‘conviction’ is not
required to establish an alien’s removability” under that provision. We
therefore held that “whether a violation of a protection order renders an alien
removable under section 237(a)(2)(E)(ii) of the Act is not governed by the
categorical approach, even if a conviction underlies the charge.” Id. at 176.
In the context of cancellation of removal, section 240A(b)(1)(C) renders
ineligible any person “convicted of an offense under section 237(a)(2).” We
must therefore decide if this reference to a conviction triggers the application
of the categorical approach in assessing whether the respondent is barred
from relief because he has been “convicted” of an offense under section
237(a)(2)(E)(ii) of the Act. As with a determination regarding an alien’s
removability under section 237(a)(2)(E)(ii), we hold that the categorical
approach does not apply when deciding whether an alien’s violation of a
protection order renders him “convicted of an offense” for purposes of
section 240A(b)(1)(C). See Matter of Obshatko, 27 I&N Dec. at 176–77.
Instead, “an Immigration Judge should consider the probative and reliable
evidence regarding what a State court has determined about the alien’s
violation.” Id.
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.1 The Immigration
1 We emphasize that the question whether to apply the categorical approach, which
“looks to the statutory definition of the offense of conviction,” is a distinct inquiry from
determining whether someone has, in fact, been “convicted” for immigration purposes.
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).
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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.
The Seventh Circuit has addressed this issue and rejected the application
of the categorical approach in assessing whether an “offense under” section
237(a)(2)(E)(ii) of the Act is one that bars cancellation of removal under
section 240A(b)(1)(C). Garcia-Hernandez v. Boente, 847 F.3d 869, 872
(7th Cir. 2017); see also Rodriguez, 876 F.3d at 283–85. The court reasoned:
The key language [in section 237(a)(2)(E)(ii) of the Act], “the court determines,”
does not require a conviction of a particular kind or the categorical approach at all.
What matters is what the court “determines.” Section [237(a)(2)(E)(ii)] makes clear
that the protection order can be one that is issued and enforced in another proceeding
(such as a divorce action in which a court holds the alien in contempt for violating
the order). Given the reference to a “conviction” in [section 240A(b)(1)(C)], we
assume that a criminal conviction is needed, but the focus on what the court
“determines” points, as in Nijhawan [v. Holder, 557 U.S. 29 (2009)], away from any
sort of categorical test with respect to that particular element of the federal statute.
If a court “determines” that the alien has engaged in conduct that violates a portion
of the order that “involves protection against credible threats of violence,
repeated harassment, or bodily injury,” that is enough for purposes of [section
237(a)(2)](E)(ii)].
Garcia-Hernandez, 847 F.3d at 872.2
The Ninth Circuit has also held that the most logical reading of the
reference in section 240A(b)(1)(C) to an alien who has been “convicted of
an offense under section 212(a)(2), 237(a)(2), or 237(a)(3),” is an alien
who has been “convicted of an offense described under” any of those three
2 We acknowledge the Seventh Circuit’s reference to Nijhawan, in which the Supreme
Court applied a circumstance-specific approach in assessing the amount of loss to
the victim for purposes of the fraud aggravated felony removal ground at section
101(a)(43)(M) of the Act. In Matter of Obshatko, 27 I&N Dec. at 176, we distinguished
the circumstance-specific approach from an inquiry into whether an alien is
removable under section 237(a)(2)(E)(ii) of the Act, although we recognized that both
determinations might reach the same result. We find no reason to alter that analysis here.
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sections. Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004).3
In other words, once it is established that the respondent has committed an
offense described under section 237(a)(2)(E)(ii), section 240A(b)(1)(C) is
satisfied by evidence that the offense resulted in a conviction.
The use of the term “convicted” in section 240A(b)(1)(C) of the Act does
not mean that the categorical approach must be applied. That section refers
to offenses in various provisions of the Act that require a conviction, but here
we are concerned with an offense that is alleged to be “under” section
237(a)(2)(E)(ii) of the Act, for which a conviction is not essential. 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. Garcia-Hernandez, 847 F.3d at 872. Instead, Immigration
Judges need only decide whether the alien has been convicted within the
meaning of the Act and whether the conviction is for violating a protection
order under section 237(a)(2)(E)(ii).
