The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decisions in Matter of Medina-Jimenez and Matter of Obshatko and concluded that the categorical approach does not apply to the analysis of whether a conviction related to violating a protective order disqualifies an applicant from cancellation of removal for non-lawful permanent residents. “The presence of the word ‘convicted’ in § 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii), renders the statutory language ambiguous regarding whether the categorical approach applies to determining whether an alien is removable under § 1229b(b)(1)(C) for violating a protection order under § 1227(a)(2)(E)(ii).” “The BIA’s two-step inquiry for determining whether an alien is ineligible for cancellation of removal based on a violation of a protection order is consistent with the statutory language and is a reasonable interpretation: whether the alien has been ‘convicted’ as defined by § 1101(a)(48)(A); and whether a state court found that the alien’s ‘offense’ involves conduct described under § 1227(a)(2)(E)(ii).”
The Ninth Circuit also agreed with the BIA that a state’s labeling of an offense as a conviction is not determinative as to whether the offense qualifies as a conviction under the immigration laws, so long as the underlying proceeding is criminal in nature. “The proceeding should at the very least comply with basic notions of procedural due process—e.g., notice and opportunity to be heard in front of an impartial tribunal.” Thus, a violation of an Oregon restraining order under the Family Abuse Prevention Act, though not considered a crime under Oregon law, meets the definition of a conviction for immigration purposes.
The full text of Diaz-Quirazco v. Barr can be found here: