Garcia-Hernandez v. Boente

• Decision Date: 07 February 2017
• Docket Number: No. 15–2835,15–2835
• Citation: 847 F.3d 869
• Parties: Martin GARCIA–HERNANDEZ, Petitioner, v. Dana J. BOENTE, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

847 F.3d 869

Martin GARCIA–HERNANDEZ, Petitioner,

v.Dana J. BOENTE, Acting Attorney General of the United States, Respondent.

No. 15–2835

United States Court of Appeals, Seventh Circuit.

Argued April 26, 2016

Decided February 7, 2017

Andrea M. Duron, Attorney, Duron Law Firm, PC, Chicago, IL, for Petitioner.

OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Tim Ramnitz, Attorney, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent.

Before Kanne, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

This case lies at the intersection of immigration law and legal measures to prevent domestic violence. Even if a state court does not impose severe punishment for an alien's violation of a domestic protective order, the immigration consequences may be severe, as in this case.

Petitioner Martin Garcia–Hernandez, a citizen of Mexico, sought cancellation of removal, arguing that his removal would cause exceptional and extremely unusual hardship for his U.S.-citizen children. See 8 U.S.C. § 1229b(b)(1). An immigration judge concluded that he was statutorily ineligible for this discretionary form of relief because of a 2010 conviction for violating a domestic protection order in Illinois. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed. On judicial review, we agree that Garcia–Hernandez's conviction renders him ineligible for the relief he seeks. We deny the petition for review.

I. Factual and Procedural Background

Garcia–Hernandez entered the United States from Mexico without inspection in 2000. In February 2010, Sara Talavera, the mother of two of Garcia–Hernandez's children, obtained an emergency court order of protection against him after having moved out of the home they shared. The protection order was soon extended to be effective for one year.

About a month later, Garcia–Hernandez was charged under 720 ILCS 5/12–3.4 (formerly 720 ILCS 5/12–30 ) with violating the protection order by "confronting the complainant [Talavera] at the protected address and harassing her" and with violating the provision in the protection order requiring him to stay away from Talavera, her children, and their residence whenever any of them was present. Garcia–Hernandez pled guilty. He was sentenced to twelve months of supervision and participation in a domestic-violence clinic.

Shortly after his conviction, Garcia–Hernandez was placed in removal proceedings and charged as inadmissible for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Garcia–Hernandez conceded that he was removable but said he intended to seek cancellation of removal for nonpermanent residents because of the hardship his children will face if he is removed. 8 U.S.C. § 1229b(b).

Removal may be cancelled under § 1229b(b)(1) if an alien has been physically present in the United States for ten years, has been a person of good moral character during those years, and establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a U.S. citizen or lawful permanent resident. There is one other requirement under § 1229b(b)(1) : the alien may not have been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3).

The relevant provision here is § 1227(a)(2), which sets forth numerous provisions for crimes that will render an alien both removable and ineligible for discretionary cancellation of removal. The legal issue for the immigration judge, the Board, and now us is whether Garcia–Hernandez's conviction for violating the protection order makes him legally ineligible for cancellation of removal under the terms of § 1227(a)(2)(E)(ii). That provision makes 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 determined that Garcia–Hernandez's offense qualified under (E)(ii) because the charging document to which he pled guilty said that he had harassed Talavera and violated the injunction to stay away from her. There is no doubt here that the protection order qualifies under (E)(ii) or that Garcia–Hernandez was the person enjoined by that order.

On appeal to the Board of Immigration Appeals, Garcia–Hernandez argued that § 1227(a)(2)(E)(ii) did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury. In his view, he had failed to comply only with the protection order's stay-away provision. The Board upheld the judge's decision, adding that § 1227(a)(2)(E)(ii) is not limited to cases involving actual harassment or threats but also extends to violations of provisions meant to prevent those behaviors, such as no-contact or stay-away provisions.

II. Analysis

A. Categorical Approach and Modified Categorical Approach

To determine whether an alien's prior criminal conviction qualifies as a removable offense under 8 U.S.C. § 1227(a)(2), courts apply the "categorical approach" or "modified categorical approach," first adopted for domestic criminal law in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The categorical and modified categorical approaches are triggered by statutes that spell out consequences for criminal convictions . See Moncrieffe v. Holder , 569 U.S. ––––, 133 S.Ct. 1678, 1684–85, 185 L.Ed.2d 727 (2013) ("conviction" is the "relevant statutory hook" for applying categorical approach); cf. Nijhawan v. Holder , 557 U.S. 29, 39–40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (declining to apply categorical approach to loss element for crimes of fraud and deceit that involved losses of more than $10,000 under "aggravated felony" provision of immigration statute, 8 U.S.C. § 1101(a)(43)(M)(i) ).

Section 1227(a)(2) spells out numerous categories of criminal offenses that will render an alien removable. All but three of those provisions are framed in terms of criminal convictions. The three exceptions are § 1227(a)(2)(B)(ii), which applies to "Any alien who is, or at any time after admission has been, a drug abuser or addict," § 1227(a)(2)(F), which applies to aliens involved in human trafficking, and the provision at issue here, § 1227(a)(2)(E)(ii), which applies to those who violate protection orders. The full text of (E)(ii) provides:

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom [sic] 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 pendente lite order in another proceeding.

Much of the legal argument in this case has focused on whether the Illinois statute and charges to which Garcia–Hernandez pled guilty "categorically" involved violation of a portion of the protection order that involved "protection against credible threats of violence, repeated harassment, or bodily injury," or whether the modified categorical approach might apply. At the time of oral argument, the statute appeared to be divisible, so that the modified categorical approach would apply. The Supreme Court's later decision in Mathis v. United States , 579 U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), narrowed the field of statutes that can be deemed divisible, so we have taken a fresh look at the overall issue.

The text of (E)(ii) does not depend on a criminal conviction but on what a court "determines" about the alien's conduct. Based on that significant textual difference between (E)(ii) and other provisions, we find that neither the categorical approach nor the modified categorical approach controls this case. What matters is simply what the state court "determined" about Garcia–Hernandez's violation of the protection order.

The key language, "the court determines," does not require a conviction of a particular kind or the categorical approach at all. What matters is what the court "determines." Section 1227(a)(2)(E)(ii) makes clear 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). Given the reference to a "conviction" in § 1229b(b)(1), we assume that a criminal conviction is needed, but the focus on what the court "determines" points, as in Nijh...