27 I. & N. Dec. 173
BIA2017Background
- Respondent (Uzbek national) became a lawful permanent resident in 2015 and was convicted under N.Y. Penal Law §215.51(b)(iii) for criminal contempt for violating a state protection order.
- DHS charged respondent as removable under INA §237(a)(2)(E)(ii) (removability for violating protection orders).
- At removal proceedings the IJ excluded evidence outside the formal record of conviction and applied the categorical/modified categorical approaches, concluding the statute of conviction was overbroad and terminating proceedings.
- DHS appealed, arguing the categorical approach is not required and that an IJ may consider broader evidence of what the state court actually determined.
- The BIA held the categorical approach does not apply to §237(a)(2)(E)(ii); IJs should consider all probative, reliable evidence about what the state court determined regarding the violation and whether the order was issued to prevent domestic violence.
- The BIA vacated the IJ’s termination, sustained DHS’s appeal, reinstated proceedings, and remanded for consideration of admissible probative evidence and appropriate weighing.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether removability under INA §237(a)(2)(E)(ii) must be analyzed using the categorical/modified categorical approach when a conviction exists | The IJ properly applied the categorical/modified categorical approaches and terminated proceedings because conviction statute was overbroad | Categorical approaches do not control; immigration removal under §237(a)(2)(E)(ii) depends on what a court "determined," so IJs may consider broader evidence | The categorical approach does not apply; IJs should consider probative, reliable evidence of what the state court determined |
| Whether the circumstance-specific approach should apply | Implicitly that categorical rules should govern; no separate circumstance-specific plea | DHS urged a circumstance-specific approach to evaluate the actual conduct underlying the violation | Court rejected the circumstance-specific label as inapposite here but noted result may be similar: consider reliable evidence of the state-court determination |
Key Cases Cited
- Mellouli v. Lynch, 135 S. Ct. 1980 (U.S. 2015) (describing categorical approach as tied to statutory focus on convictions)
- Demarest v. Manspeaker, 498 U.S. 190 (U.S. 1991) (textual clarity ends statutory interpretation inquiry)
- Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017) (section 237(a)(2)(E)(ii) analysis depends on what the state court "determined")
- Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009) (not every removability provision requires categorical approach)
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (circumstance-specific approach applies where categorical approach does not govern discrete elements)
- Cespedes v. Lynch, 805 F.3d 1274 (10th Cir. 2015) (§237(a)(2)(E)(ii) requires a state-court determination that the conduct violated a protective term involving protection against threats or harm)
- Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315 (2d Cir. 2006) (weight accorded documentary evidence rests largely within IJ discretion)