Introduction: Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017)

On February 7, 2017, a three-judge panel of the United States Court of Appeals for the Seventh Circuit issued a published for-precedent decision in Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017) [PDF version]. In the decision, authored by Judge David Hamilton, the Seventh Circuit held that an alien’s violation of a “stay away” portion of an order of protection rendered him deportable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA). Significantly, the Seventh Circuit held that the categorical and modified categorical approaches are inapplicable to determining whether a conviction for violating an order of protection renders an alien deportable under section 237(a)(2)(E)(ii). Subsequent to the Seventh Circuit decision in Garcia-Hernandez, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017) [PDF version], wherein it followed the Seventh Circuit’s conclusion that the categorical and modified categorical approaches do not govern determinations of deportability under section 237(a)(2)(E)(ii).

In this article, we will examine the Garcia-Hernandez decision and the Seventh Circuit’s reasoning and conclusions. Please make sure to see our related article on the BIA decision in Matter of Obshatko to learn more about the current state of law surrounding section 237(a)(2)(E)(ii) of the INA.

Please note that Dana Boente was named as the respondent because he was the Acting U.S. Attorney General at the time the case was decided.

Factual and Procedural History

The petitioner, Martin Garcia-Hernandez, was a citizen of Mexico who had entered the United States without inspection in 2000.

In 2010, the mother of Garcia-Hernandez’s two children, Sara Talavera, obtained an emergency court order of protection against him. The order of protection was extended to be effective for one year.

About one month after the order of protection was issued against Garcia-Hernandez, he was charged under 720 Illinois Compiled Statutes (ILCS) 5/12-3.4 for violating the protection order by “confronting the complainant at the protected address and harassing her” and for failing to comply with the portion of the protection order requiring him to stay away from Talavera, her children, and their residence whenever either her or her children were present. Garcia-Hernandez pled guilty to the charges and was sentenced to twelve months of supervision and participation in a domestic violence clinic.

The Department of Homeland Security (DHS) initiated removal proceedings against Garcia-Hernandez after his conviction. However, Garcia-Hernandez was not charged as removable on the basis of his conviction, but rather under section 212(a)(6)(A)(i) of the INA as inadmissible for being present in the United States without being admitted or paroled.

In proceedings, Garcia-Hernandez conceded that he was removable, but he sought relief in the form of cancellation of removal under section 240A(b) based on hardship that would be incurred by his children were he to be removed. In order to be eligible for section 240A(b) cancellation of removal for non-permanent residents, Garcia-Hernandez had to establish that he had been physically present in the United States for ten years, that he had been a person of good moral character during that period, and that his removal would result in “exceptional or extremely unusual hardship” to his or her U.S. citizen or permanent resident spouse, parent, or child. Additionally, an applicant for cancellation of removal under section 240A(b) cannot have been convicted of an offense described in section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA. In the instant case, the issue was whether Garcia-Hernandez’s conviction for violating an order of protection brought him under section 237(a)(2).

The Seventh Circuit explained that ” [t]he legal issue for the immigration judge, the Board [of Immigration Appeals], and us now is whether Garcia-Hernandez’s conviction for violating the protection order makes him legally ineligible for cancellation of removal under the terms of [section 237(a)(2)(E)(ii) of the INA]. The Court explained that section 237(a)(2)(E)(ii) renders removable any alien who a 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.”

The immigration judge who presided over Garcia-Hernandez’s removal proceedings determined that his offense qualified under section 237(a)(2)(E)(ii). To this effect, the immigration judge relied upon the charging document to which Garcia-Hernandez pled guilty. The charging document stated that Garcia-Hernandez had harassed Talavera and violated the injunction to stay away from her. The Seventh Circuit explained that “[t]here is no doubt here that the protection order qualifies under (E)(ii) or that Garcia-Hernandez was the person enjoined by that order.”

Garcia-Hernandez appealed from the immigration judge’s decision to the BIA. There, he argued that section 237(a)(2)(E)(ii) did not apply in his case because the charging documents did not say “that he had actually made credible threats of violence or caused repeated harassment or bodily injury.” Instead, Garcia-Hernandez took the position that he had only admitted to failing to comply with the stay-away provision of the protection order, which would not fall under section 237(a)(2)(E)(ii). The Board upheld the immigration judge’s decision, determining that section 237(a)(2)(E)(ii) reaches beyond cases involving actual harassment or threats to “violations of provisions meant to prevent those behaviors, such as non-contact or stay-away provisions.”

Garcia-Hernandez appealed from the BIA’s decision to the Seventh Circuit.

Seventh Circuit Analysis and Conclusions

The first issue the Seventh Circuit addressed was whether it should apply categorical analysis to determine whether the respondent’s conviction fell under section 237(a)(2)(E)(ii). For a detailed explanation of what this means in the section 237(a)(2)(E)(ii) context, please see the relevant section of our article on the BIA decision in Matter of Obshatko [see section]. In short, the categorical approach and the modified categorical approach each examine the language of the statute of conviction and determine whether it falls under a statute that provides for immigration consequences as a result of certain convictions [see article for discussion of these approaches].

The Seventh Circuit noted that section 237(a)(2), on the whole, “spells out numerous categories of criminal offenses that will render an alien removable.” It added that “[a]ll but three of those provisions are framed in terms of criminal convictions.” That means that, with three exceptions, every deportability provision of section 237(a)(2) requires an actual conviction. You may see the list of deportability grounds listed in section 237(a)(2) in our full article [see article].

