Alvarez v. Garland ( 2022 )

22-6021
Alvarez v. Garland
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 22-6021
CARLOS ANIBAL ALVAREZ,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
__________
SUBMITTED: MARCH 22, 2022
DECIDED: MAY 5, 2022
__________
Before: CABRANES, RAGGI, and CARNEY, Circuit Judges.
________________
Petitioner Carlos Anibal Alvarez, who challenges an order of
removal based on his violation of a court protection order, see 8 U.S.C.
§ 1227(a)(2)(E)(ii), moves for leave to proceed in forma pauperis,
appointment of counsel, and a stay of removal. Respondent, in turn,
moves to expedite the petition. Petitioner’s in forma pauperis motion
requires us to consider whether his claim of agency error in failing to
apply a modified categorical approach to removal pursuant to
§ 1227(a)(2)(E)(ii) has an arguable basis in law or fact. Because we
conclude that it does not, we are compelled to dismiss his petition
pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i). In explaining that conclusion,
we reiterate in this published opinion what we have previously
deemed sufficiently clear to state summarily, i.e., that an immigration
court’s removal determination pursuant to § 1227(a)(2)(E)(ii) is not
made by reference to a “categorical” or “modified categorical”
standard but, rather, by a circumstance-specific assessment of the
particular protection order to which the alien was subject and a
court’s finding that the alien violated that order.
PETITION FOR REVIEW DISMISSED, AND ALL MOTIONS DENIED AS MOOT.
CARLOS ANIBAL ALVAREZ, pro se, Batavia,
New York (Robert F. Graziano, on
Petitioner’s reply brief in further support of
motion to proceed in forma pauperis, Niagara
Falls, New York), for Petitioner.
RODOLFO D. SAENZ, Trial Attorney (Zoe J.
Heller, Senior Litigation Counsel, on the
brief), for Brian M. Boynton, Acting Assistant
Attorney General, Civil Division, United
States Department of Justice, Washington,
D.C.
REENA RAGGI, Circuit Judge:
Carlos Anibal Alvarez, a Dominican national and lawful
permanent resident of the United States, petitions for review of a
Board of Immigration Appeals (“BIA”) decision upholding an
Immigration Judge’s (“IJ”) ruling (1) ordering Alvarez’s removal
2
from this country for violating a court protection order, see 8 U.S.C.
§ 1227(a)(2)(E)(ii); and (2) denying him discretionary relief from
deportation, see id. § 1229b(a). See In re Carlos Anibal Alvarez, No. A
038 919 528 (B.I.A. Dec. 29, 2021), aff’g No. A 038 919 528 (Immig. Ct.
Batavia, N.Y. Aug. 6, 2021). Now before the court are Alvarez’s
motions for leave to pursue his petition in forma pauperis, appointment
of counsel, and a stay of removal, as well as respondent’s motion to
expedite the petition.
In reviewing an in forma pauperis motion, a court first considers
whether the claims being pursued have an arguable basis in law or
fact because, if they do not, the court must not simply deny the
motion; it must dismiss the appeal or petition for review as frivolous.
See 28 U.S.C. § 1915(e)(2)(B)(i). Upon such review here, we conclude
that Alvarez’s petition has no arguable basis in law or fact. Insofar as
he asserts error in the agency’s failure to employ a “modified
categorical” 1 standard to determine his removability under
§ 1227(a)(2)(E)(ii), that argument is precluded by the plain language
of the statute, as well as by decisions from the Supreme Court, this
court, and other courts of appeals. Thus, in this published opinion,
we reiterate that which we have previously thought sufficiently clear
to say summarily: removability pursuant to § 1227(a)(2)(E)(ii) is not
determined by a categorical, or even modified categorical, standard,
but by a circumstance-specific assessment of the protection order to
which the alien was subject and of a court’s (usually a state court’s)
1 See infra at 20–21 (discussing the “categorical” and “modified categorical”
standards).
3
particular finding that the alien violated that order. 2 We conclude that
Alvarez’s remaining challenges to removal similarly lack an arguable
basis in fact or law and, accordingly, we dismiss his petition and deny
the parties’ motions as moot.
