On May 27, 2016 the Board of Immigration Appeals (BIA or Board) sought to determine the process for considering whether a conviction for simple battery in Georgia, a categorical crime of violence, is a conviction for a crime of domestic violence, finding that such inquiry must begin with an elements-based approach. Citing to Nijhawan v. Holder, 557 U.S. 29, 33-34 (2009), the BIA found that – contrary to the respondent’s contention on appeal – the categorical approach does not necessarily apply to this determination, stating that if the criminal statute’s language refers directly to a generic crime, the categorical approach applies, but if it contains qualifying language like “domestic” that references the specific circumstances under which the crime was committed, a circumstance-specific analysis must be applied.
Referring to a Fourth Circuit decision rendered after the respondent was found removable but which relied on the U.S. Supreme Court’s interpretation of nearly identical statutory text, the Board held that the domestic nature of an offense is an objective fact that can be readily ascertained by identifying the victim and his or her relationship to the respondent and concluded that the circumstance-specific approach (here, reviewing 2 separate incident reports) comports with due process and is fundamentally fair.
The BIA also had to decide whether respondent’s battery conviction qualified as a crime of violence aggravated felony “for which the term of imprisonment [was] for at least one year”, as it had already found the offense was for a “crime of violence” under applicable circuit law; in this case the pertinent inquiry revolved around whether respondent had received the necessary sentence. His conviction record, a preprinted form had been filled out in an ambiguous manner by the judge, who later issued an “Order Clarifying Sentence” which made clear that respondent was never subject to any period of confinement and that the sentence was meant to be straight probation, not a probated sentence of confinement. Contrary to the finding of the Immigration Judge (IJ) who gave the order no defence, the Board held that the sentencing judge was in the best position to ascribe meaning to the otherwise ambiguous record and found it appropriate to give effect to the order, noting that all Georgia courts have the power to correct defects in the record, including the authority to correct discrepancies arising in preprinted sentencing forms, as was the case here.
Finding 1) the respondent is removable under INA §237(a)(2)(E)(i) as one convicted of a domestic violence crime but 2) his battery conviction is not for an aggravated felony crime of violence because he was not sentenced to at least 1 year in prison, the BIA dismissed in part and sustained in part the appeal and remanded the record to the IJ to allow respondent to file for relief. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016).
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