The statute provides for removal where a civil or criminal court has determined that a noncitizen “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 . . . .”[1203]   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.”[1204]

 

            The deportation ground provides:

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 pendente lite order in another proceeding. [1205]

 

            This ground of deportation therefore has the following elements:

 

            (1)  a determination

            (2)  by a court

            (3)  that issued a protection order

            (4)  that enjoined a noncitizen

            (5)  that the noncitizen engaged in conduct that violates

            (6)  the portion of the protection order

            (7)  that protects a person against credible threats of violence, repeated harassment, or bodily injury.

 

            If the government is unable to prove by clear and convincing evidence that every element of this ground of deportation is true, the noncitizen is not deportable under this ground.  See generally N. Tooby, Criminal Defense of Immigrants § 8.14 (2003).

[1203] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

[1204] Ibid.

[1205] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

BIA

DOMESTIC VIOLENCE - DOMESTIC BATTERY -- CALIFORNIA CONVICTION UNDER PENAL CODE 242, 243(E)(1) NOT CATEGORICALLY A COV AND THUS NOT A DV OFFENSE WITHIN THE NINTH CIRCUIT
Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (California conviction for domestic battery in violation of Penal Code 242 and 243(e)(1) does not qualify categorically as a conviction for a "crime of violence" within the meaning of 18 U.S.C. 16(a) or (b), and is thus not a "crime of domestic violence" under INA 237(a)(2)(E)(i)), following Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

Ninth Circuit

DOMESTIC VIOLENCE - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___ , 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not categorically involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), since the offense of conviction does not necessarily require a "violent use of force").

DOMESTIC VIOLENCE - CRIME OF VIOLENCE - ABUSE OF FAMILY OR HOUSEHOLD MEMBER
United States v. Nobriga, ___ F.3d ___, 2006 WL 3821413 (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes 709-906(1), did not involve the "violent use of force," as required under Armed Career Criminal Act, 18 U.S.C. 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness).

DOMESTIC VIOLENCE - INTENT REQUIREMENT - RECKLESS BUT UNINTENTIONAL MENS REA INSUFFICIENT TO CONSTITUTE CRIME OF DOMESTIC VIOLENCE
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. Oct. 26, 2006) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1) ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another).

Tenth Circuit

DOMESTIC VIOLENCE " NO CONTACT ORDER
Cespedes v. Lynch, 805 F.3d 1274 (10th Cir. Nov. 19, 2015) (any violation of a protection order will trigger 8 U.S.C. 1227(a)(2)(E)(ii), INA 237(a)(2)(E)(ii)), agreeing with Matter of Strydom, 25 I. & N. Dec. 507, 510 (2011).

Other

DOMESTIC VIOLENCE"DEPORTATION GROUND"PROTECTION ORDER VIOLATION"DEFENSES
Congress limited the deportation ground triggered by a court finding of a violation of a domestic violation protective order, under INA 237(a)(2)(E)(ii), 8 U.S.C. 1227(a)(2)(E)(ii), to protective orders against "credible threats of violence, repeated harassment [etc.]," as opposed to just protective orders against "threats of violence and harassment. (Emphasis added.) This certainly implies that the person must have been found in violation of the portion of a protective order that protects against credible threats, and does not apply unless the protection order specifically does so. Thanks to David Antn Armendriz.