Gabriela Rodriguez v. Jeff Sessions

Filing

Filed opinion of the court by Judge Darrow. The petition for review is DENIED. William J. Bauer, Circuit Judge; David F. Hamilton, Circuit Judge and Sara Darrow, District Court Judge. [6885759-1] [6885759] [17-1568]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1568
GABRIELA RODRIGUEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A087-231-137

____________________
ARGUED OCTOBER 23, 2017 — DECIDED NOVEMBER 22, 2017
____________________
Before BAUER and HAMILTON, Circuit Judges, and DARROW,
District Judge.*
DARROW, District Judge. This case presents a question
closely connected with one this Court recently decided: when

*

Of the Central District of Illinois, sitting by designation.

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does a conviction for violating a protective order make a person ineligible for the cancellation of removal proceedings? See
Garcia-Hernandez v. Boente, 847 F.3d 869 (7th Cir. 2017).
Gabriela Rodriguez was placed in removal proceedings—
that is, she was scheduled to be deported—some 10 years after
she entered this country from Mexico without inspection by
United States authorities. She sought cancellation of her removal on the ground that it would cause her five dependent
children, whom she raises alone, exceptional hardship. See 8
U.S.C. § 1229b(b)(1). One of her children is a cancer survivor
who requires routine doctor visits to monitor his remission.
The immigration judge who handled Rodriguez’s case decided that she was statutorily ineligible for cancellation because she had been convicted of violating an order of protection in 2001. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed this decision. Because Rodriguez
is ineligible for cancellation, we agree, and deny the petition
for review.
I.

Factual and Procedural Background

Rodriguez entered the United States without inspection
on January 11, 1999. On February 2, 2000, her boyfriend, Manuel Ramirez, sought a restraining order against her in Dodge
County, Wisconsin, claiming that he feared for his safety after
episodes of domestic violence. The circuit court granted his
request and issued a temporary restraining order pending a
hearing. In a one-page form order, the court indicated that
Ramirez was in imminent danger of physical harm, and ordered that Rodriguez avoid his residence and any personal
contact with him.

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Rodriguez testified before the immigration judge that because she had nowhere else to go, and because she had two
small children and all her belongings in the apartment she
had been sharing with Ramirez, she did not leave. She was
charged by criminal complaint on February 14, 2000, with
knowingly violating a temporary restraining order. Wis. Stat.
§ 813.12(8)(a). The complainant, a police officer, indicated that
Ramirez had met with him on February 5 and said that Rodriguez refused to leave the apartment. Ramirez also told the officer that he and Rodriguez had run into each other on the
street and had an argument. Rodriguez pleaded no contest to
the charge on April 6, 2001, and to a charge of misdemeanor
bail jumping, Wis. Stat. § 946.49(1)(a), which is not at issue in
this appeal.
The Department of Homeland Security charged Rodriguez with removability and began removal proceedings
against her on October 26, 2009, by filing a Notice to Appear
in immigration court. 8 U.S.C. § 1182(a)(6)(A)(i). Rodriguez
conceded the factual allegations contained in the Notice, but
indicated that she would seek cancellation of her removal.
The Attorney General may cancel the removal of an unlawfully admitted alien, or adjust her status to a permanent
resident, if she has met all of several conditions: if she has
been continuously present in the United States for 10 years, 8
U.S.C. § 1229b(b)(1)(A); “has been a person of good moral
character” during that time, id. § 1229b(b)(1)(B); establishes
that removal would cause an “exceptional and extremely unusual hardship” to her child, id. § 1229b(b)(1)(D); and, relevant here, has not been convicted of certain enumerated offenses, id. § 1229b(b)(1)(C), including violation of a protection
order, id. § 1227(a)(2)(E)(ii). Specifically, an alien is not eligible

