H. ESTRADA
26 I. & N. Dec. 749
| BIA | 2016Background
- Respondent: Guatemalan national, lawful permanent resident since 1991, convicted May 7, 1999 in Georgia of simple battery (Ga. Code § 16-5-23(a)(2)) following guilty plea; DHS initiated removal proceedings based on that conviction.
- Immigration Judge (IJ) found respondent removable as (1) convicted of a crime of domestic violence (INA § 237(a)(2)(E)(i)) and (2) convicted of a crime of violence aggravated felony (INA § 237(a)(2)(A)(iii)), pretermitting cancellation of removal under INA § 240A(a)(3).
- Respondent appealed, arguing (a) simple battery is not categorically a domestic-relationship offense because Georgia statute lacks a domestic-relationship element, and (b) his sentence was straight probation (no term of imprisonment ≥1 year), so not an aggravated felony under INA § 101(a)(43)(F).
- IJ relied on police incident reports and a family-violence incident report showing same address and victim identified as respondent’s girlfriend to find the offense domestic in nature.
- Sentencing records: a preprinted form ambiguously indicated “12 months” and “On Probation” with edits; the sentencing judge later issued an "Order Clarifying Sentence" stating the sentence was straight probation (no probated confinement).
- BIA decision: affirmed removability for crime of domestic violence (circumstance-specific inquiry, evidence sufficient) but reversed aggravated-felony finding because clarification order showed no term of imprisonment ≥1 year; remanded for further proceedings.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether simple battery conviction is a "crime of domestic violence" under INA § 237(a)(2)(E)(i) | The domestic relationship is not an element of the Georgia battery statute, so categorical approach defeats domestic-violence classification | Circumstance-specific inquiry may establish domestic relationship using reliable evidence (police/family-violence reports) | Court applied circumstance-specific approach and held evidence (police reports, charging documents) proved domestic relationship by clear and convincing evidence; removability under § 237(a)(2)(E)(i) affirmed |
| Whether the conviction is an aggravated felony under INA § 101(a)(43)(F) ("term of imprisonment at least 1 year") | The sentencing judge’s clarification shows straight probation with no probated confinement, so no term of imprisonment ≥1 year | The original sentencing form reasonably read as a 12‑month probated term of imprisonment (thus a term of imprisonment ≥1 year) | Court gave effect to the sentencing judge’s contemporaneous clarification order and held no term of imprisonment ≥1 year; aggravated-felony finding reversed, eligibility to seek relief restored |
Key Cases Cited
- United States v. Hayes, 555 U.S. 415 (2009) (domestic-relationship element need not be part of crime; factual inquiry may determine domestic nature)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (distinguishes categorical vs. circumstance-specific approaches; limited factual inquiry permissible)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (assesses when a statute is a categorical crime of violence)
- Hernandez-Zavala v. Lynch, 806 F.3d 259 (4th Cir. 2015) (applies circumstance-specific approach to INA § 237(a)(2)(E)(i))
- Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010) (permits proving domestic relationship by admissible evidence in immigration proceedings)
- Hernandez v. U.S. Att’y Gen., 513 F.3d 1336 (11th Cir. 2008) (holds Georgia simple battery is a categorical crime of violence)
- United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001) (interprets "term of imprisonment" to include probated jail sentences under Georgia law)
- United States v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013) (criticizes post-hoc sentencing clarification orders obtained to avoid federal sentence enhancements)