Garcia-Hernandez v. Boente
847 F.3d 869
| 7th Cir. | 2017Background
- Garcia-Hernandez, a Mexican national who entered without inspection in 2000, was charged in 2010 with violating an Illinois protection order after confronting the protected person at her residence; he pled guilty and received 12 months' supervision plus a domestic-violence program.
- After conviction he was placed in removal proceedings and conceded removability as present without admission; he sought cancellation of removal for nonpermanent residents under 8 U.S.C. § 1229b(b)(1) based on hardship to his U.S.-citizen children.
- § 1229b(b)(1) requires ten years' presence, good moral character, exceptional and extremely unusual hardship to qualifying relatives, and that the alien not have certain convictions listed in 8 U.S.C. § 1227(a)(2).
- The immigration judge and the Board concluded Garcia-Hernandez was ineligible because his violation fell within § 1227(a)(2)(E)(ii), which covers aliens enjoined under a protection order whom the court determines engaged in conduct violating portions of the order that involve protection against credible threats of violence, repeated harassment, or bodily injury.
- The IJ relied on state-court findings that Garcia-Hernandez violated a stay-away provision by confronting the protected person; the Board and this court deferred to the Board’s reading that stay-away/no-contact violations fall within (E)(ii).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1227(a)(2)(E)(ii) requires application of the categorical or modified categorical approach to state convictions | Garcia-Hernandez: statute requires categorical analysis; charging document did not show threats/repeated harassment or bodily injury, only a stay-away violation | Government/Board: (E)(ii) encompasses violations of provisions designed to prevent threats/harassment/injury, so stay-away violations qualify; IJ may look to state-court determinations | Court: Neither categorical nor modified categorical approaches control; focus is on what the state court “determined” about the violative conduct, and the state court’s determination here renders petitioner ineligible |
| Whether a stay-away/no-contact violation qualifies under § 1227(a)(2)(E)(ii) | Garcia-Hernandez: his conduct did not necessarily involve threats, repeated harassment, or bodily injury | Board/Government: stay-away provisions are meant to prevent such harms and their violation falls within (E)(ii) even if the specific harms did not occur | Court: Agrees with Board that violation of stay-away/no-contact provisions fits within (E)(ii) |
| Whether the IJ could consult conviction record to identify which portion of the order was violated | Garcia-Hernandez: conviction record did not establish the required substantive element (threats/harassment/injury) | Government: IJ may consult state-court findings and conviction record to determine what the court had determined | Court: IJ properly relied on state-court determinations in the conviction record; burden-of-proof argument waived and would not change result |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (sets out categorical approach)
- Shepard v. United States, 544 U.S. 13 (limits documents courts may consult when applying modified categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (discusses when categorical approach applies in immigration context)
- Nijhawan v. Holder, 557 U.S. 29 (addresses limits of categorical approach for loss-element offenses)
- Szalai v. Holder, 572 F.3d 975 (9th Cir.) (concurrence endorsing focus on state-court determinations under § 1227(a)(2)(E)(ii))
- Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir.) (construed (E)(ii) to reach no-contact violations)
- Cespedes v. Lynch, 805 F.3d 1274 (10th Cir.) (deferred to Board interpretation that no-contact provisions fall within (E)(ii))
- Hoodho v. Holder, 558 F.3d 184 (2d Cir.) (noting not all removability provisions require categorical approach)