H. ESTRADA

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 (BIA 2016)                                Interim Decision #3863




                   Matter of H. ESTRADA, Respondent
                               Decided May 27, 2016

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) In analyzing whether a conviction is for a crime of domestic violence under section
   237(a)(2)(E)(i) of the Immigration and Nationality Act, 

(a)(2)(E)(i)
   (2012), the circumstance-specific approach is properly applied to determine the
   domestic nature of the offense.
(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous
   as to whether he was sentenced to probation or a probated term of imprisonment, a
   clarification order issued by the sentencing judge to correct an obvious discrepancy in
   her original order will be given effect in determining whether the respondent was
   sentenced to a term of imprisonment of at least 1 year.
FOR RESPONDENT: David S. Kennedy, Jr., Esquire, Gainesville, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bianca H. Brown, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:


    In a decision dated September 30, 2015, an Immigration Judge found
the respondent removable under section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act, 

(a)(2)(A)(iii) (2012), as
an alien convicted of a crime of violence aggravated felony, and under
section 237(a)(2)(E)(i), as an alien convicted of a crime of domestic
violence. The Immigration Judge pretermitted the respondent’s application
for cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C.
§ 1229b(a)(3) (2012), based on his conviction for an aggravated felony.
The respondent has appealed from that decision. The appeal will be
dismissed in part and sustained in part, and the record will be remanded to
the Immigration Judge for further proceedings.
    The respondent is a native and citizen of Guatemala who adjusted his
status to that of a lawful permanent resident on May 6, 1991. On May 7,
1999, he was convicted of simple battery in violation of section
16-5-23(a)(2) of the Georgia Code Annotated pursuant to a plea of guilty.


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The Department of Homeland Security (“DHS”) initiated these removal
proceedings on the basis of the respondent’s conviction. 1
    On appeal, the respondent argues that under the categorical approach,
his conviction for simple battery is not for a crime of domestic violence
because the Georgia Code does not specify that he was in a domestic
relationship with the victim. He also contends that since his sentence was
not to confinement for 1 year or more, his conviction is not for an
aggravated felony under section 101(a)(43)(F) of the Act, 

(a)(43)(F) (2012).

                  I. CRIME OF DOMESTIC VIOLENCE
   We first consider whether the respondent’s conviction was for a crime
of domestic violence. The term “crime of domestic violence” in section
237(a)(2)(E)(i) of the Act means

      any crime of violence (as defined in section 16 of title 18, United States Code)
      against a person committed by a current or former spouse of the person, by an
      individual with whom the person shares a child in common, by an individual who
      is cohabiting with or who has cohabited with the person as a spouse, by an
      individual similarly situated to a spouse of the person under the domestic or family
      violence laws of the jurisdiction where the offense occurs, or by any other
      individual against a person who is protected from that individual’s acts under the
      domestic or family violence laws of the United States or any State, Indian tribal
      government, or unit of local government.

    A determination whether a conviction is for a crime of domestic
violence necessarily begins with an elements-based approach, because a
statute that lacks an element corresponding to a “crime of violence,” as
defined in 

 (2012), cannot be a crime of domestic violence.
See United States v. Castleman, 

 (2014). Under the
precedent of the United States Court of Appeals for the Eleventh Circuit, in
whose jurisdiction this case arises, simple battery in violation of section
16-5-23(a)(2) of the Georgia Code Annotated is a categorical crime of
violence, which is defined in § 16(a) as “an offense that has as an element
the use, attempted use, or threatened use of physical force.” Hernandez
v. U.S. Att’y Gen., 

, 1339−42 (11th Cir. 2008); see also
United States v. Yanes-Cruz, 

 (11th Cir. 2015) (finding
that battery under section 16-5-23.1(a) of the Georgia Code Annotated is a
1
   The respondent was also convicted of sexual battery in violation of section 16-6-22.1
of the Georgia Code Annotated on May 7, 1999. The DHS did not rely on that
conviction as a basis for removability and does not argue that it is pertinent on appeal.


