(B)  Validity of Court Order.  It may be possible to attack the validity of the court finding that the noncitizen has violated the protective order by collaterally attacking the validity of the protective order on any available grounds.[1206]  While in general, the prosecution need not prove beyond a reasonable doubt, in a federal prosecution for violation of the Child Support Recovery Act,[1207] the facts on which a state court order imposing child support obligations was predicated,[1208] the validity of the state court order may be subject to collateral challenge on due process grounds.[1209]  In holding that the underlying proceeding must have been lawful for federal criminal sanctions to attach, the court raised the possibility that the same reasoning may require allowing the defendant to make a showing that the proceeding underlying the protective order resulted in an invalid order.[1210]

            It is therefore important to examine the particular statutory basis under which the protective order was issued to determine whether the order was issued and served in compliance with the statute.[1211]  For example, disobedience of a court order can be punishable as civil contempt[1212] and as a misdemeanor.[1213]

[1206] See Annot., Child Support Recovery Act, 147 ALR Fed. 1.

[1207] 18 U.S.C. § 228.

[1208] United States v. Johnson, 114 F.3d 476 (4th Cir. 1997), cert. denied, 118 S.Ct. 258 (1997).

[1209] United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996), citing United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (where a determination in an administrative proceeding plays a critical role in a later criminal sanction, there must be some meaningful review of the administrative proceeding).

[1210] See Beier v. City of Lewiston, 354 F.3d 1058  (9th Cir. 2004) (allowing waiver of sovereign immunity against police officer who arrested petitioner for violating a protection order without knowing exact terms of order before making arrest for violation).

[1211] In California, for example, the specific authority for the Emergency Protective Order (EPO) is Calif. Family Code § § 6250-6257.  These orders expire in five days and it is assumed that the alleged victim will have obtained a Temporary Restraining Order (TRO) by the time the EPO expires. A violation of either the EPO or TRO is prosecuted under California Penal Code § 166 as a misdemeanor with a six-month maximum sentence.

[1212] California Code of Civil Procedure § 1209(a)(5); California Family Code § 290.

[1213] California Penal Code § § 166(a)(4), 273.6; California Family Code § 6388.

SAFE HAVENS " DOMESTIC VIOLENCE " VIOLATION OF PROTECTION ORDER
Matter of Strydom, 25 I. & N. Dec. 507 (BIA May 24, 2011) (We recognize that not all aspects of a protection order will trigger section 237(a)(2)(E)(ii). The Ninth Circuit noted that provisions requiring attendance at and payment for a counseling program or requiring the payment of costs for supervision during parenting time will not be covered by section 237(a)(2)(E)(ii).); quoting Szalai v. Holder, 572 F.3d 975, 980 (9th Cir. 2009).

BIA

DOMESTIC VIOLENCE " VIOLATION OF PROTECTION ORDER
Matter of Strydom, 25 I. & N. Dec. 507 (BIA May 24, 2011) (Kansas conviction for violation of a temporary protection order issued pursuant to Kansas Protection from Abuse Act 60-3106, in violation of Kan. Stats. 21-3843(a)(1), does not categorically constitute a deportable offense under section INA 237(a)(2)(E)(ii), because the statute of conviction includes violations of non-DV restraining orders such as Kan. Stat. 60-1607 which pertains to orders involving the disposition of property pending final judgment on a petition for divorce).

SAFE HAVENS " DOMESTIC VIOLENCE " VIOLATION OF PROTECTION ORDER
Matter of Strydom, 25 I. & N. Dec. 507 (BIA May 24, 2011) (We recognize that not all aspects of a protection order will trigger section 237(a)(2)(E)(ii). The Ninth Circuit noted that provisions requiring attendance at and payment for a counseling program or requiring the payment of costs for supervision during parenting time will not be covered by section 237(a)(2)(E)(ii).); quoting Szalai v. Holder, 572 F.3d 975, 980 (9th Cir. 2009).