27 I. & N. Dec. 399
BIA2018Background
- Respondent, a Mexican national admitted without inspection, pled guilty in Oregon (July 28, 2010) to contempt of court for violating a FAPA protection order (stay‑away provision); sentenced to jail, fine, and probation.
- DHS charged removability and respondent applied for cancellation of removal under INA §240A(b)(1); IJ denied relief finding conviction under INA §237(a)(2)(E)(ii).
- Oregon later amended the judgment nunc pro tunc to call the disposition a contempt finding rather than a "conviction;" Ninth Circuit remanded for the Board to reconsider in light of that amendment and Supreme Court decisions (Mathis/Descamps).
- The Board, following Matter of Obshatko, held that the categorical approach does not govern whether a protection‑order violation qualifies under INA §237(a)(2)(E)(ii) for purposes of the §240A(b)(1)(C) cancellation bar.
- The Board required two inquiries: (1) whether the state disposition constitutes a "conviction" under INA §101(a)(48)(A); and (2) whether the state court determined the defendant engaged in conduct that violated the protection order in a way that "involves protection against credible threats of violence, repeated harassment, or bodily injury."
- Applying controlling Ninth Circuit authority (Szalai/Alanis‑Alvarado) and the record (guilty plea/admissions to violating stay‑away), the Board concluded the respondent was convicted of an offense under INA §237(a)(2)(E)(ii) and is ineligible for cancellation; appeal dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the categorical approach governs eligibility under §240A(b)(1)(C) for convictions "under" §237(a)(2)(E)(ii) | Respondent: the categorical (elements‑based) approach should apply | DHS/BIA: categorical approach is inapplicable; apply Obshatko analysis (court‑determination focus) | Categorical approach does not apply; IJ must (a) determine if state disposition is a statutory "conviction," and (b) assess whether the state court determined the conduct fits §237(a)(2)(E)(ii) without elements‑based parsing |
| Whether respondent’s Oregon contempt/correction qualifies as a "conviction" under INA §101(a)(48)(A) | Respondent: amended judgment shows contempt not a crime and challenges conviction status | DHS/BIA: prior BIA decision already concluded the disposition is a conviction under §101(a)(48)(A) | Board treats the disposition as a conviction for immigration purposes (previously decided) |
| Whether the state court’s findings establish violation of a protection order "involving protection against credible threats of violence, repeated harassment, or bodily injury" | Respondent: challenges application of §237(a)(2)(E)(ii) and the standard to be applied | DHS/BIA: record (guilty plea to disobeying stay‑away order under FAPA) satisfies statutory requirement | Held that the state court determined violation of a FAPA stay‑away order, which meets §237(a)(2)(E)(ii) requirements |
| Whether conviction under §237(a)(2)(E)(ii) bars cancellation of removal under §240A(b)(1)(C) | Respondent: contends he remains eligible (due to judgment correction and categorical approach) | DHS/BIA: conviction under §237(a)(2)(E)(ii) renders respondent ineligible | Respondent ineligible for cancellation; appeal dismissed |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (Supreme Court decision on categorical approach and divisible statutes)
- Descamps v. United States, 570 U.S. 254 (2013) (Supreme Court clarifying limits of categorical approach)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (circumstance‑specific inquiry applied in fraud/aggravated‑felony context)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (distinguishing conviction inquiry from categorical‑approach analysis)
- Garcia‑Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017) (rejecting categorical approach for §237(a)(2)(E)(ii) inquiry; focus on what the court "determines")
- Rodriguez v. Sessions, 876 F.3d 280 (7th Cir. 2017) (addressing similar approach issues under §237(a)(2)(E)(ii))
- Gonzalez‑Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) (interpreting §240A(b)(1)(C) as barring relief for convictions "described under" §237(a)(2))
- Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) (holding that violation of an Oregon FAPA stay‑away order involves protection against threats/harassment for §237(a)(2)(E)(ii) purposes)
- Alanis‑Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009) (same, treating stay‑away violations as within §237(a)(2)(E)(ii))