BACKGROUND
On May 3, 1984, Alvarez, a then-16 year old native and citizen
of the Dominican Republic, entered the United States at Puerto Rico.
While in this country, he has generally lived in the New York area
and most frequently been employed as an auto mechanic. He has,
from time to time, abused controlled substances. Alvarez has married
twice and maintained three non-marital relationships, by which he
has, in total, five children.
One of Alvarez’s non-marital relationships was with Angela
Escolastico, who, on several occasions, accused Alvarez of assault,
leading to various arrests, convictions, and the entry of New York
court protection orders. Alvarez’s violation of one of those orders,
issued in 2001, is the basis for the removal decision that he now
petitions this court to review. Accordingly, we begin by summarizing
facts pertinent to the entry of that 2001 protection order and to its
violation, as well as to Alvarez’s ensuing criminal history. We then
proceed to detail Alvarez’s immigration proceedings.
2 See Garcia v. Wilkinson, 847 F. App’x 50 (2d Cir. 2021) (discussed infra at 31).
4
I. Alvarez’s Violation of the 2001 Protection Order
A. Events Leading to Entry of the 2001 Order
The 2001 protection order here at issue was entered following
Alvarez’s guilty plea and conviction that year for first-degree
contempt of court. See N.Y. Penal L. § 215.51.3 That contempt was
3 New York first-degree contempt is a divisible crime, subdivision (b) of which
makes a person guilty when, “in violation of . . . an order of protection issued by
a court of competent jurisdiction in this or another state,” the person
(i) intentionally places or attempts to place a person for whose
protection such order was issued in reasonable fear of
physical injury, serious physical injury or death by
displaying a deadly weapon, dangerous instrument or what
appears to be a pistol, revolver, rifle, shotgun, machine gun
or other firearm or by means of a threat or threats; or
(ii) intentionally places or attempts to place a person for whose
protection such order was issued in reasonable fear of
physical injury, serious physical injury or death by
repeatedly following such person or engaging in a course of
conduct or repeatedly committing acts over a period of
time; or
(iii) intentionally places or attempts to place a person for whose
protection such order was issued in reasonable fear of
physical injury, serious physical injury or death when he or
she communicates or causes a communication to be
initiated with such person by mechanical or electronic
means or otherwise, anonymously or otherwise, by
telephone, or by telegraph, mail or any other form of written
communication; or
(iv) with intent to harass, annoy, threaten or alarm a person for
whose protection such order was issued, repeatedly makes
telephone calls to such person, whether or not a
5
evidenced by Alvarez’s 2001 violation of an earlier, 1999 protection
order that had required Alvarez to refrain from, inter alia, assaulting
Ms. Escolastico. 4 In a sworn affidavit to support Alvarez’s 2001 arrest
for assault, a New York City police officer stated that Ms. Escolastico
had reported that, on May 19, 2001, Alvarez came to her apartment,
“(i) punched [her] numerous times on the head and arm, (ii) grabbed
[her] and slammed her on the floor, (iii) . . . threatened to throw her
out of the window, (iv) . . . put a cable cord around [her] neck and
choked her,” and (v) threatened to kill her. Admin. R. 833–34. Ms.
Escolastico further told the officer that, on May 25, 2001, Alvarez had
“forced his way” into her apartment and threatened “to kill her if she
called the police.” Id.conversation ensues, with no purpose of legitimate
communication; or
(v) with intent to harass, annoy, threaten or alarm a person for
whose protection such order was issued, strikes, shoves,
kicks or otherwise subjects such other person to physical
contact or attempts or threatens to do the same; or
(vi) by physical menace, intentionally places or attempts to
place a person for whose protection such order was issued
in reasonable fear of death, imminent serious physical
injury or physical injury.
N.Y. Penal L. § 215.51(b).
4 The 1999 protection order was entered after Alvarez’s arrest that year for third-
degree assault of Ms. Escolastico. See N.Y. Penal L. § 120.00. The record does not
contain the 1999 protection order. What it does show is that Alvarez’s 1999 assault
charge, and an unrelated 1999 charge for third-degree possession of a forged
instrument, see id. § 170.20, were dismissed on October 17, 2001, following his 2001
contempt conviction.