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categorical crime of violence). The respondent does not challenge the
Immigration Judge’s determination that he was convicted of a categorical
crime of violence based on the elements necessary for such a conviction.
    Although the respondent does argue that the domestic nature of his
offense was not categorically established, the categorical approach does not
necessarily apply to all aspects of the determination whether a conviction is
for a crime of domestic violence. The Supreme Court has found that there
is a distinction between statutes that must be analyzed under the categorical
approach and those that require a different approach because “words such
as ‘crime,’ ‘felony,’ ‘offense’ and the like sometimes refer to a generic
crime . . . and sometimes refer to the specific acts in which an offender
engaged on a specific occasion.” Nijhawan v. Holder, 

, 33−34
(2009) (citing Chambers v. United States, 

, 125−26 (2009)). If
the statutory language refers directly to a generic crime, then the categorical
approach applies, but if the statute contains qualifying language that
references the specific circumstances in which a crime was committed, then
a circumstance-specific analysis must be applied. 

 at 37−38.
    There is no uniformity among the circuits on the issue of the proper
approach to be employed in analyzing whether an offense is a crime of
domestic violence. To our knowledge, the Eleventh Circuit has not
addressed this matter. However, the more recent and persuasive authority
supports the Immigration Judge’s conclusion that the question whether an
alien has been convicted of a crime of domestic violence should be assessed
pursuant to a circumstance-specific inquiry, which permits recourse to all
probative evidence. See Hernandez-Zavala v. Lynch, 

(4th Cir. 2015) (holding that the circumstance-specific approach should
apply in reviewing section 237(a)(2)(E)(i) of the Act); Bianco v. Holder,

, 272−73 (5th Cir. 2010) (holding that “a crime of domestic
violence need not have as an element the domestic relation of the victim to
the defendant,” which “can be proven by evidence generally admissible for
proof of facts in administrative proceedings”); see also Matter of E.
Velasquez, 

, 280−81 n.1 (BIA 2010). But see Tokatly
v. Ashcroft, 

 (9th Cir. 2004).
    The Fourth Circuit’s decision, which was rendered after the
Immigration Judge’s opinion in this case, relied on the Supreme Court’s
interpretation of “nearly identical statutory text” in the criminal context in
United States v. Hayes, 

 (2009), which it found “to be
instructive.” Hernandez-Zavala, 

. In Hayes, the Court held
that the domestic nature of a conviction for a “misdemeanor crime of
domestic violence” need not be an element of the offense and may, instead,
be found by a factual inquiry. Hayes, 

. The Fourth Circuit
found it significant that the Ninth Circuit’s contrary conclusion in Tokatly

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was rendered before the Supreme Court decided both Hayes and Nijhawan,
which expressly determined that a circumstance-specific approach was
appropriately applied to various provisions of the immigration
statute.    Consequently, the Fourth Circuit did “not find Tokatly’s
reasoning persuasive given the Supreme Court’s subsequent holdings.”
Hernandez-Zavala, 

; accord Bianco, 624 F.3d at 269−70.
    A circumstance-specific inquiry into the domestic nature of an offense
is a limited one and “is not an invitation to relitigate the conviction itself.”
Nijhawan, 

 (quoting the Government’s brief). It “involves
the inspection of a single threshold fact”—the relationship between the
offender and the victim—which requires only a “straightforward and
objective” determination by the adjudicator. Hernandez-Zavala, 

; see also Hayes, 

 n.9. This is an objective fact that
can be readily ascertained by identifying the victim in question and his or
her domestic relationship, if any, to the respondent. Such a limited
assessment of the nature of the crime comports with due process and is
fundamentally fair, because a respondent has two opportunities to contest
the domestic nature of the offense—first during the criminal proceedings
and again at the removal hearing itself. See Nijhawan, 

.
    The respondent argues that the circumstance-specific approach cannot
be applied to determine whether his conviction for simple battery was for a
“crime of domestic violence” because a separate battery statute, section
16-5-23.1(f) of the Georgia Code Annotated, punishes the more serious
offense of “family violence battery.” We do not agree that the existence of
a State statute expressly prohibiting domestic violence is dispositive as to
whether a conviction is for a crime of domestic violence under section
237(a)(2)(E)(i) of the Act. This contention is based on the flawed
assumption that the domestic nature of the crime must be described as an
element of the underlying offense. Rather, the focus of the circumstance
specific approach is on the factual circumstances in which the crime was
committed. Additionally, there is no indication that domestic violence in
Georgia is prosecuted only under section 16-5-23.1(f). As the Supreme
Court has noted, domestic violence is routinely prosecuted under general
assault and battery statutes, even in States with statutes that specifically
proscribe domestic violence. See Hayes, 

; see also
Castleman, 

.
    Section 237(a)(2)(E)(i) of the Act contemplates a variety of offenses
that may constitute crimes of domestic violence under the appropriate
circumstances. What these crimes have in common, beyond the element of
force, is the domestic relationship between the offender and the victim.
Congress passed the domestic violence provision in 1996 when two-thirds
of the States did not have laws that specifically proscribed domestic

