Is a non-citizen removable for a violation of a no contact order?
Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA) states that “Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term ‘protection order’ means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts …”
The Board of Immigration Appeals (BIA) recently issued a precedential decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) addressing removability under INA Section 237(a)(2)(E)(ii). The BIA had previously employed the categorical and modified categorical approach to determine whether a conviction for a violation of a protective order rendered an alien removable. The categorical and modified categorical approach are used to determine whether a person’s prior convictions render that person removable (it is also used to determine whether certain federal sentencing enhancements apply, but that is not relevant here). In Obshatko, the BIA changed course and said that use of the categorical approach is not appropriate here because INA Section 237(a)(2)(E)(ii) does not require a conviction. Rather, that code section sets out that an alien is removable if a court determines that the alien has violated a protection order. As the categorical approach is used to determine whether a conviction makes an alien removable, at first glance this appears to be the correct interpretation of the statute. The BIA even found support for this proposition in a recent Seventh Circuit case, Garcia-Hernandez v. Boente, 847 F.3d 869, 872 (7th Cir. 2017).
Again, this initially appears to be the correct conclusion. However, upon further reflection I do not think that they were correct on this one. While I have not dug through the legislative history, there is a plausible reason why this section of the statute refers to a court’s determination rather than to a conviction. Orders of protection can be both criminal and civil in nature. In Iowa, a violation of a no-contact order (which is the essentially the same thing as an order of protection) can be punished either as a simple misdemeanor or through a contempt of court action. In either situation, the Court is required to find that the accused person violated the no-contact order by proof beyond a reasonable doubt. However, there is a difference in what facts the Court must find have been proven beyond a reasonable doubt. The contempt action requires the Court to find that the accused willfully violated the no-contact order, whereas the simple misdemeanor only requires the Court to find that the no-contact order was violated. The simple misdemeanor charge is a criminal charge, whereas the contempt of court action is referred to as a “quasi-criminal” action. It is referred to as “quasi-criminal” because, while it generally operates like a civil action, it carries the possibility of jail time as a sanction.
So, even though the code section does not technically require a conviction, it seems reasonable to conclude that the drafters of the legislation intended to cover convictions and court findings that act like convictions (i.e. findings of contempt that can result in a jail sentence or other quasi-criminal sanction). If they had simply stated that a conviction for a violation of a no-contact order resulted in an alien being removable, they would miss a whole swath of non-criminal convictions for what is essentially the same conduct they were trying to cover in INA Section 237(a)(2)(E)(ii). However, that does not mean that the categorical approach should not be used in these circumstances.
This post really only covers why I think the BIA and the Seventh Circuit were incorrect in their analysis of this issue. I wrote a lot more than I anticipated about this subject, however I will finish the analysis in a future post.