6
When interviewed about these events in 2001 for a pre-sentence
report, Alvarez claimed that his actions had been “misrepresented”
and that he had only tried “to speak” with Ms. Escolastico “in order
to reconcile.” Id. at 1471–72. 5 The state probation department
nevertheless reported “a severe case of domestic violence,” in which
Alvarez failed to “take full responsibility for his actions,” and
recommended some term of incarceration. Id. at 1476.
On September 20, 2001, a New York State court sentenced
Alvarez to six months’ imprisonment and five years’ probation for his
contempt of the 1999 protection order. Two weeks later, on October
5, 2001, the court issued another protection order, to remain in effect
for five years, i.e., until October 4, 2006. See N.Y. Crim. Proc. § 530.12.
That 2001 order, which is here at issue, prohibited Alvarez, directly
or through any third party, from having “contact of any kind
whatsoever” with Ms. Escolastico. Admin. R. 134. Specifically,
Alvarez was ordered (1) to “[s]tay away” from Ms. Escolastico’s
person, as well as from her home, school, business, or place of
employment; (2) to “[r]efrain from communication” with Ms.
Escolastico, whether “by mail or by telephone, e-mail, voice-mail or
other electronic means”; and (3) to “[r]efrain from assault, stalking,
harassment, menacing, reckless endangerment, disorderly conduct,
intimidation, threats, or any criminal offense against” Ms. Escolastico.
Id.5In testifying before the IJ about his 2001 arrest, Alvarez acknowledged having
“hit [Ms. Escolastico] with [his] hand on her face” and having pushed or shaken
her, id. at 445–46, though elsewhere he would characterize his conduct as “verbal
violence,” id. at 727–28.
7
B. Alvarez’s Contempt Conviction for Violating the 2001
Order
Within months of Alvarez’s release from prison, and while he
was on probation for his first contempt conviction, he violated the
2001 protection order. A seven-count indictment, returned on August
5, 2002, charged that on or about and between April 20, 2002, and June
8, 2002, Alvarez engaged in conduct toward Ms. Escolastico
constituting aggravated, first-degree, and second-degree contempt of
court, as well as third-degree assault and stalking. See N.Y. Penal L.
§§ 120.00, 120.50, 215.50, 215.51(b)(ii), 215.51(b)(v), 215.52. 6 On
October 8, 2002, Alvarez pleaded guilty to Count Two in satisfaction
of the indictment. See Admin. R. 1448. Count Two charged him with
first-degree contempt in violation of § 215.51(b)(v), 7 insofar as,
on or about June 8, 2002, . . . with intent to harass, annoy,
threaten and alarm Angela Escolastico, for whose
protection the order was issued, [Alvarez] struck,
shoved, and otherwise subjected Angela Escolastico to
physical contact and attempted and threatened to do the
same.
Id. at 1451.
On November 1, 2002, the court sentenced Alvarez to a term of
18-months-to-3-years’ incarceration for this contempt.
6The aggravated contempt and third-degree assault counts both charged Alvarez
with causing Ms. Escolastico actual physical injury—intentionally or recklessly for
purposes of aggravated contempt, see id. § 215.52(1), and intentionally for purposes
of third-degree assault, see id. § 120.00(1).
7 Quoted supra at 5 n.3.
8
II. Alvarez’s Subsequent Arrests and Convictions
In the years after Alvarez’s release from prison on his second
contempt conviction, he was arrested several times. Because these
arrests were considered by the immigration court in denying Alvarez
discretionary relief from removal, we briefly summarize the charges
and their resolutions. Except as noted, the underlying facts are not
part of the record before us.
In June 2005, Alvarez was arrested for and pleaded guilty to
disorderly conduct, see N.Y. Penal L. § 240.20, and sentenced to time
served.
In November 2007, Alvarez was arrested for second-degree
menacing, id. § 120.14; second-degree reckless endangerment, id.
§ 120.20; and fourth-degree criminal possession of a weapon, id.
§ 265.01, based on conduct toward his then-sister-in-law. In
satisfaction of these charges, Alvarez pleaded guilty to and was
convicted of second-degree harassment, id. § 240.26; was sentenced to
15 days’ imprisonment; and consented to the entry of a two-year
protection order for the victim.
