Matter of H. ESTRADA, Respondent
Interim Decision #3863
U.S. Dеpartment of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 27, 2016
26 I&N Dec. 749 (BIA 2016)
In analyzing whether a conviction is for a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012) , the circumstance-specific approach is properly applied to determine the domestic nature of the offense.- Where the respondent‘s original sentence for his Georgia conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepancy in her original order will be given effect in determining whether the respondent was sentenced to a term of imprisonment of at least 1 year.
FOR RESPONDENT: David S. Kennedy, Jr., Esquire, Gainesville, Gеorgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bianca H. Brown, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board Members.
PAULEY, Board Member:
In a decision dated September 30, 2015, an Immigration Judge found the respondent removable under section
The respondent is a native and citizen of Guatеmala who adjusted his status to that of a lawful permanent resident on May 6, 1991. On May 7, 1999, he was convicted of simple battery in violation of section
On appeal, the respondent argues that under the categorical approach, his conviction for simple battery is not for a crime of domestic violence because the Georgia Code does not specify that he was in a domestic relationship with the victim. He also contends that since his sentence was not to confinement for 1 year or more, his conviction is not for an aggravated felony under section
I. CRIME OF DOMESTIC VIOLENCE
We first consider whether the respondent‘s conviction was for a crime of domestic violenсe. The term “crime of domestic violence” in section
any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or who has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the persоn under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual‘s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
A determination whether a conviction is for a crime of domestic violence necessarily begins with an еlements-based approach, because a statute that lacks an element corresponding to a “crime of violence,” as defined in
Although the respondent does argue that the domestic nature of his offense was not categorically established, the categorical approach does not necessarily apply to all aspects of the determination whether a conviction is for a crime of domestic violence. The Supreme Court has found that there is a distinction between statutes that must be analyzed under the categorical approach and those that require a different approach because “words such as ‘crime,’ ‘felony,’ ‘offense’ and the like sometimes refer to a generic crime . . . and sometimes refer to the specific acts in which an offender engaged on a specific occasion.” Nijhawan v. Holder, 557 U.S. 29, 33-34 (2009) (citing Chambers v. United States, 555 U.S. 122, 125-26 (2009)). If the statutory language refers directly to a generic crime, then the categorical approach applies, but if the statute contains qualifying language that references the specific circumstances in which a crime was committed, then a circumstance-specific analysis must be applied. Id. at 37-38.
There is no uniformity among the circuits on the issue of the proper approach to be employed in analyzing whether an offense is a crime of domestic violence. To our knowledge, the Eleventh Circuit has not addressed this matter. However, the more recent and persuasive authority supports the Immigration Judge‘s conclusion that the question whether an alien has been convicted of a crime of domestic violence should be assessed pursuant to a circumstance-specific inquiry, which permits recourse to all probative evidence. See Hernandez-Zavala v. Lynch, 806 F.3d 259, 266 (4th Cir. 2015) (holding that the circumstance-specific approach should apply in reviewing section
The Fourth Circuit‘s decision, which was rendered after the Immigration Judge‘s opinion in this case, relied on the Supreme Court‘s interpretation of “nearly identical statutоry text” in the criminal context in United States v. Hayes, 555 U.S. 415 (2009), which it found “to be instructive.” Hernandez-Zavala, 806 F.3d at 266. In Hayes, the Court held that the domestic nature of a conviction for a “misdemeanor crime of domestic violence” need not be an element of the offense and may, instead, be found by a factual inquiry. Hayes, 555 U.S. at 426. The Fourth Circuit found it significant that the Ninth Circuit‘s contrary conclusion in Tokatly
A circumstance-specific inquiry into the domestic nature of an offense is a limited one and “is not an invitation to relitigate the conviction itself.” Nijhawan, 557 U.S. at 42 (quoting the Government‘s brief). It “involves the inspection of a single threshold fact“—the relationship between the offender аnd the victim—which requires only a “straightforward and objective” determination by the adjudicator. Hernandez-Zavala, 806 F.3d at 267; see also Hayes, 555 U.S. at 427 n.9. This is an objective fact that can be readily ascertained by identifying the victim in question and his or her domestic relationship, if any, to the respondent. Such a limited assessment of the nature of the crime comports with due process and is fundamentally fair, because a respondent has two opportunities to contest the domestic nature of the offense—first during the criminal proceedings and again at the removal hearing itself. See Nijhawan, 557 U.S. at 42.
The respondent argues that the circumstance-specific approach cannot be applied to determine whether his conviction for simple battery was for a “crime of domestic violence” because a separate battery statute, section
Section
Finally, the respondent argues that even if the circumstance-specific approach applies, the evidence is insufficient to establish the domestic nature of his battery conviction. We disagree.