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violence. Hayes, 

; see also Castleman, 

.
To treat the domestic violence circumstance as requiring a categorical
approach as to the domestic nature of the crime would frustrate the manifest
purpose of the legislation by rendering it inapplicable in the clear majority
of the States. See Hayes, 555 U.S. at 426−27; Hernandez-Zavala, 

; Bianco, 

. We are not persuaded that Congress
would have intended this result. See Luna Torres v. Lynch, No. 14-1096,

, at *6 (U.S. May 19, 2016) (reaffirming the principle
from Nijhawan and Hayes that the categorical approach should not be
applied so as to produce the “haphazard” result of preventing the Act from
applying to a significant majority of State offenses). We therefore conclude
that the circumstance-specific approach is properly applied in analyzing the
domestic nature of a conviction to determine if it is for a crime of domestic
violence.
    Finally, the respondent argues that even if the circumstance-specific
approach applies, the evidence is insufficient to establish the domestic
nature of his battery conviction. We disagree.
    Under the circumstance-specific approach in immigration proceedings,
all reliable evidence may be considered, including documents that comprise
the formal “record of conviction.” See Matter of Garza-Olivares, 

, 742 n.4 (BIA 2016); Matter of Babaisakov, 

,
320−21 (BIA 2007); see also Nijhawan, 557 U.S. at 41−43; Bianco, 624
F.3d at 272−73 (stating that the Government may prove the domestic nature
of an offense by “using the kind of evidence generally admissible before an
immigration judge”). Such evidence may include police reports and
records, provided that the information in the report is reliable. See Matter
of Grijalva, 

, 721−22 (BIA 1988) (holding that police
reports are admissible in immigration proceedings and that their contents
are properly considered absent a claim that the respondent’s statements
were made involuntarily or that information was obtained as the result of
egregious police misconduct); cf. Garces v. U.S. Att’y Gen., 

,
1349−50 (11th Cir. 2010) (finding that, absent corroboration, police reports
were not sufficient evidence to establish removability where the “arrest
reports state the police officers’ conclusions . . . rather than recording their
observations of facts to show guilt”).
    Several documents in the record provide reliable evidence that the
respondent and his victim were in a relationship covered by section
237(a)(2)(E)(i) of the Act. Two separate incident reports document the
actions giving rise to the respondent’s simple battery conviction. The first
report names the respondent and his victim, listing the same address for
both. It details a statement the victim gave to the police, in which she
identifies the respondent as her boyfriend. A second report, entitled a

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“Family Violence Incident Report,” was prepared by the police, as required
under Georgia law whenever an incident of family violence is investigated.
See 

(c) (West 1998). This report also states that
the respondent and his victim shared the same address. In answer to the
question of the “relationship of primary aggressor to victim(s),” the
response selected is “lives in the same household or formerly lived in
household.” See 

(f) (West 1998) (providing that
a battery committed between persons “living or formerly living in the same
household” constitutes the offense of “family violence battery”); see also

(f) (West 1998) (employing the same language in
relation to the offense of simple battery). The individual identified as the
victim in these reports is also named on the criminal charging document
that was the basis of the respondent’s guilty plea.
    The respondent has offered no evidence to contest either the identity of
the victim or her relationship to him. Furthermore, the evidence in the
record demonstrates that the respondent’s victim is “a person who is
protected from [the respondent’s] acts under the domestic or family
violence laws of . . . any State” within the meaning of section
237(a)(2)(E)(i) of the Act. See Matter of E. Velasquez, 

n.1 (discussing the “broad class of victims” included in section
237(a)(2)(E)(i)). Considering the totality of the evidence, we agree with the
Immigration Judge that the DHS has established the domestic nature of the
respondent’s offense by clear and convincing evidence and that the
respondent is therefore removable under section 237(a)(2)(E)(i) based on
his conviction for a crime of domestic violence.

        II. CRIME OF VIOLENCE AGGRAVATED FELONY
    We must also decide whether the respondent’s simple battery offense is
an aggravated felony under section 101(a)(43)(F) of the Act, as a “crime of
violence . . . for which the term of imprisonment [was] at least one year.”
Since we have determined that the respondent’s conviction is for a “crime
of violence” under governing circuit law, the remaining issue is whether he
was sentenced to a term of imprisonment of at least 1 year.
    The respondent’s conviction record includes a sentencing document on
a preprinted form that provides for only two possible sentences:
imprisonment or imprisonment with some or all of the term being served on
probation. The form order does not allow for the possibility of probation as
a separate punishment without a corresponding probated term of
imprisonment. The distinction between this straight probation and a
probated term of imprisonment is critical in this case because the Eleventh
Circuit has concluded that the phrase “term of imprisonment” encompasses