Finally, in May 2010, Alvarez, together with others, was
arrested for first-degree robbery, id. § 160.15, and related charges. At
a 2015 retrial following a mistrial, Alvarez was found guilty and
sentenced to 12 years’ imprisonment.8 Alvarez served this term in
8 According to Alvarez’s pre-sentence report, on May 15, 2010, the defendants
followed a target car and, when it stopped, approached the vehicle. After entering
the vehicle, Alvarez directed the operator, at knifepoint, to start driving. When
the driver refused, Alvarez grabbed a bookbag (containing a laptop computer and
9
New York State custody until November 13, 2020, when he was
transferred to Immigration and Customs Enforcement (“ICE”)
custody. On October 19, 2021, while Alvarez was in ICE custody, the
New York Appellate Division, First Department, reversed his robbery
conviction upon finding that he had not requested or consented to a
mistrial without prejudice. See People v. Lantigua, 198 A.D.3d 514, 514
(1st Dep’t 2021) (“Double jeopardy bars a retrial except as to a
defendant who has requested or consented to the mistrial.”).
III. Alvarez’s Immigration Proceedings
In part because of the time required to resolve the referenced
robbery charge, it took immigration authorities more than fifteen
years to render the removal decision that Alvarez now petitions this
court to review. We summarize these immigration proceedings only
as necessary to explain our decision to dismiss Alvarez’s petition and
to deny his various motions as moot.
Initiation of Removal Proceedings and Concession of
Removability
In July 2006, the Department of Homeland Security (“DHS”)
charged Alvarez with removability under Section 237(a)(2)(E)(ii) of
a camera) from the car and fled the scene with his confederates. When police
stopped the defendants’ car, they recovered from therein a knife and the bag taken
from the victims’ car.
Before the IJ, Alvarez disputed these events, insisting that he had been involved
in a hit-and-run accident, that the driver of the other car was drunk and on drugs,
and that the police falsely accused him of robbery because of his criminal history.
10
the Immigration and Nationality Act (“INA”). 9 That section renders
statutorily eligible for removal an alien who, while admitted to the
United States,
is enjoined under a protection order issued by a court
and whom the 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 . . .
for whom the protection order was issued.
8 U.S.C. § 1227(a)(2)(E)(ii). The notice to appear on this charge
identified Alvarez’s November 2002 New York State conviction for
first-degree criminal contempt as the ground for removal.
Alvarez first appeared before an IJ in March 2008, at which time
his removal hearing was continued to afford him time to secure
counsel. 10 When Alvarez next appeared before the IJ in May 2008, he
was assisted not by an attorney but by a Department of Justice
accredited representative, Reverend Robert Vitaglione. 11 On May 29,
2008, Rev. Vitaglione conceded Alvarez’s removability under
§ 1227(a)(2)(E)(ii), specifically admitting, inter alia, that on November
1, 2002, a New York court had found that, while Alvarez was enjoined
under a protection order entered by a competent New York court, he
had engaged in conduct violating a portion of the order involving
9 Throughout this opinion, we refer to the statute as codified at 8 U.S.C.
§ 1227(a)(2)(E)(ii), rather than by its INA section number.
10Although the notice to appear is dated July 19, 2006, it appears not to have been
served on Alvarez until March 19, 2008.
11See 8 C.F.R. § 1292.12 (providing for accreditation of non-attorneys to represent
clients before immigration courts).
11
protection against credible threats of violence, repeated harassment,
or bodily injury to the person for whom the protection order was
issued.
Applications for Cancellation of Removal and to
Challenge Removability
By the time Alvarez next appeared before the IJ in September
2008, he had discharged Rev. Vitaglione and retained an attorney
who, soon after, filed an application for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a). 12 The application was still pending in
May 2010 when Alvarez was arrested for robbery, after which his
immigration case was administratively closed for a decade.
Upon reopening of his immigration proceedings in October
2020, Alvarez, through new counsel, for the first time sought to
challenge his removability under § 1227(a)(2)(E)(ii) and to withdraw
his previous concession. The IJ orally denied Alvarez’s request, and,
on January 6, 2021, after hearing testimony from Alvarez and various
supporters, also denied his application for cancellation of removal.
