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Garcia-Hernandez v. Boente

United States Court of Appeals, Seventh Circuit

February 7, 2017

Martin Garcia-Hernandez, Petitioner,
v.
Dana J. Boente, Acting Attorney General of the United States, Respondent.

          Argued April 26, 2016

         Petition for Review of an Order of the Board of Immigration Appeals No. A089-283-449

          Before Kanne, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         This case lies at the intersection of immigration law and legal measures to prevent domestic violence. Even if a state court does not impose severe punishment for an alien's violation of a domestic protective order, the immigration consequences may be severe, as in this case.

         Petitioner Martin Garcia-Hernandez, a citizen of Mexico, sought cancellation of removal, arguing that his removal would cause exceptional and extremely unusual hardship for his U.S.-citizen children. See 8 U.S.C. § 1229b(b)(1). An immigration judge concluded that he was statutorily ineligible for this discretionary form of relief because of a 2010 conviction for violating a domestic protection order in Illinois. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed. On judicial review, we agree that Garcia-Hernandez's conviction renders him ineligible for the relief he seeks. We deny the petition for review.

         I. Factual and Procedural Background

         Garcia-Hernandez entered the United States from Mexico without inspection in 2000. In February 2010, Sara Talavera, the mother of two of Garcia-Hernandez's children, obtained an emergency court order of protection against him after having moved out of the home they shared. The protection order was soon extended to be effective for one year.

         About a month later, Garcia-Hernandez was charged under 720 ILCS 5/12-3.4 (formerly 720 ILCS 5/12-30) with violating the protection order by "confronting the complainant [Talavera] at the protected address and harassing her" and with violating the provision in the protection order requiring him to stay away from Talavera, her children, and their residence whenever any of them was present. Garcia-Hernandez pled guilty. He was sentenced to twelve months of supervision and participation in a domestic-violence clinic.

         Shortly after his conviction, Garcia-Hernandez was placed in removal proceedings and charged as inadmissible for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Garcia-Hernandez conceded that he was removable but said he intended to seek cancellation of removal for nonpermanent residents because of the hardship his children will face if he is removed. 8 U.S.C. § 1229b(b).

         Removal may be cancelled under § 1229b(b)(1) if an alien has been physically present in the United States for ten years, has been a person of good moral character during those years, and establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a U.S. citizen or lawful permanent resident. There is one other requirement under § 1229b(b)(1): the alien may not have been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3).

         The relevant provision here is § 1227(a)(2), which sets forth numerous provisions for crimes that will render an alien both removable and ineligible for discretionary cancellation of removal. The legal issue for the immigration judge, the Board, and now us is whether Garcia-Hernandez's conviction for violating the protection order makes him legally ineligible for cancellation of removal under the terms of § 1227(a)(2)(E)(ii). That provision makes removable any alien who a 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." The immigration judge determined that Garcia-Hernandez's offense qualified under (E)(ii) because the charging document to which he pled guilty said that he had harassed Talavera and violated the injunction to stay away from her. There is no doubt here that the protection order qualifies under (E)(ii) or that Garcia-Hernandez was the person enjoined by that order.

         On appeal to the Board of Immigration Appeals, Garcia-Hernandez argued that § 1227(a)(2)(E)(ii) did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury. In his view, he had failed to comply only with the protection order's stay-away provision. The Board upheld the judge's decision, adding that § 1227(a)(2)(E)(ii) is not limited to cases involving actual harassment ...


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