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any amount of a prison or jail sentence that is “probated” under Georgia
law. See United States v. Ayala-Gomez, 

, 1317−19 (11th Cir.
2001).
    The sentencing judge filled out the form order by circling
“Misdemeanor Sentence” and writing “12” in the field corresponding to the
total number of “months in the State Penal System” to be served. In the
same section, the judge wrote “On Probation” and crossed out the form
language pertaining to the imposition of a probated sentence. The language
of the form order and the judge’s edits to that language make the meaning
of the order unclear as to whether the respondent was sentenced to straight
probation or a probated term of imprisonment. However, the same judge
that presided over the respondent’s sentencing hearing subsequently issued
an “Order Clarifying Sentence.” That order states in pertinent part:

     No portion of the probationary time was subject to any term or period of
     confinement whatsoever. This Court clarifies that the entire probationary sentence
     was meant to be straight probation, not a probated confinement sentence. The use
     of fill-in template sentencing sheets . . . would appear to indicate that Defendant
     was sentenced to a period of confinement that was later probated, but this is not the
     case.

    The Immigration Judge found that the most reasonable interpretation of
the sentencing order is that it imposes a 12-month probated term of
imprisonment. He concluded that the clarifying order is not entitled to
deference, citing United States v. Garza-Mendez, 

 (11th Cir.
2013). That case involved a clarification order issued by a State judge after
the sentencing judge had ordered the defendant to serve 12 months of
confinement. The Eleventh Circuit rejected the “subjective, interpretive
clarification order,” noting that it was obtained from a different judge, long
after entry of the original State sentence, for the purpose of preventing
enhancement of the defendant’s sentence for unlawful reentry in Federal
court. 

. In particular, the court was troubled by the fact that the
original order was clear with respect to the imposition of a 12-month
sentence to confinement. 

; see also Herrera v. U.S. Att’y Gen.,

 (11th Cir. 2016) (concluding that an order purporting to
clarify that the original sentence did not include “any confinement
whatsoever” did not affect the initial order’s unambiguous imposition of
house arrest as a condition of probation, which constituted a “term of
imprisonment” under the Act).
    We do not read the Eleventh Circuit’s decision in Garza-Mendez as
rejecting all clarification orders, especially where the concerns raised by the
court are not present. In this case, the sentencing judge entered the
clarification order in an attempt to correct an obvious discrepancy that

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exists on the face of her original order. As the judge who imposed the
original sentence, she is in the best position to ascribe meaning to the
otherwise ambiguous alterations she made on the preprinted form order.
We therefore find it appropriate to give effect to the sentencing judge’s
clarification order.
    Our interpretation of the clarification order is consistent with section
17-10-1(f) of the Georgia Code Annotated, which imposes strict time limits
with respect to a sentencing court’s ability to change or “modify” a
sentence. See also State v. Mohamed, 

 (Ga. Ct. App.
1992) (holding that once the defendant’s sentence had been served, the
court lost jurisdiction over him and therefore lacked authority to modify the
sentence). However, all courts in Georgia have the authority to correct
defects in their records at any time. See State v. Hart, 

(Ga. Ct. App. 2003) (stating that the court had the “inherent power to
correct or conform an erroneous recording of [its] intended sentence”).
This inherent power also includes the authority to correct discrepancies that
arise from the use of preprinted sentencing forms, as was the situation here.
See Hopper v. Williams, 

 (Ga. 1977). In this case, the
sentencing judge had the authority to clarify the prior sentencing order to
reflect her original intent. See Rutland v. State, 

 (Ga. Ct.
App. 1914) (“The power of amending records so as to make them speak the
truth is of course inherent in all courts of record . . . .”).
    According to the clarification order, the respondent was sentenced to
probation for a period of 12 months, none of which was the result of a
probated sentence of imprisonment. We therefore conclude that the
respondent’s simple battery conviction is not for an aggravated felony
within the meaning of section 101(a)(43)(F) of the Act because he was not
sentenced to a term of imprisonment of at least 1 year. Consequently, the
conviction does not support a finding that the respondent is removable
under section 237(a)(2)(A)(iii) of the Act or that he is statutorily ineligible
for cancellation of removal pursuant to section 240A(a)(3) of the Act.
    Accordingly, the appeal will be sustained with respect to the
Immigration Judge’s finding that the respondent is removable under section
237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony.
The respondent’s appeal will be dismissed with respect to his removability
under section 237(a)(2)(E)(i) as an alien convicted of a crime of domestic
violence. The record will be remanded to give the respondent an
opportunity to seek relief from removal.
    ORDER: The appeal is dismissed in part and sustained in part.
    FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

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