See In re Carlos Anibal Alvarez, No. A 038 919 528 (Immig. Ct. Batavia,
N.Y. Jan. 6, 2021). Specifically, the IJ found Alvarez statutorily
ineligible for cancellation in light of his 2015 conviction for robbery,
12Under § 1229b(a), a legal permanent resident may be eligible for cancellation of
removal if he “(1) has been an alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United States continuously for 7 years
after having been admitted in any status, and (3) has not been convicted of any
aggravated felony.”
12
an aggravated felony. 13 Moreover, the IJ observed that, even if
Alvarez were eligible, cancellation would appropriately be denied as
an exercise of discretion.
First Appeal to BIA
On appeal to the BIA, Alvarez, through counsel, argued that
the IJ had erred in accepting (and, later, not allowing him to
withdraw) his concession of removability because (1) Rev. Vitaglione
had been ineffective in making such a concession on his behalf; 14 and
(2) the record was devoid of any document that, under the categorical
approach, would permit a conclusion that clear and convincing
evidence established his removability under § 1227(a)(2)(E)(ii).
Alvarez further argued that (3) the IJ’s assessment of removability did
not comport with the framework established by the BIA in its
intervening decision in Matter of Obshatko, 27 I. & N. Dec. 173, 176–77
(B.I.A. 2017) (stating that “Immigration Judge should decide
(1) whether a State court ‘determine[d]’ that the alien ‘has engaged in
conduct that violates the portion of a protection order that involve[d]
13 Relying on Matter of J.M. Acosta, 27 I. & N. Dec. 420 (B.I.A. 2018), the IJ
determined that Alvarez’s robbery conviction was final for immigration purposes,
notwithstanding a pending appeal. That conclusion has since been undermined
by this court’s holding in Brathwaite v. Garland, 3 F.4th 542, 555 (2d Cir. 2021)
(rejecting J.M. Acosta interpretation of finality requirement as unreasonable), as the
agency acknowledged in its later review of Alvarez’s removability, discussed infra
at 15 & n.15.
14The record indicates that in May 2011—approximately three years after Rev.
Vitaglione assisted Alvarez in this case—the BIA declined to renew his
accreditation as a non-lawyer representative under then-operative 8 C.F.R.
§ 1292.2(d) in light of a “significant record of inadequate representation.” Admin.
R. 19–23.
13
protection against credible threats of violence, repeated harassment,
or bodily injury’ and (2) whether the order was ‘issued for the
purpose of preventing violent or threatening acts of domestic
violence’” (brackets in original) (quoting 8 U.S.C. § 1227(a)(2)(E)(ii))).
Concluding that any consideration of these arguments required
further record development, on June 30, 2021, the BIA remanded
Alvarez’s case with instructions that the IJ (1) “articulate whether
[Alvarez] established egregious circumstances that would allow him
to re-plead to the notice to appear”; and (2) “further consider whether
the DHS met its burden to demonstrate [Alvarez’s] removability
under [§ 1227(a)(2)(E)(ii)],” specifically “identify[ing] any evidence
relied on and explain[ing] the reasons for [the IJ’s] conclusions in his
decision.” In re Carlos Anibal Alvarez, No. A 038 919 528 (B.I.A. June
30, 2021).
The IJ Decision on Remand
Following further briefing by the parties, the IJ issued a
detailed decision sustaining both Alvarez’s removability under
§ 1227(a)(2)(E)(ii) and the denial of cancellation of removal. See In re
Carlos Anibal Alvarez, No. A 038 919 528 (Immig. Ct. Batavia, N.Y.
Aug. 6, 2021).
As to Alvarez’s removability, the IJ applied the two-pronged
framework articulated in Matter of Obshatko, 27 I. & N. Dec. at 176–77,
and, reviewing the totality of the evidence, found, first, that DHS had
satisfactorily shown that the October 2001 protection order was
issued for the purpose of preventing actual or threatened acts of
domestic violence. Second, construing every portion of the 2001 order
as protecting against “‘credible threats of violence, repeated
14
harassment, or bodily injury,’” the IJ found that DHS had necessarily
shown that Alvarez’s November 2002 contempt conviction was for
the sort of protection-order violation specified in § 1227(a)(2)(E)(ii).