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for cancellation if, after she has been enjoined under a protection order, a “court determines [that she] 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 … .” Id.
Although the government made more than one argument
opposing cancellation before the immigration judge, the
judge decided that Rodriguez’s conviction for violating the
temporary restraining order in Wisconsin settled the matter,
and rested her decision on that basis alone. The immigration
judge thought that because Wisconsin law requires a judge to
consider the danger posed to a victim and any pattern of abusive conduct by the perpetrator, Wis. Stat. § 813.12(3)(a)(2)(aj),
a misdemeanor conviction for having violated such an order
is “categorically a removable offense,” Imm. J. Order 3, Pet’r
Br. App. B. Rodriguez appealed to the Board of Immigration
Appeals (BIA), which conducted its own review and dismissed the appeal pursuant to a written decision. BIA Decision, Pet’r Br. App. A. The BIA decided that “the ‘avoidance
of residence’ provision is a portion of the TRO related to protecting against future threats of violence, harassment, or bodily injury,” id. at 2, and that since the conviction documents
show Rodriguez violated that portion, she was ineligible for
cancellation.
Rodriguez appealed the dismissal. We have jurisdiction to
consider the appeal, as it presents a question of law. 8 U.S.C.
§ 1252(a). Because the BIA issued its own opinion, we review
that opinion, rather than the immigration judge’s. Sanchez v.
Holder, 757 F.3d 712, 717 (7th Cir. 2014). We review questions
of law de novo. Karroumeh v. Lynch, 820 F.3d 890, 896 (7th Cir.

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2016). Insofar as the BIA carefully and consistently interprets
ambiguous immigration statutes, we apply the principles of
deference enunciated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–44 (1984). MataGuerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010).
II.

Discussion

At moments, the immigration judge, the BIA, and Rodriguez all have seemed to rely on a determination about
whether Wisconsin’s restraining order statute categorically
protects against threats of violence, harassment, or bodily injury. See Pet’r Br. 26 (“The Board failed to recognize that the
overall purpose of the Wisconsin Statute does not necessarily
protect solely against ‘credible threats of violence, repeated
harassment, or bodily injury.’”); BIA Decision 2 (“We agree
with the Immigration Judge that the purpose of Wis. Stat.
§ 813.12(8)(a) … is to protect the victim from future threats of
violence, harassment, or injury, irrespective of what behavior
triggered the violation.”). This is to say that the immigration
judge, the BIA, and Rodriguez perform, at least in part, a categorical analysis of the statute, which, as we explained in Garcia-Hernandez, is neither necessary nor appropriate in cases
that, like this one, concern 8 U.S.C. § 1227(a)(2)(E)(ii). We
therefore think it useful to explain again the holding and reasoning of Garcia-Hernandez.
The Supreme Court has developed an interpretive
method, commonly called the categorical approach, to determine when a person’s prior criminal conviction can be
counted against the person for purposes of statutory sentencing enhancements or determinations of removability. Under
the categorical approach, courts determine whether a person
has sustained a conviction for a particular kind of crime by

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looking to whether the statute of conviction matches the “generic” version of the offense, or, rather, is broader, and could
therefore be committed in a way that would not involve commission of the generic offense. See Taylor v. United States, 495
U.S. 575, 598 (1990). The categorical approach thus directs a
court’s attention to the statute of conviction, rather than to any
other information the court has about what conduct a person
may have actually engaged in to warrant (or not) a criminal
conviction. See Descamps v. United States, 133 S. Ct. 2276, 2287–
88 (2013). The Court has explained that this approach has
three core virtues. First, it respects the text of statutes that are
enhanced or triggered, on their own terms, by convictions under criminal statutes, rather than by participation in any particular prohibited conduct. Mathis v. United States, 136 S. Ct.
2243, 2252 (2016). Second, it respects the requirement of the
Sixth Amendment that only a jury may find facts that increase
a maximum penalty. Id.; see Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). And third, it avoids unfairness to defendants
by directing the focus of later courts only to those elements
that the government was required to prove beyond a reasonable doubt in order to secure a conviction, and which therefore the defendant had incentive to contest at the earlier proceeding. Mathis, 136 S. Ct. at 2253.
As Garcia-Hernandez recognized, the main reason to apply
the categorical approach springs from the first of the considerations the Court identified in Mathis—that the statutory text
itself invokes a “conviction.” See Garcia-Hernandez, 847 F.3d at
871 (“The categorical and modified categorical approaches
are triggered by statutes that spell out consequences for criminal convictions.”) (citing Moncrieffe v. Holder, 569 U.S. 184, 190–
91 (2013)). When a statute does not make itself contingent on
a conviction, the categorical approach is unnecessary, and