Next, we must consider whether the record in this case establishes that
the respondent was convicted of an offense that renders him ineligible for
cancellation of removal under section 240A(b)(1)(C) of the Act. We have
already determined that the respondent has a conviction, as required by
this provision.4 The remaining question is whether his conviction is for an
offense described in section 237(a)(2)(E)(ii).
As we concluded in Matter of Obshatko, the statute directs us to assess
(1) whether a State court “determine[d]” 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.”
3 The bar to eligibility for cancellation of removal in section 240A(b)(1)(C) applies to
offenses referenced under section 237(a)(2), even if, as in this case, the alien is not “in and
admitted to the United States,” as required by section 237(a) of the Act for an alien to be
removable under a section 237(a)(2) ground. Gonzalez-Gonzalez, 390 F.3d at 651–53
& n.2; Matter of Ortega-Lopez, 27 I&N Dec. 382, 398 (BIA 2018). In Gonzalez-Gonzalez,
the Ninth Circuit addressed the domestic violence provision at section 237(a)(2)(E)(i) of
the Act and held that an alien who had never been admitted could be convicted of an offense
“under” section 237(a)(2) of the Act for purposes of the section 240A(b)(1)(C) bar.
4 Although most of the respondent’s arguments on remand pertain to our prior finding
that he has been “convicted” within the meaning of section 101(a)(48)(A) of the Act, we
fully addressed that issue in our July 14, 2015, decision. The current Ninth Circuit remand
order, which is predicated on the Government’s unopposed motion, does not direct us to
reconsider that issue.
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Matter of Obshatko, 27 I&N Dec. at 177 (alterations in original) (quoting
section 237(a)(2)(E)(ii) of the Act).
The record includes reliable and uncontested evidence that the respondent
was convicted of an offense under section 237(a)(2)(E)(ii) of the Act. The
judgment of the Oregon court states that the respondent was convicted of
contempt of court. It further indicates that the conviction was based on his
guilty plea to an information charging that he “did unlawfully and willfully
disobey a restraining order filed under the Family Abuse [Prevention] Act of
the Jefferson County Circuit Court by entering and remaining or attempting
to enter and remain within 150 feet of [the protected victim’s] residence.”
Thus, the court clearly determined that the respondent’s underlying conduct
involved a violation of the “stay-away” provision in a protection order issued
pursuant to the Oregon Family Abuse Prevention Act (“FAPA”), whose
purpose is to protect victims against threats of domestic violence.5 See Szalai
v. Holder, 572 F.3d 975, 978 n.2 (9th Cir. 2009) (per curiam) (stating that
“the essence of [FAPA] is to prevent acts of family violence through
restraining orders” (alteration in original) (citations omitted)).
The Ninth Circuit has ruled that the violation of a “stay-away” provision
issued under Oregon’s Family Abuse Prevention Act is one that “involves
protection against credible threats of violence, repeated harassment, or bodily
injury” within the meaning of section 237(a)(2)(E)(ii) of the Act. Szalai,
572 F.3d at 982; see also Alanis-Alvarado v. Holder, 558 F.3d 833, 838–40
(9th Cir. 2009). Relying on the Ninth Circuit’s decisions, we have also held
that a violation of such a protection order’s “stay-away” provision falls
within section 237(a)(2)(E)(ii). See Matter of Strydom, 25 I&N Dec. 507,
510 (BIA 2011) (stating that “the primary purpose of a no-contact order is to
protect the victims of domestic abuse by the offender”).
Based on this controlling authority, we conclude that the Immigration
Judge properly determined that the respondent is ineligible for cancellation
of removal because he has been convicted of an offense under section
237(a)(2)(E)(ii) of the Act. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.
5 The court subsequently granted the respondent’s motion to correct the judgment nunc
pro tunc and issued an amended judgment, explicitly stating that the respondent was “found
in violation of a restraining order on . . . Count number 1, Contempt of Court, ORS 33.015.”
In our July 14, 2015, decision, we held that this amended judgment was a “conviction”
under section 101(a)(48)(A) of the Act. Both the original and amended judgments are
therefore convictions that meet the requirements of section 237(a)(2)(E)(ii).