In re Alvarez, No. A 038 919 528, at 11–12. (quoting 8 U.S.C.
§ 1227(a)(2)(E)(ii)). In light of these findings, the IJ then concluded
that Alvarez could not show that he had been prejudiced by any
deficiencies in Rev. Vitaglione’s assistance so as to demonstrate
egregious circumstances warranting Alvarez’s withdrawal of his
concession of removability and repleading.
As to cancellation of removal, the IJ first determined that,
contrary to his earlier ruling, Alvarez was statutorily eligible for such
relief under 8 U.S.C. § 1229b(a). 15 He then made careful credibility
findings, crediting Alvarez’s testimony in part and that of his
witnesses in full, but expressing “grave[] concern[]” about Alvarez’s
minimization of his past criminal conduct. Id. at 15. Finally, the IJ
identified factors favorable to Alvarez—e.g., extensive family ties in
the United States, long residence in this country, and regular
employment when not incarcerated—as well as factors unfavorable
to him—e.g., extensive criminal history; repeated violations of
protection orders, probation, and parole; history of drug abuse; and
minimal hardship to family from his deportation—and concluded
that, on balance, the latter outweighed the former and, therefore,
decided not to exercise his discretion in favor of cancellation.
15On remand, the IJ acknowledged that, in light of this court’s intervening decision
in Brathwaite v. Garland, 3 F. 4th at 555, Alvarez’s robbery conviction could not be
deemed final for immigration purposes while still on appeal.
15
Second Appeal to BIA
On appeal, the BIA upheld the IJ’s rulings. See In re Carlos
Anibal Alvarez, No. A 038 919 528 (B.I.A. Dec. 29, 2021). The BIA stated
that, with respect to § 1227(a)(2)(E)(ii) removability, the IJ had
correctly applied the Obshatko framework; construed the various
provisions of the 2001 protection order; and concluded therefrom that
a New York court, in finding Alvarez guilty of first-degree contempt
for violating that order, had necessarily found him to have violated
the sort of protection-order provision referenced in § 1227(a)(2)(E)(ii).
Having thus found Alvarez’s removability established by clear and
convincing evidence independent of Alvarez’s May 2008 concession,
the BIA deemed it unnecessary to consider whether egregious
circumstances warranted allowing the withdrawal of that concession
and repleading.
With respect to cancellation of removal, the BIA concluded that
the IJ had correctly identified “positive and negative factors and
engaged in an individualized analysis of [Alvarez’s] claim for relief.”
Id. at 2. Further, it concluded that the IJ had permissibly considered
the facts underlying Alvarez’s arrest for robbery, even though his
subsequent conviction was reversed on appeal. In any event, the BIA
concluded that because the robbery conviction was “merely one of
many negative factors” informing the denial of cancellation, its
reversal did “not significantly change, for purposes of discretion, the
cumulative negative weight of his extensive criminal record.” Id. at 5
n.4. Accordingly, the BIA upheld the IJ’s denial of cancellation of
removal.
16
Proceeding pro se, Alvarez timely petitioned this court for
review of the BIA’s December 2021 decision, and moved for leave to
pursue the petition in forma pauperis, for appointment of counsel, and
for a stay of removal. The government opposed a stay and moved to
expedite the appeal, whereupon retained counsel filed a reply on
Alvarez’s behalf. 16 The parties’ cross-motions are now before this
panel.
DISCUSSION
I. Jurisdiction and Standards of Review
Jurisdiction
Certain jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)
limit our ability to review BIA decisions to “constitutional claims or
questions of law.” That is the case for challenged denials of
cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i), (D). With
respect to such a denial, we are obliged to dismiss any claim by
Alvarez that “essentially disputes the correctness of [the agency’s]
factfinding or the wisdom of [its] exercise of discretion.” Barco-
Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (citation omitted).
On the other hand, our jurisdiction to review questions of law can
include a claim that the agency applied “a legally erroneous
standard” in denying discretionary relief from a final order of
removal. Id. (citation omitted).
16 Retained counsel appeared solely for the purpose of filing this reply brief.
17
Standard of Review for Orders of Removal
Alvarez’s challenge to his § 1227(a)(2)(E)(ii) order of removal is
not subject to one of the jurisdiction-stripping provisions of 8 U.S.C.
