Introduction: Matter of H. Estrada — Analyzing When a Conviction is for a Crime of Domestic Violence

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [PDF version], the Board of Immigration Appeals (BIA) found that in order for a conviction to be for a crime of domestic violence under the deportability provision in section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), the statute itself need not be categorically for a crime of domestic violence. Rather, a “circumstance-specific” approach may be utilized to determine whether a domestic relationship existed between the offender and the victim.

Because the Matter of H. Estrada dealt with two distinct issues, we have broken the case into multiple articles for your convenience. Before reading further, please read our article providing an overview of the Matter of H. Estrada and an in-depth look into the facts of the case [see article].

To read about the portion of the Matter of H. Estrada that deals with the use of clarifying orders in determining whether a sentence was for a term of one year’s imprisonment for purpose of being for an aggravated felony for a crime of violence (under section 101(a)(43)(F)), please see our full article [see article].

In this article, we will discuss the issues in the Matter of H. Estrada relating to whether the respondent’s conviction was for a crime of domestic violence.

Brief Overview

The respondent, a lawful permanent resident (LPR), was convicted of simple battery in violation of section 16-5-23(a)(2) of the Georgia Code Annotated under a guilty plea. The immigration judge found that this conviction was for a crime of domestic violence under section 237(a)(2)(E)(i).

BIA Analysis on Whether Conviction was for a Crime of Domestic Violence

The Immigration Judge found that the respondent’s Georgia conviction was for a crime of domestic violence defined in section 237(a)(2)(E)(i) of the INA. The statute defines domestic violence as follows:

For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

The Board noted that “a statute that lacks an element corresponding to a ‘crime of violence’ as defined in 18 U.S.C. 16 [upon which section 237(a)(2)(E)(i) relies], cannot be a crime of domestic violence.” Accordingly, the Board stated that a determination of whether a conviction is a crime of domestic violence “necessarily begins with an elements-based approach.” The Board noted that under the precedent of the Eleventh Circuit (under the jurisdiction of which Georgia resides) found in Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339-432 (11th Cir. 2008) [PDF version], a conviction of simple battery in violation of section 16-5-23(a)(2) of the Georgia Code Annotated is a categorical crime of violence. The respondent did not challenge that his conviction was for a categorical crime of violence. (Please see our article about Descamps v. United States, 133 S. Ct. 2276, 570 US __, (2013) to learn about the categorical approach and the modified categorical approach [see article]).

However, the respondent argued that his conviction was not categorically for a crime of domestic violence. In so doing, the respondent argued that the statute he was convicted of violating did not necessitate a qualifying relationship for the conviction to qualify as a crime of domestic violence. However, the Board noted that “the categorical approach does not necessarily apply to all aspects of the determination whether a conviction is for a crime of domestic violence.” Following Supreme Court precedent found in Nijhawan v. Holder, 557 U.S. 29, 33-34 (2009) [PDF version], the Board stated that the categorical approach applies when the “statutory language refers directly to a generic crime” whereas the circumstance-specific approach applies “if the statute contains qualifying language that references the specific circumstances in which a crime was committed.” In short, the question is whether the language of the Georgia statute must necessitate the conclusion that any conviction under the statute is for a crime of domestic violence, or whether the Board may assess the circumstances of the conviction, as in how the crime was committed, in order to determine whether a crime of domestic violence was committed in the specific case.

The Board noted that the issue at hand has not yet been addressed by the Eleventh Circuit. The Fourth Circuit in Hernandez-Zavala v. Lynch, 806 F.3d 259, 266 (4th Cir. 2015) [PDF version] (rendered after the Immigration Judge’s decision in the instant case) and the Fifth Circuit in Bianco v. Holder, 624 F.3d 265, 272-73 (5th Cir. 2010) [PDF version] applied the circumstance-specific approach to section 237(a)(2)(E)(i). The Fourth Circuit cited the Supreme Court decision in United States v. Hayes, 55 U.S. 415 (2009) [PDF version] which held that in order for a conviction to qualify as a “misdemeanor crime of violence,” the domestic nature of the conviction does not necessarily have to be an element of the offense. However, the Ninth Circuit, held in Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) [PDF version] that section 237(a)(2)(E)(i) should be analyzed under the categorical approach. It is worth noting that Tokatly predates both Nijhawan and Hayes.

Under Nijhawan, a circumstance-specific inquiry in the context of ascertaining the domestic nature of an offense involves an investigation of “the relationship between the offender and the victim” (the Board’s description of the ruling). Nijhawan made clear that the circumstance-specific inquiry “is not an invitation to relitigate the conviction itself” beyond determining the relationship between the offender and the victim.

The respondent made two arguments against the Immigration Judge’s application of the circumstance-specific approach.

Firstly, he argued that his conviction for simple battery under Georgia law was not a “crime of domestic violence” because Georgia has a separate simple battery statute (section 16-5-23.1(f) of the Georgia Code Annotated) that punishes “family violence battery.” However, the Board rejected this argument because “the existence of a State statute expressly prohibiting domestic violence” is not “dispositive as to whether a conviction is a crime of violence under section 237(a)(2)(E)(i)…”

Secondly, the respondent argued that even if the Immigration Judge was correct in using the circumstance-specific approach, the evidence in the case was insufficient to establish that the victim had a domestic relationship to the petitioner. However, the Board disagreed again, noting that under the circumstance-specific approach, “all reliable evidence may be considered.” Citing its recent precedent decision in the Matter of Garza-Olivares, 26 I&N Dec. 736 (BIA 2016) [PDF version] [see article], such reliable evidence includes documents which make up the “formal record of conviction” see also Nijhawan and Bianco. Under BIA precedent found in the Matter of Grijalva, 19 I&N Dec. 713, 721-22 (BIA 1988) [PDF version], police reports are admissible and may be considered so long as the respondent’s statements were not made involuntarily or that the information was obtained through police misconduct. The Board noted that two incident reports in the case documented, among other things, the actions giving rise to the conviction, that the respondent and victim shared the same address, and that the crime was being investigated as an incident of family violence.

Ultimately, the Board found that the respondent’s conviction was for a crime of domestic violence as defined in section 237(a)(2)(E)(i).

Conclusion — Analyzing When a Conviction is for a Crime of Domestic Violence

In the Matter of H. Estrada, the BIA has taken the position with regard to section 237(a)(2)(E)(i) that adjudicators may consider “reliable evidence” concerning the relationship between an offender and abuser in order to determine whether a conviction was for a crime of domestic violence. This position broadens the scope of 237(a)(2)(E)(i) by allowing charges under the provision to be pursued against aliens who are convicted under a statute that is not categorically for domestic violence (meaning that any conviction under the statute would necessarily be for domestic violence). The decision does not change any of the underlying rules for section 237(a)(2)(E)(i).

It is worth noting, as we discussed in the article, that Ninth Circuit precedent applies the categorical approach to section 237(a)(2)(E)(i). However, it is unclear in light of the Matter of H. Estrada and the Supreme Court decisions discussed in this article whether the Ninth Circuit will hold to that position.

If an alien finds him or herself charged with removability under section 237(a)(2)(E)(i), he or she should consult with an experienced immigration attorney immediately. Precedent from the Matter of H. Estrada means that Immigration Judges will be able to find an alien removable so long as reliable evidence leads to the conclusion that the alien offender had a domestic relationship with the crime victim.