Immigration adjudicators must use a “circumstance-specific” approach in determining whether a conviction for a crime of violence was committed against a person in a protected relationship to the defendant, ruled the Board of Immigration Appeals on May 27.

The analysis is critical in determining deportability under INA § 237(a)(2)(E)(i). Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016).

In order to establish removability for a crime of domestic violence, the Department of Homeland Security must prove four elements by clear, convincing, and unequivocal evidence:

1. The respondent must have been “convicted.” This is a term of art in immigration law and includes not only a judgment of conviction but also many dispositions called diversions, deferred sentencing agreements, withheld adjudications, etc. INA § 101(a)(48)(A).
2. The respondent must have been convicted of a “crime of violence (as defined in section 16 of title 18, United States Code).” For state law misdemeanors this means that the state criminal statute has “as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” Not every state assault statute requires the necessary use of physical force, and this defense to removal remains available. See Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010).
3. The offense must have been “against a person.” INA § 237(a)(2)(E)(i). A crime of violence under the above definition may be against the property of another, but the statutory language states that a crime of domestic violence must be against a person.
4. The offense must have committed by someone in one of the following relationships to the victim:

a. A current or former spouse

b. An individual with whom the person shares a child in common

c. An individual who is cohabiting with or who has cohabited with the person as a spouse

d. An individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or

e. Any other person who is protected from the individual’s acts under the domestic or family violence laws of the United States or any state, Indian tribal government or unit of local government.

The holding of Matter of H. Estrada means that, under BIA precedent, an immigration adjudicator may use factual evidence, and not just the elements of the state offense, to prove any of the five domestic relationships described by (4), above. Advocates should be aware that many states and localities have domestic and family violence laws that would expand the scope of this ground of removability even further, such as to current or former persons in a dating relationship or current or former roommates.

Under Matter of H. Estrada, DHS could submit a court record that establishes that a respondent accepted a deferred sentencing agreement in which he admitted to an assault against an unnamed victim and argue that this conviction record satisfies elements (1)-(3) above. DHS could then submit a police report showing that the victim of the assault was Person A, and a birth certificate that indicates that the respondent and Person A share a child in common. Such a person would be deportable under INA § 237(a)(2)(E)(i) under the board’s new holding, regardless of the sentence.

For many people seeking affirmative benefits, such as naturalization, Matter of H. Estrada sounds a strong note of caution. Even if a client was placed in a diversionary program, and even if the charge was simple assault and not domestic assault, it is likely that the person is deportable. The danger of removal proceedings in such a situation is all the more likely under current enforcement priorities, which list crimes of domestic violence as significant misdemeanors that justify the pursuit of removal by Immigration and Customs Enforcement.

For those already in removal proceedings, practitioners should consider the following strategies for clients facing a charge of deportability for a crime of domestic violence:

• At least one court of appeals has come to the opposite conclusion, although it is unclear whether the 9^th U.S. Circuit Court of Appeals will continue to adhere to its precedent if the government invoked its authority under National Cable & Telecommunications Assn. v. Brand X Internet Servs., 545 U.S. 967 (2005). Compare Totalky v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (disagreeing with the board’s current approach) with Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) (agreeing with the board’s current approach); Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010) (same); and Hernandez-Zavala v. Lynch, 806 F.3d 259 (4th Cir. 2015) (same). Advocates should preserve the issue of the correctness of Matter of H. Estrada for judicial review.
• Many assault statutes do not require the necessary level of violent physical force, an inquiry that remains bound to the strict, categorical approach.
• There is no crime of domestic violence ground of inadmissibility, and different doctrines govern when a domestic assault is a crime involving moral turpitude. Further, a categorical approach is always used in a moral turpitude analysis. See Matter of Sejas, 24 I&N Dec. 236 (BIA 2007); Matter of Tran, 21 I&N Dec. 291 (BIA 1996). That means that there may be circumstances under which, though deportable, a respondent may nonetheless pursue re-adjustment of status or cancellation of removal for certain permanent residents. Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (explaining that even where a firearms offense triggers removability under INA § 237(a)(2)(C), it does not trigger the stop-time rule because it is not “referred to in section 212(a)(2)”).