§ 1252(a). 17 Our review of Alvarez’s challenge to such a removal order
is instead guided by 8 U.S.C. § 1252(b), which states that, under the
substantial evidence standard, the agency’s factual findings are
“conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4). We nevertheless
“review de novo questions of law and the application of law to
undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); see
also Prenga v. Sessions, 745 F. App’x 392, 394 (2d Cir. 2018).
Frivolous Claims
Because Alvarez moves, among other things, for leave to
pursue his petition to this court in forma pauperis, we first consider
whether, under the review standards just discussed, the petition
presents a non-frivolous claim, i.e., a claim with an arguable basis in
law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1985) (defining
“frivolous” claim as one “lack[ing] an arguable basis either in law or
in fact”); Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) (holding that
party who advances only “inarguable legal conclusions or fanciful
factual allegations” has no plausible argument (brackets and internal
quotation marks omitted)). If it does not, we are statutorily obliged
17 Where removal is based on an alien’s conviction for certain crimes,
jurisdiction is limited in the same manner as review of denial of cancellation of
removal—that is, to “constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(C), (D). But § 1252(a)(2)(C) expressly does not include
§ 1227(a)(2)(E)(ii) within its scope.
18
to dismiss the petition. See 28 U.S.C. § 1915(e)(2)(B)(i) (stating that
court “shall dismiss” case filed in forma pauperis if it determines that
appeal is “frivolous”). In making that determination, we must be
careful not to conflate “[e]asy cases” with “inarguable or fanciful
ones,” as only the latter warrant dismissal under § 1915(e)(2)(B)(i).
United States v. Davis, 598 F.3d 10, 13–14 (2d Cir. 2010) (collecting cases
drawing distinction). At the same time, we are mindful that a petition
may require “research and analysis” and “detailed evaluation” and,
nevertheless, warrant dismissal as frivolous. Hidalgo-Disla v. I.N.S.,
52 F.3d 444, 447 (2d Cir. 1995).
In considering a challenge to a BIA decision summarily
upholding an IJ order of removal or denial of relief from removal, “we
review the judgment of the IJ” except “as modified by the BIA’s
decision.” Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d
Cir. 2005); accord Scarlett v. Barr, 957 F.3d 316, 327 (2d Cir. 2020) (“To
the extent the BIA adopts the IJ’s reasoning in denying relief, we
review the two decisions in tandem . . . .” (internal quotation marks
omitted)). Even where the BIA does not expressly adopt the IJ’s
decision but, nevertheless, “closely tracks the IJ’s reasoning,” we
consider both opinions “for the sake of completeness.” Wangchuck v.
Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Thus, in
determining whether Alvarez’s petition presents a non-frivolous
claim, we consider both the IJ and BIA opinions, but we do not
consider challenges to the IJ opinion—such as Alvarez’s challenge to
the IJ’s decision not to allow him to withdraw his concession of
removability—that the BIA found unnecessary to rely on or to
address in reaching its own decision. See, e.g., Chery v. Garland, 16
19
F.4th 980, 983 n.2 (2d Cir. 2021) (declining to consider argument that
BIA did not address on appeal).
Discretion To Review Alvarez’s Claimed “Modified
Categorical” Standard Error
In his counseled reply brief to this panel in support of his stay
motion, Alvarez submits that the IJ and BIA erred in failing to apply
a modified categorical standard when deciding his removability
under § 1227(a)(2)(E)(ii). As is now well established, under the
categorical standard devised by the Supreme Court for assessing
certain crimes, a court considers “the minimum criminal conduct
necessary to satisfy the elements of a crime, without regard to
whether the defendant himself engaged in more egregious conduct.”
United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (en banc); see United
States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (collecting cases discussing
categorical approach). A “modified categorical” standard applies to
divisible statutes having “multiple alternative elements.” Mathis v.
United States, 579 U.S. 500, 505 (2016). In those circumstances, a court
looks first to “a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was
convicted of.” Id. at 505–06. Once that crime is identified, the court
uses the categorical standard to determine the minimal criminal
conduct necessary to satisfy the elements of that crime. See United
States v. Scott, 990 F.3d at 104.
