Decided August 7, 2018
This case is a sequel to Matter of OBSHATKO.
In that case, the BIA determined that the categorical approach should not be applied when determining whether a violation of a protection order renders an immigrant removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act – even when a conviction underlies the charge of removability.
In this case, the BIA further held that whether an individual is disqualified from cancellation of removal under INA § 240A(b)(1)(C) for having been “convicted” of an offense under INA § 237(a)(2)(E)(ii) also should not be determined under the categorical approach. The bar to eligibility for cancellation of removal in section 240A(b)(1)(C) applies to offenses referenced under section 237(a)(2), even if, as in this case, the immigrant is not “in and admitted to the United States,” as required by section 237(a) of the Act for an immigrant to be removable under a section 237(a)(2) ground. Gonzalez-Gonzalez, 390 F.3d at 651–53 & n.2; Matter of Ortega-Lopez, 27 I&N Dec. 382, 398 (BIA 2018).

The categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.

Decided November 11, 2017
This case clarifies that the ground of removability for violating a protection order found at INA § 237(a)(2)(E)(ii) of the Immigration and Nationality Act, which can cause an immigrant to be deported regardless of when the conviction takes place after admission, and even if the immigrant is a permanent resident.  The plain language of that statue does not require that the immigrant be convicted for a violation of a protection order, only that a court – civil or criminal – “determine” that the immigrant’s conduct violated the order and that the order is to protect against violence/ harassment.  Notably, the immigrant’s conduct does not need to be violent or harassing.
While a conviction is not required for this ground of removability, the Immigration Judge in OBSHATKO determined that because there was a conviction – in that case, for contempt of court, the categorical/ modified categorical approach to reading the statutory language of the conviction should apply.  Under that framework, the Immigration Court determined that the immigrant was not removable and terminated the proceedings against him.  However, on appeal, the BIA concluded that the Immigration Judge erred.  The BIA determined that the categorical approach does not apply, even if a conviction underlies the charge.

We therefore hold that whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Act is not governed by the categorical approach, even if 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 alien’s violation. In so doing, an Immigration Judge should decide (1) whether a State court “determine[d]” that the alien “has engaged in conduct that violates the portion of a protection order that involve[d] 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.” Section 237(a)(2)(E)(ii) of the Act.

Whether an individual is disqualified from cancellation of removal under INA § 240A(b)(1)(C) for having been “convicted” of an offense under INA § 237(a)(2)(E)(ii) might arguably involve the categorical approach.