Whether The Violation Of A Protective Order Makes One Removable Per INA § 237(A)(2)(E)(Ii) Is Not Controlled The Categorical Or Modified Categorical Approaches, Even Where A Conviction Underlies The Charge. Instead, An Immigration Judge Should Consider The Probative And Reliable Evidence Regarding What A State Court Has Determined About The Respondent’s Violation. Matter Of Strydom, 25 I&N Dec. 507 (BIA 2011) Clarified.

On November 17, 2017, the Board of Immigration Appeals (BIA or Board) ruled on a DHS appeal of an Immigration Judge (IJ) order terminating removal proceedings after holding the respondent was not removable under INA § 237(a)(2)(E)(ii) as one who had violated a protective order.  Respondent had been convicted of criminal contempt per section 215.5(b)(iii) of the New York Penal Law for violating a protective order issued by a State court, requiring him to stay away from a woman and her family.  As a result, DHS initiated proceedings charging him with removability per § 237(a)(2)(E)(ii), submitting documents that included a presentence report, a probation violation report, a prosecutor’s letter and sworn victims’ statements.  Because these materials are not part of the record of conviction, the IJ found they could not be considered in analyzing respondent’s removability under the categorical and modified categorical approaches, and held that, under either of these analyses, the statute of conviction is overbroad and he is therefore not removable under the INA section charged.

On appeal, DHS argued the IJ should have used the ‘circumstance-specific” approach in analyzing removability per 237(a)(2)(E)(ii).  The BIA began its analysis by noting that the plain language of this section of the Act makes clear that a “conviction” is not required to establish removability and framed the issue as whether the fact of a conviction “requires the application of the categorical and modified categorical approaches in determining removability under section 237(a)(2)(E)(ii)” even though the statutory language does not make a conviction necessary to removability.

Finding that the categorical approach is rooted in Congress’ specification that a conviction, not conduct, is “the trigger for immigration consequences”, the Board held that the legislative branch did not intend removability per 237(a)(2)(E)(ii) to be analyzed under either the categorical or modified categorical approach.  Support for this conclusion was found in multiple circuit court of appeals decisions.  However, the BIA did not agree with the DHS claim that it must apply the “circumstance-specific” approach in this case, stating that this approach “only applies when a portion of a criminal ground of removability is not subject to the categorical approach.”  (Emphasis in original.)  Here, the entire ground of removability is not subject to a categorical analysis and the Board therefore found that the plain language of 237(a)(2)(E)(ii) limits its analysis regarding removability to what a court has “determined” about a respondent’s protective order violation; this may be established “through any reliable evidence.”

The BIA thus held whether the violation of a protective order renders one removable per § 237(a)(2)(E)(ii) is not governed by the categorical approach, even if a conviction underlies the charge.  Instead, the IJ must consider “the probative and reliable evidence regarding what a State court has determined” about a respondent’s violation.  Further, concluded the opinion, the IJ should decide 1) whether a State court determined that one has engaged in conduct that violates the portion of a protective order that involved protection against credible threats of violence, repeated harassment or bodily injury and 2) whether the order was issued for the purpose of preventing violent or threatening acts of domestic violence.

In reaching this conclusion, the Board clarified its decision in Matter of Strydom, 25 I&N Dec. 507 (BIA 2011) in which it had presumed that the categorical approach applied in a similar case and found the appellant removable under 237(a)(2)(E)(ii); it now concluded that “this approach is not applicable” where removability under that section of the INA must be determined and held that it will no longer apply the categorical approach in cases involving a § 237(a)(2)(E)(ii) removability analysis.  

The IJ’s decision was vacated, the appeal sustained, proceedings reinstated and the record remanded for a new decision.  Matter of Obshatko, 27 I&N Dec. 173 (BIA  2017).

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