The Board of Immigration Appeals recently issued an important decision that should be of interest to any individual charged with domestic violence, contempt of court, and violating a restraining order in NJ. One common New Jersey statute implicated includes NJSA 2C:29-9b. In Matter of Medina-Jimenez, 27 I & N Dec. 399 (BIA 2018), the court held that the categorical approach does not apply when considering whether violating a restraining order disqualifies a person from applying for cancellation of removal, one of the most sought-after forms of relief in immigration court. Instead, an Immigration Judge is allowed to consider any probative and reliable evidence in connection with what the prosecuting authority has found about the individual’s violation. The court must only find two things: one, that the offense resulted in a conviction under INA 101(a)(48)(A); and two, whether the State court that heard the matter determined that “the alien 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 ordered was issued.” In short, the court need not engage in a strict categorical analysis to determine whether the elements of the offense in question match the federal rubric under INA 240A(b)(1)(C). As long as the immigration court is reasonably satisfied that there was a finding or admission of guilt along with some measure of punishment, and the “conviction” was based on conduct that violated a restraining order, the individual will not be eligible for cancellation of removal. What the court is essentially saying is that since the deportability section regarding restraining orders does not require a conviction, it would not make sense to require a conviction for cancellation of removal purposes.
In the case at hand, the respondent had initially pled guilty to contempt of court for violating a protection order. While in immigration court, the judge denied his application for cancellation of removal after determining that he was convicted of an offense under INA 237(a)(2)(E)(ii), which rendered him ineligible under INA 240A(b)(1)(C), which states that an alien does not qualify for cancellation of removal if “convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3). The respondent was subsequently able to amend his conviction to a “General Judgment of Contempt”-thus prompting the litigation. Unfortunately, for Mr. Mendez-Jimenez, the BIA ruled against him, following the logic as discussed above.
The ruling, however, affects more than just Mr. Mendez-Jimenez. This is a very broad, elastic reading of language that vitiates, in practice, the categorical approach–the gold standard which the Supreme Court reaffirmed in several court cases over the last two years. In practical terms, this can potentially affect individuals who a different court has determined has violated a restraining order, even if the person is not technically convicted of a restraining order violation. Now more than ever, it is critical that a person charged with domestic violence or contempt of court not only find a qualified criminal defense attorney but also consult with an immigration lawyer to assess any adverse consequences. Even contempt of court, which may be considered a relatively minor offense, can have potentially devastating immigration ramifications.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.