Cite as
27 I&N Dec. 173 (BIA 2017) Interim Decision #3909
Matter of Alex Pieniazek OBSHATKO, Respondent
Decided November 17, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Whether a violation of a protection order renders an alien removable under section
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), is not governed by the categorical approach, even if a conviction underlies the
charge; instead, an Immigration Judge should consider the probative and reliable evidence
regarding what a State court has determined about the alien’s violation. Matter of Strydom,
25 I&N Dec. 507 (BIA 2011), clarified.
FOR RESPONDENT: Ramon E. Rivera, Esquire, Syracuse, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert P. Levy, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated September 7, 2016, an Immigration Judge terminated
these removal proceedings, finding that the respondent is not removable
under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(E)(ii) (2012), as an alien who has violated a protection
order. The Department of Homeland Security (“DHS”) has appealed from
that decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Uzbekistan whose status was
adjusted to that of a lawful permanent resident on February 6, 2015. On
March 9, 2015, the respondent was convicted of criminal contempt under
section 215.51(b)(iii) of the New York Penal Law after it was determined
that he had violated an order of protection issued by a State court requiring
him to stay away from a woman and her family. 1
1
At the time of the respondent’s offense, section 215.51(b)(iii) of the New York Penal
Law provided in relevant part as follows:
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Based on this offense, the DHS initiated removal proceedings against the
respondent, charging him with removability under section 237(a)(2)(E)(ii) of
the Act. In support of the charge, the DHS submitted various documents,
including a presentence report, a report regarding the respondent’s violation
of probation, a letter from a prosecutor, and sworn statements from the
respondent’s victims. Because these documents are not part of the
respondent’s record of conviction, the Immigration Judge determined that
they could not be considered in analyzing the respondent’s removability
under the categorical and modified categorical approaches. Applying these
approaches, the Immigration Judge concluded that the respondent’s statute
of conviction was overbroad and that he is not removable under section
237(a)(2)(E)(ii) based on his conviction for criminal contempt.
On appeal, the DHS argues that the Immigration Judge should not have
employed the categorical and modified categorical approaches in deciding
whether the respondent is removable. According to the DHS, it is
appropriate to apply the circumstance-specific approach in analyzing
removability under section 237(a)(2)(E)(ii) of the Act. The respondent
asserts that the Immigration Judge properly terminated the proceedings after
applying the categorical and modified categorical approaches.
II. ANALYSIS
Section 237(a)(2)(E)(ii) of the Act provides as follows:
Any 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 is deportable. For purposes of this clause, the term
“protection order” means any injunction issued for the purpose of preventing violent
or threatening acts of domestic violence, including temporary or final orders issued
by civil or criminal courts (other than support or child custody orders or provisions)
whether obtained by filing an independent action or as a pendente lite order in
another proceeding.
A person is guilty of criminal contempt in the first degree when:
...
(b) in violation of a duly served order of protection, . . . he or she:
...
(iii) intentionally places or attempts to place a person for whose protection such order
was issued in reasonable fear of physical injury, serious physical injury or death
when he or she communicates or causes a communication to be initiated with such
person . . . .
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While we recognize that a conviction may result from an alien’s violation
of a protection order, as it does in this case, the plain language of section
237(a)(2)(E)(ii) makes clear that a “conviction” is not required to establish
an alien’s removability. See Demarest v. Manspeaker, 498 U.S. 190 (1991)
(“When we find the terms of a statute unambiguous, [the] inquiry is complete
except in rare and exceptional circumstances.”); Matter of Briones,
24 I&N
Dec. 355, 361 (BIA 2007). The issue before us, therefore, is whether the fact
of an alien’s conviction requires the application of the categorical
and modified categorical approaches in determining removability under
section 237(a)(2)(E)(ii), even though the statutory language clearly indicates
that no conviction is necessary for the alien to be removable. 2
The categorical approach is “[r]ooted in Congress’ specification of
conviction, not conduct, as the trigger for immigration consequences.”
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Because Congress did not
require a “conviction” under section 237(a)(2)(E)(ii) of the Act, we conclude
that it did not intend an alien’s removability under that section to be analyzed
under either the categorical or modified categorical approach. Given the
limitations that the categorical approach places on the evidence that may be
considered in determining an alien’s removability, to hold otherwise would
produce anomalous results. For example, if the categorical approach applies
to an alien who was convicted of violating a protection order, under certain
circumstances he may be entitled to a more favorable outcome than an alien
whose violation did not result in a conviction.
We find support for our conclusion in decisions of the circuit courts that
have examined this issue. For instance, the United States Court of Appeals
for the Seventh Circuit held that “neither the categorical approach nor
the modified categorical approach controls” the analysis of an alien’s
removability under section 237(a)(2)(E)(ii) because, unlike other provisions
of the Act, the “text of [that section] does not depend on a criminal conviction
but on what a court ‘determines.’” Garcia-Hernandez v. Boente, 847 F.3d
869, 872 (7th Cir. 2017); see also Hoodho v. Holder,
558 F.3d 184, 189 n.2
(2d Cir. 2009) (noting that “[n]ot every removability provision requires
application of the ‘categorical approach’ or the ‘modified categorical
approach’” and declining to decide whether these approaches apply to
section 237(a)(2)(E)(ii)). 3 We agree with the Seventh Circuit that “[w]hat
2
Several grounds of removability may be supported by, but do not require, a conviction.
