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.