Alvarez v. Garland, 33 F.4th 626

Background

Petitioner Carlos Anibal Alvarez is a Dominican national and lawful permanent resident convicted in 2002 of first‑degree criminal contempt for violating a 2001 New York protection order that barred contact and prohibited assault, harassment, etc.
DHS charged Alvarez with removability under 8 U.S.C. § 1227(a)(2)(E)(ii) (removability based on court finding that alien engaged in conduct violating a protection‑order provision protecting against threats, harassment, or bodily injury).
In 2008 an accredited representative conceded removability; Alvarez later sought to withdraw that concession when proceedings resumed after a long administrative closure.
The IJ (on remand) and the BIA applied a circumstance‑specific framework (following Matter of Obshatko), found removability established independent of the concession, and denied Alvarez’s application for cancellation of removal as an exercise of discretion.
Alvarez petitioned for review and moved to proceed in forma pauperis; the Second Circuit concluded his key legal challenge (that the agency should have applied the modified categorical approach) lacked any arguable basis in law or fact and dismissed the petition as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Issues

Issue	Alvarez's Argument	Government's Argument	Held
Whether a categorical or modified categorical approach must be used to determine removability under § 1227(a)(2)(E)(ii)	Agency should apply the modified categorical approach (treat protection‑order provisions analogously to divisible statute elements).	§ 1227(a)(2)(E)(ii) looks to the particular protection order and the alien’s conduct; statutory text requires circumstance‑specific inquiry, not categorical analysis.	Court: No arguable basis for modified categorical approach; statute unambiguously supports circumstance‑specific inquiry.
Whether Alvarez could withdraw his 2008 concession based on ineffective assistance of accredited representative	Concession was ineffective and should be withdrawn; removal cannot stand on that concession.	Even if concession stands, removability is established independently on the record; no egregious circumstances to permit withdrawal.	Court: BIA/IJ found removability independent of concession; Alvarez has no arguable basis to overturn.
Whether record establishes removability under § 1227(a)(2)(E)(ii)	Record insufficient under a categorical test to show removability.	State protection order and Alvarez’s contempt conviction show he engaged in conduct violating a provision protecting against physical harm/harassment.	Court: State conviction and record show conduct violating the protection order provision; removability established.
Reviewability of denial of cancellation of removal	IJ abused discretion; due process violated by credibility findings and consideration of arrested/reversed robbery conviction.	Discretionary denial is factbound and largely unreviewable; IJ permissibly considered arrests and criminal history.	Court: Jurisdiction limited; claims are unreviewable or lack arguable basis; denial affirmed as not reviewable here.

Key Cases Cited

Nijhawan v. Holder, 557 U.S. 29 (2009) (statutory language can signal that a fact‑specific inquiry, not categorical treatment, is required)
Mellouli v. Lynch, 575 U.S. 798 (2015) (categorical approach applies where statute depends on a conviction; courts must heed statutory text)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (conviction is the usual trigger for the categorical approach in immigration law)
United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (explaining categorical and modified categorical approaches)
Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (noting not all removability provisions require categorical analysis)
Garcia‑Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017) (holding § 1227(a)(2)(E)(ii) depends on court’s finding about the alien’s conduct, not a conviction)
Diaz‑Quirazco v. Barr, 931 F.3d 830 (9th Cir. 2019) (agreeing that the categorical approach does not apply to § 1227(a)(2)(E)(ii))