(A)  Elements.  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 . . . .”[157]   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.”[158]

 

                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. [159]

 

                This ground of deportation therefore has the following elements:

 

(1)           a determination

(2)           by a court

(3)           that issued a protection order enjoining

(4)           a noncitizen[160]

(5)           who after admission

(6)           engaged in conduct

(7)           that violates the position of the protection order

(8)           that protects a person

(9)           against credible threats of violence, repeated harassment, or bodily injury.

 

This ground requires both that the court order issued and the conduct occurred “after admission” to the United States.[161]

 

                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.[162]

 

                The Fifth Circuit held that a Massachusetts conviction of battery,[163] although divisible, was an aggravated felony crime of violence[164] where the conviction “also concerned a violation of a domestic abuse protective order.”[165]  The court apparently assumed it would be impossible to violate a protection order by an unwanted touching, which is sufficient to constitute a violation of the criminal statute. The court also failed to mention whether the record of conviction contained any information regarding the domestic abuse. The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.

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

[158]  Ibid.

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

[160] See § 22.11, supra.

[161] See § 17.4, supra.

[162] Woodby v. INS, 385 U.S. 276 (1966).

[163] Mass. Gen. Laws Ch. 265, § 13A.

[164] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), under 18 U.S.C. § 16(a).

[165] Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006).

BIA

DOMESTIC VIOLENCE " VIOLATION OF PROTECTION ORDER
Matter of Strydom, 25 I. & N. Dec. 507 (BIA May 24, 2011) (Kansas conviction for attempting to make a phone call to his wifes home in violation of the no-contact provision of a temporary protection order, in violation of Kan. Stats. 21-3843(a)(1), triggers deportation under INA 237(a)(2)(E)(ii)), following Szalai v. Holder, 572 F.3d 975, 982 (9th Cir. 2009) (petitioners violation of the 100 yard stay away provision in Oregon Family Abuse Prevention Act restraining order triggers deportation under INA 237(a)(2)(E)(ii)); Alanis-Alvarado v. Holder, 558 F.3d 833, 839-40 (9th Cir. 2009) (injunction against telephoning a domestic partner in the context of a domestic violence protective order involves protection against violence, threats, or harassment, even if it is possible that the [offenders] violative conduct did not independently constitute violence, threats, or harassment[,] since INA 237(a)(2)(E)(ii) only requires a violation of the portion of a protection order that involves protection against credible threats of such conduct.) (internal quotation marks omitted).

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.