BIA Holds That The Categorical Approach Does Not Govern Whether Violation Of A Protection Order Per INA §237(a)(2)(E)(ii) Renders One Ineligible For Cancellation Of Removal Under INA §240A(b)(1)(C); Instead, Immigration Judges Need Only Decide Whether One Has Been Convicted Within The Meaning Of The INA And Whether That Conviction Is For Violating A Protection Order Under §237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), Followed.
On August 7, 2018, the Board of Immigration Appeals (BIA or Board), on remand from the Ninth Circuit Court of Appeals, found respondent ineligible for cancellation under INA §240A(b)(1)(C) and dismissed his appeal. Respondent had pled guilty to contempt of court for violating a protection order issued in Oregon. DHS charged him with inadmissibility under INA §212(a)(6)(A)(i) as one in the U.S. without admission or parole. Before the Immigration Judge (IJ), respondent conceded removability and applied for cancellation. The IJ denied the application, finding respondent had been convicted of an offense under INA §237(a)(2)(E)(ii) and thus was ineligible per §240A(b)(1)(C). The BIA dismissed his appeal and respondent convinced the Oregon court to correct the original judgment by issuing a “General Judgment of Contempt” nunc pro tunc to its original order, changing the wording from “conviction” to “contempt of court.” The Ninth Circuit subsequently granted DHS’ unopposed motion to remand to the BIA to determine the effect of the new judgment on respondent’s cancellation eligibility. The Board then found that, though Oregon no longer considers contempt of court a “crime,” respondent’s offense was processed by the state as “punitive,” resulting in a “conviction” under INA §101(a)(48)(a). The Ninth Circuit granted a second unopposed DHS motion so that the BIA could address the effects of the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct. 2243 (2016) and Descamps v. United States, 570 U.S. 254 (2013) and to consider what approach – categorical, circumstance-specific, etc. – should be used to determine cancellation eligibility under §240A(b)(1)(C) for one who has been convicted of an offense under §237(a)(2)(E)(ii) and whether that same approach applies in determining removability under §237(a)(2)(E)(ii), where a conviction is not required. In supplemental briefing, respondent argued that the categorical approach should be applied here; DHS contended that, under the intervening decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), neither the categorical nor the circumstance-specific approach applies.
In its analysis, the Board first framed the issue as whether respondent has been convicted of an offense per §237(a)(2)(E)(ii) in that he “has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.” Matter of Obshatko had concluded that, under §237(a)(2)(E)(ii), a conviction is not required to “establish removability under that provision” and therefore held that whether violation of a protection order renders one removable is not governed by the categorical approach, even if a conviction underlies the charge.
Additionally, because §240A(b)(1)(C) renders ineligible for cancellation anyone “convicted of an offense under section 237(a)(2),” the BIA had to decide if this reference triggers the application of the categorical approach in assessing whether one is barred from relief because of a conviction under §237(a)(2)(E)(ii). The Board held, consistent with Obshatko, that the categorical approach will not apply when deciding if a violation of a protection order renders a respondent “convicted of an offense” under 240A(b)(1)(C). Instead, the IJ must consider “the probative and reliable evidence” regarding the State court’s determination about the violation.
The BIA concluded that two district inquiries must be made in applying 240A(b)(1)(C) to determine whether violation of a protection order is for an offense under 237(a)(2)(E)(ii): 1) the IJ must determine whether the offense resulted in a “conviction” under §101(a)(48)(A) and 2) then decide whether the State court found the respondent engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, reported harassment, or bodily injury to those for whom the order was issued. In conducting the second inquiry, held the Board, IJs should follow Obshatko analysis in reviewing the probative and reliable evidence to determine whether the court’s finding of a violation meets the requirements of §237(a)(2)(E)(ii).
Next, the BIA considered whether the instant record “establishes that the respondent was convicted of an offense that renders him ineligible for cancellation of removal” per §240A(b)(1)(C). As the Board had already determined he had the required conviction, the only remaining question was whether it is for an offense described in 237(a)(2)(E)(ii). Because the record includes an Oregon court judgment stating that respondent was convicted of contempt of court based on his guilty plea to an information charging that he willfully disobeyed a restraining order issued under an Oregon statute “whose purpose is to protect victims against threats of domestic violence,” and such a violation falls within §237(a)(2)(E)(ii), the opinion found the IJ had properly determined that respondent is ineligible for cancellation and dismissed the appeal. Matter of Medina-Jimenez, 27 I&N Dec. 399 (BIA 2018).