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Rodriguez v. Sessions

United States Court of Appeals, Seventh Circuit

November 22, 2017

Gabriela Rodriguez, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued October 23, 2017

         Petition for Review of an Order of the Board of Immigration Appeals No. A087-231-137

          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 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.

         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 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. 2016). Insofar as the BIA carefully and consistently interprets ambiguous immigration statutes, we apply the principles of deference enunciated in Chevron, ...

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