The Seventh Circuit listed the three provisions of section 237(a)(2) which do not require a conviction:

237(a)(2)(B)(ii): Applies to “[a]ny alien who is, or at any time after admission has been, a drug abuser or drug addict”;
237(a)(2)(F): Applies to aliens involved in human trafficking; and
237(a)(2)(E)(ii): Applies to aliens who violate protection orders (Emphasis added).

The Seventh Circuit here noted that section 237(a)(2)(E)(ii) does not require a conviction. As we will see, this fact would be decisive in the Seventh Circuit’s finding that categorical analysis is not applicable to section 237(a)(2)(E)(ii) adjudications. The Court reproduced the statute as follows:

Any alien who at any time after admission 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 (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendite lite order in another proceeding.

The Seventh Circuit explained that the prior litigation in the case before the immigration judge and the Board had focused on whether the respondent’s conviction categorically involved a portion of the order of protection “against credible threats of violence, repeated harassment, or bodily injury,” and if not, whether the modified categorical approach might apply. The Seventh Circuit stated that, at the time of oral arguments in the case, it had appeared that the statute was divisible (meaning that it listed separate and distinct offenses). However, between the oral argument and the Seventh Circuit’s issuance of its decision, the Supreme Court of the United States issued a decision in Mathis v. United States, 579 U.S. ___, (2016) [see article], which set new rules for determining whether a statute is divisible. Accordingly, the Seventh Circuit decided to take “a fresh look at the issue.”

Examining the language of section 237(a)(2)(E)(ii), the Court explained that, instead of depending on the fact of a conviction, the statute depends on a finding of what a court “determines” about an alien’s conduct in violating an order of protection. Accordingly, the Seventh Circuit determined that the issue of whether the categorical approach or modified categorical approach applied to the statute of conviction was moot because neither approach controls based on the language of section 237(a)(2)(E)(ii), which is not contingent on a conviction. Instead, the Court stated that “[w]hat matters is simply what the state court “determined” about Garcia-Hernandez’s violation of the protection order.”

The decision explained that it is “the court determines” language in section 237(a)(2)(E)(ii) which renders the categorical and modified categorical approaches inapplicable. It noted that “the protection order can be one that is issued and enforced in another proceeding (such as a divorce action in which a court holds the alien in contempt for violating the order.” Interestingly however, the Seventh Circuit noted that the cancellation of removal provision section 240A(b)(1) references a “conviction” (prohibiting an alien “convicted” of an offense under section 237(a)(2) from being granted cancellation). This is noteworthy in the case since the respondent was applying for cancellation of removal. However, the Seventh Circuit determined that the “court determines” language of section 237(a)(2)(E)(ii) specifically “points … away from any sort of categorical test with respect to that particular element of the federal statute.” The Seventh Circuit held that a court’s determination that the alien had violated a portion of an order protection covered by section 237(a)(2)(E)(ii) would be sufficient to trigger the applicability of section 237(a)(2)(E)(ii), regardless of the wording of the statute of conviction (if applicable).

Interestingly, the Seventh Circuit noted that it was not the first to come to this conclusion. In the United States Court of Appeals for the Ninth Circuit opinion in Szalai v. Holder, 572 F.3d 975, 982-87 [PDF version], United States District Court Judge George H. Wu (sitting by designation) authored a concurring opinion in which he argued that section 237(a)(2)(E)(ii) calls for a focus on the determinations of a court regarding a violation of an order of protection rather than the employment of categorical analysis.

Regarding the instant case, the Seventh Circuit explained that the immigration judge had assessed documents in the record of conviction to determine which portions of the protection order Garcia-Hernandez was charged with violating. The documents showed that the state court had determined that Garcia-Hernandez had violated the “stay-away” portion of the protection order “by going to Talavera’s residence and confronting her.” Based on this, the immigration judge determined that Garcia-Hernandez had violated portions of the order of protection that “involve[d] protection against credible threats of violence, repeated harassment, or bodily injury,” as specified in section 237(a)(2)(E)(ii). The Seventh Circuit found that the immigration judge’s determination was consistent with the published Board decision in Matter of Strydom, 25 I&N Dec. 507, 510-11 (BIA 2011) [PDF version], wherein the Board held that section 237(a)(2)(E)(ii) encompasses violations of “stay away” provisions of orders of protection. It is worth noting, as we discuss in our article on Matter of Obshatko, that the Board subsequently clarified Matter of Strydom to make clear that the categorical and modified categorical approaches are inapplicable to section 237(a)(2)(E)(ii).

For the foregoing reasons, the Tenth Circuit agreed with the Board’s decision in the instant case and denied Garcia-Hernandez’s petition for review.

Conclusion

In light of the Board’s subsequent decision in Matter of Obshatko, the most pertinent aspect of Garcia-Hernandez v. Boente is the Seventh Circuit’s rejection of the categorical analysis in the section 237(a)(2)(E)(ii) context. In the event that a different circuit declines to follow Garcia-Hernandez and to defer to Matter of Obshatko, there would then exist a circuit split which could eventually lead to the Supreme Court’s considering the issue. However, for the time being, it is important to note that this holding is binding on immigration judges nationwide through Matter of Obshatko and is binding within the jurisdiction of the Seventh Circuit (Illinois, Indiana, and Wisconsin) through Garcia-Hernandez.

It is also notable that Garcia-Hernandez deferred to the Board’s broad reading of section 237(a)(2)(E)(ii) in Matter of Strydom. In this respect, the decision noted that it joined the United States Court of Appeals for the Tenth Circuit in Cespedes v. Lynch, 805 F.3d 1274, 1277-78 (10th Cir. 2015) [PDF version] in doing so.

We will update the website with relevant news on the issues addressed in Matter of Obshatko and Garcia-Hernandez as it becomes available.