See, e.g., section 212(a)(2)(C)(i) of the Act,
8 U.S.C. § 1182(a)(2)(C)(i) (2012) (relating to
persons believed to be illicit traffickers in controlled substances); section 212(a)(2)(D)
(pertaining to prostitution); section 212(a)(6)(E)(i) (relating to alien smuggling).
3
In Hoodho, the Second Circuit, in whose jurisdiction this case arises, applied the
modified categorical approach in rejecting an alien’s contention that his record of
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matters” in analyzing an alien’s removability under this provision “is simply
what the state court ‘determined’ about [the alien’s] violation of the
protection order.” Garcia-Hernandez,
847 F.3d at 872.
We do not agree, however, with the DHS’s argument that we should
apply the “circumstance-specific” approach in evaluating the respondent’s
removability. That approach applies only when a portion of a criminal
ground of removability is not subject to the categorical approach. See, e.g.,
Nijhawan v. Holder, 557 U.S. 29, 40 (2009) (holding that the categorical
approach is not applied to the monetary threshold in section 101(a)(43)(M)(i)
of the Act,
8 U.S.C. § 1101(a)(43)(M)(i) (2012), which is assessed based on
the “the specific circumstances surrounding an offender’s commission of a
fraud and deceit crime”). Unlike the ground of removability at issue in
Nijhawan, the entire ground we consider here is not subject to a categorical
analysis. Thus, a circumstance-specific approach is inapposite. Instead, the
plain language of section 237(a)(2)(E)(ii) limits the analysis of an alien’s
removability to what a court has “determined” about the alien’s violation of
a protection order. See Garcia-Hernandez,
847 F.3d at 872; Cespedes
v. Lynch,
805 F.3d 1274, 1278 (10th Cir. 2015) (holding that section
237(a)(2)(E)(ii) only requires an Immigration Judge to find that a State court
determined that the alien’s “conduct violated the terms of the order” and that
those terms “involve[d] protection against credible threats of violence”).
Nevertheless, in practical terms, the result in this case may be the same
under the circumstance-specific approach, since both the specific
circumstances surrounding an alien’s violation and what a court has
“determined” regarding that violation may be established through any
reliable evidence. See Matter of H. Estrada, 26 I&N Dec. 749, 753 (BIA
2016) (“Under the circumstance-specific approach in immigration
proceedings, all reliable evidence may be considered, including documents
that comprise the formal ‘record of conviction.’”); see also Matter of D-R-,
25 I&N Dec. 445, 458 (BIA 2011) (“In immigration proceedings, the ‘sole
test for admission of evidence is whether the evidence is probative and its
admission is fundamentally fair.’” (citation omitted)), remanded on other
grounds, Radojkovic v. Holder,
599 F. App’x 646 (9th Cir. 2015).
We therefore hold 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.
Instead, an Immigration Judge should consider the probative and reliable
evidence regarding what a State court has determined about the alien’s
conviction failed to establish his removability. Hoodho, 558 F.3d at 189í90. However,
we do not read that case as requiring the use of either the categorical or modified categorical
approach in this case, because the alien’s argument there assumed that these approaches
governed the application of section 237(a)(2)(E)(ii). Id. at 189.
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violation. In so doing, an Immigration Judge should decide (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.” Section 237(a)(2)(E)(ii) of the Act.
In reaching this conclusion, we clarify our decision in Matter of Strydom,
25 I&N Dec. 507 (BIA 2011). Like the respondent, the alien in that case was
convicted of violating a protection order. Although the applicability of the
categorical approach was not at issue, we presumed that it applied and
determined that the alien’s conviction rendered him removable under section
237(a)(2)(E)(ii). 4 However, the applicability of the categorical approach is
squarely at issue here, and we now conclude that this approach is not
applicable where an alien’s removability under section 237(a)(2)(E)(ii) must
be determined. Accordingly, we will not apply the categorical approach in
this or any future cases involving section 237(a)(2)(E)(ii) of the Act.
Consequently, the Immigration Judge erred in applying the categorical
approach to determine that the respondent’s conviction for criminal contempt
does not render him removable under section 237(a)(2)(E)(ii). We will
therefore vacate the Immigration Judge’s decision to terminate the
proceedings and will remand the record for further consideration of the
respondent’s removability. On remand, the Immigration Judge should admit
and consider all the probative and reliable evidence that relates to the
respondent’s violation of the protection order and accord it the appropriate
weight. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006) (holding that the weight given to documentary evidence “‘lie[s]
largely’ within the discretion” of the Immigration Judge (citation omitted)).
Accordingly, the DHS’s appeal will be sustained, the removal proceedings
will be reinstated, and the record will be remanded for further proceedings.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
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.
4
Likewise, we applied the categorical approach to the prostitution ground in section
212(a)(2)(D) of the Act in Matter of Gonzalez-Zoquiapan, 1'HF í %,$
2008), because the only evidence of removability was the alien’s conviction documents.
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