Under the circumstance-specific approach in immigration proceedings, аll reliable evidence may be considered, including documents that comprise the formal “record of conviction.” See Matter of Garza-Olivares, 26 I&N Dec. 736, 742 n.4 (BIA 2016); Matter of Babaisakov, 24 I&N Dec. 306, 320-21 (BIA 2007); see also Nijhawan, 557 U.S. at 41-43; Bianco, 624 F.3d at 272-73 (stating that the Government may prove the domestic nature of an offense by “using the kind of evidence generally admissible before an immigration judge“). Such evidence may include police reports and records, provided that the information in the report is reliable. See Matter of Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988) (holding that police reports are admissible in immigration proceedings and that their contents are properly considered absent a claim that the respondent‘s statements were made involuntarily or that information was obtained as the result of egregious police misconduct); cf. Garces v. U.S. Att‘y Gen., 611 F.3d 1337, 1349-50 (11th Cir. 2010) (finding that, absent corroboration, police reports were not sufficient evidence to establish removability where the “arrest reports state the police officers’ conclusions . . . rather than recording their observations of facts to show guilt“).
Several documents in the record provide reliable evidence that the respondent and his victim were in a relationship covered by section
The respondent has offered no evidence to contest either the identity of the victim or her relationship to him. Furthermore, the evidence in the record demonstrates that the respondent‘s victim is “а person who is protected from [the respondent‘s] acts under the domestic or family violence laws of . . . any State” within the meaning of section
II. CRIME OF VIOLENCE AGGRAVATED FELONY
We must also decide whether the respondent‘s simple battery offense is an aggravated felony under section
The respondent‘s conviction record includes a sentencing document on a preprinted form that provides for only two possible sentences: imprisonment or imprisonment with some or all of the term being served on probation. The form order does not allow for the possibility of probation as a separate punishment without a corresponding probated term of imprisonment. The distinction between this straight probation and a probated term of imprisonment is critical in this case because the Eleventh Circuit has concluded that the phrase “term of imprisonment” encompasses
The sentencing judge filled out the form order by circling “Misdemеanor Sentence” and writing “12” in the field corresponding to the total number of “months in the State Penal System” to be served. In the same section, the judge wrote “On Probation” and crossed out the form language pertaining to the imposition of a probated sentence. The language of the form order and the judge‘s edits to that language make the meaning of the order unclear as to whether the respondеnt was sentenced to straight probation or a probated term of imprisonment. However, the same judge that presided over the respondent‘s sentencing hearing subsequently issued an “Order Clarifying Sentence.” That order states in pertinent part:
No portion of the probationary time was subject to any term or period of confinement whatsoever. This Court clarifies that the entire probationary sentence was meant to be straight probation, not a probated confinement sentence. The use of fill-in template sentencing sheets . . . would appear to indicate that Defendant was sentenced to a period of confinement that was later probated, but this is not the case.
The Immigration Judge found that the most reasonable interpretation of the sentencing order is that it imposes a 12-mоnth probated term of imprisonment. He concluded that the clarifying order is not entitled to deference, citing United States v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013). That case involved a clarification order issued by a State judge after the sentencing judge had ordered the defendant to serve 12 months of confinement. The Eleventh Circuit rejected the “subjective, interpretive clarification order,” noting that it was obtained from a different judge, long after entry of the original State sentence, for the purpose of preventing enhancement of the defendant‘s sentence for unlawful reentry in Federal court. Id. at 1289. In particular, the court was troubled by the fact that the original order was clear with respect to the imposition of a 12-month sentence to confinement. Id. at 1288; see also Herrera v. U.S. Att‘y Gen., 811 F.3d 1298 (11th Cir. 2016) (concluding that an order purporting to clarify that the original sentence did not includе “any confinement whatsoever” did not affect the initial order‘s unambiguous imposition of house arrest as a condition of probation, which constituted a “term of imprisonment” under the Act).
We do not read the Eleventh Circuit‘s decision in Garza-Mendez as rejecting all clarification orders, especially where the concerns raised by the court are not present. In this case, the sentencing judge entered the clarification order in an attempt to cоrrect an obvious discrepancy that
Our interpretation of the clarifiсation order is consistent with section
According to the clarification order, the respondent was sentenced to probation for a period of 12 months, none of which was the result of a probated sentence of imprisonment. We therefore conclude that the respondent‘s simple battery conviction is not for an aggravated felony within the meaning of section
Accordingly, the appeal will be sustained with respect to the Immigration Judge‘s finding that the respondent is removable under section
ORDER: The appeal is dismissed in part and sustained in part.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.