876 F.3d 280
7th Cir.2017Background
- Gabriela Rodriguez entered the U.S. without inspection in 1999 and lived with Manuel Ramirez. Ramirez obtained a temporary restraining order (TRO) in February 2000 alleging imminent danger of physical harm; the TRO included stay-away/avoidance and no-contact provisions.
- Rodriguez remained in the shared residence, was charged under Wis. Stat. § 813.12(8)(a) with knowingly violating the TRO, pleaded no contest to that charge in April 2001, and also pleaded no contest to bail jumping (the latter not at issue).
- DHS placed Rodriguez in removal proceedings in 2009; she sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), which requires, among other things, that the alien not have been convicted of certain offenses enumerated in 8 U.S.C. § 1227(a)(2)(E)(ii).
- The immigration judge found Rodriguez statutorily ineligible for cancellation based solely on her TRO-violation conviction; the BIA affirmed, holding the stay-away provision involved protection against threats of violence and that a court had determined Rodriguez violated that portion.
- The Seventh Circuit reviewed the BIA’s legal conclusions de novo and applied Chevron deference where appropriate to the BIA’s interpretation of ambiguous immigration statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1227(a)(2)(E)(ii) requires applying the categorical approach to a state statute before determining eligibility for cancellation | Rodriguez: Wisconsin restraining-order statute can be obtained without violence and thus does not categorically protect against threats of violence; categorical analysis needed and would defeat removability | Government/BIA: The relevant inquiry is whether a court determined the alien violated the portion of the protection order that involved protection against threats of violence; categorical analysis not required | Court: Categorical approach is not required for (E)(ii); statute depends on a court’s determination about the order and its parts, not on whether the underlying state statute categorically matches a generic offense |
| Whether the TRO at issue qualified as a "protection order" and included a portion involving protection against credible threats of violence, harassment, or bodily injury | Rodriguez: The Wisconsin statute can reach non-violent conduct; the TRO’s purpose / provisions may not necessarily be limited to preventing violence | BIA/Government: TRO titled for domestic abuse, states petitioner was in imminent danger, includes stay-away and no-contact provisions—thus it is a protection order and the avoidance-of-residence provision involves protection against threats of violence | Court: TRO is a protection order; the stay-away/avoidance provision involves protection against credible threats of violence and similar harms |
| Whether a court determination that the alien violated the relevant portion of the order was made (and whether a conviction is required) | Rodriguez: Her no-contest plea and the Wisconsin statute do not establish the required court determination that she violated a portion protecting against threats of violence | BIA/Government: The state court record and charging document show a court determined Rodriguez violated the stay-away provision; conviction is not strictly required so long as a court made the determination | Court: A court did determine Rodriguez violated the avoidance-of-residence provision; that determination (via plea) satisfies (E)(ii); conviction is not a prerequisite to the statutory inquiry |
Key Cases Cited
- Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017) (explaining (E)(ii) depends on a court’s determination and that categorical approach is not triggered by the text of (E)(ii))
- Taylor v. United States, 495 U.S. 575 (1990) (establishing the categorical approach for comparing statutes to generic offenses)
- Descamps v. United States, 570 U.S. 254 (2013) (limiting use of modified categorical approach and emphasizing reliance on the statutory elements)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (discussing when categorical inquiry is triggered by statutes tied to convictions)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (Sixth Amendment principles on jury findings increasing penalties)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (deference to reasonable agency interpretations of ambiguous statutes)
- Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014) (principle that when BIA issues its own opinion, courts review the BIA’s decision)
- Karroumeh v. Lynch, 820 F.3d 890 (7th Cir. 2016) (standards for de novo review of legal questions)
- Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010) (applying Chevron deference to BIA interpretations)