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courts should respond to what the statute does depend on.
While many of the conditions that may make an alien deportable, or ineligible for cancellation, are indeed prior convictions, 8 U.S.C. § 1227(a)(2)(E)(ii) does not invoke conviction.
See 8 U.S.C. § 1227(a)(2)(A)(i) (aliens convicted of crimes involving
moral
turpitude
are
deportable);
id.
§ 1227(a)(2)(A)(iii) (aggravated felonies); id. § 1227(a)(2)(B)(i)
(drug crime convictions); id. § 1227(a)(2)(C) (firearm possession convictions). Rather, the text of (E)(ii) depends “on what
a court ‘determines’ about the alien’s conduct.” Garcia-Hernandez, 847 F.3d at 872.
For an alien to be deportable or ineligible for cancellation
under (E)(ii), there must (1) have been a protection order entered against the alien, (2) at least one part of that order must
have involved protection against a credible threat of violence,
and (3) a court must have determined that the alien engaged
in conduct that violated that portion. As explained in GarciaHernandez, the statute asks whether a court has “determined”
that an alien engaged in conduct that violated the restraining
order’s relevant part, not whether the statute under which the
alien was convicted necessarily in all cases, or categorically,
involved such behavior. 847 F.3d at 873. Indeed, a conviction
is not required at all, just a court’s determination (which may,
of course, comprise a conviction). Id. In addition, the first and
second elements identified above do not call for a categorical
approach, either. Rather, they ask: was a protection order issued, and did part of it “involve” protection against a credible
threat of violence? These are questions not about the law—
although the laws that authorized a particular order may be

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instructive—but about the purpose of a given order, and the
purpose of its provisions.1
Breaking (E)(ii) into its elements brings Rodriguez’s case
more clearly into view.
First, the order that restrained Rodriguez was a protection
order. A protection order is “any injunction issued for the purpose of preventing violent or threatening acts of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(ii). The order’s face in this
case makes its purpose plain. It is titled “Notice of Hearing Temporary Restraining Order (Domestic Abuse).” And it indicates expressly that the petitioner, Ramirez, is in imminent
danger of physical harm. Coupled with its stay-away provisions, and the added requirement that the person restrained,
Rodriguez, refrain from acts of domestic abuse, it is obvious
that the order was issued, at least partly, for the purpose of
preventing violent or threatening acts of domestic violence.
Second, the portion of the order requiring that Rodriguez
avoid Ramirez’s residence involves protection against credible threats of violence, repeated harassment, or bodily injury.
The BIA determined that this provision related to protecting
against future threats of violence, and relied on its previous
1

Much confusion appears to have been caused by the distinct but
overlapping requirements of the elements of (E)(ii). Plainly, an order entered for the purpose of preventing violent or threatening acts will likely
have a portion involving protection against a credible threat of violence,
and many violations of such orders will involve the violation of such portions. But not all protective orders issued under a given statute need be
issued for purposes of such protection, or contain portions involving such
protection. Thus, Rodriguez’s argument, Pet’r Br. 25–28, that a person
could manage to obtain a restraining order in Wisconsin absent any acts
involving or threatening violence misses the point.

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determination that the no-contact and stay-away provisions
of restraining orders involve such protection. See In re
Strydom, 25 I. & N. Dec. 507, 510–11 (B.I.A. 2011). As in GarciaHernandez, we agree with the BIA’s interpretation of
§ 1227(a)(2)(E)(ii) on this score.
Third, and uncontestedly, a court determined that Rodriguez engaged in conduct that violated the avoidance-of-residence provision. The criminal complaint alleged that she remained on the premises of Ramirez’s apartment, and she
pleaded no contest to having knowingly violated the domestic abuse order that enjoined that behavior. See Garcia-Hernandez, 847 F.3d at 870, 872–73 (deciding that the state court determined petitioner violated the stay-away portion of a restraining order where he pleaded guilty to violating the order,
and relying on the charging document to determine what behavior the court determined he engaged in). It does not matter
that Rodriguez may not have acted violently by remaining on
the premises; her violation of the avoidance-of-residence provision is enough.
Rodriguez is ineligible for cancellation of removal proceedings. The petition for review is therefore
DENIED.