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.