It is not entirely clear that Alvarez ever urged a modified
categorical standard before the agency. See Zhong v. U.S. Dep’t of Just.,
480 F.3d 104, 120 (2d Cir. 2007) (holding that issue exhaustion is not
20
jurisdictional but still mandatory, subject to waiver). Before both the
IJ and the BIA, Alvarez argued that the IJ’s initial finding of
removability was erroneous because (1) Rev. Vitaglione was
ineffective in conceding removability at a time when the agency was
still applying the categorical approach to § 1227(a)(2)(E)(ii)
determinations; and (2) the documentary record was insufficient to
support a categorical finding of removability. See Admin. R. 11.
Alvarez further argued to the BIA that (3) on remand, the IJ
misapplied the subsequently pronounced Obshatko standard. See id.
at 12–13. Assuming that this was sufficient “implicitly,” if not
“explicitly,” to question the IJ’s interpretative approach, Adams v.
Holder, 692 F.3d 91, 96 n.2 (2d Cir. 2012), 18 we are nevertheless obliged
to dismiss Alvarez’s petition because a claim that it was error not to
apply the modified categorical approach lacks an arguable basis in
law or fact.
Chevron
One final point is relevant to our review. Generally, when a
petitioner challenges an agency’s interpretation of a statutory
provision that the agency administers, “we employ the familiar two
step inquiry set forth in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. [837 (1984) (“Chevron”)].” Xia Fan Huang
v. Holder, 591 F.3d 124, 129 (2d Cir. 2010). At the first step, we consider
“whether Congress has directly spoken to the precise question at
18 See Gill v. I.N.S., 420 F.3d 82, 86 (2d Cir. 2005) (stating that petitioner is not
“limited to the exact contours of his argument below” and that court may consider
“subsidiary legal arguments, or arguments by extension, that were not made
below”).
21
issue” because, if it has and its intent is clear, “that is the end of the
matter.” Nwozuzu v. Holder, 726 F.3d 323, 326–27 (2d Cir. 2013)
(quoting Chevron, 467 U.S. at 842). If, and only if, there is “ambiguity”
as to what Congress intended by certain language, do we proceed to
Chevron’s second step, which requires us to “defer to an agency’s
interpretation of the statute if that interpretation is reasonable.” Id. at
327.
Without specifically deciding the question, this court has
thought it “arguabl[e]” that Chevron deference might apply to a BIA
decision as to whether to apply a categorical or circumstance-specific
approach to removability under 8 U.S.C. § 1227(a)(2)(A)(iii), the INA’s
“aggravated felony” provision. See Ming Lam Sui v. I.N.S., 250 F.3d
105, 116 n.10 (2d Cir. 2001); accord Gertsenshteyn v. U.S. Dep’t of Just.,
544 F.3d 137, 145 (2d Cir. 2008) (leaving question open with respect to
aggravated felony provision). We need not here decide the propriety
of Chevron deference because we resolve this case at Chevron’s first
step, construing the text of § 1227(a)(2)(E)(ii) unambiguously to
express Congress’s intent for a circumstance-specific, rather than
categorical, or even modified categorical, approach to apply to
questions of removability under that provision. This conclusion also
finds support in pertinent precedents from the Supreme Court, our
own court, and other courts of appeal. Thus, while the BIA’s own
interpretation of § 1227(a)(2)(E)(ii) effectively, if not entirely, accords
with our own, 19 there is no need for us to accord it Chevron deference
19 See infra at 34–35 (discussing Matter of Obshatko, in which BIA clearly rejects
categorical approach in determining removability under § 1227(a)(2)(E)(ii), see 27
I. & N. Dec. at 175, while also seeming to reject circumstance-specific approach for
22
to conclude that no arguable basis in law or fact supports Alvarez’s
claim that the agency erred in failing to apply a modified categorical
standard to determining his removability.
II. Alvarez’s Argument for a Modified Categorical Standard
Lacks an Arguable Basis in Law or Fact
A. The Text of § 1227(a)(2)(E)(ii)
Title 8 U.S.C. § 1227 identifies numerous classes of person as
“deportable” (i.e., removable) from the United States. 20 Some of
those classes are defined simply by reference to an alien’s
immigration status. 21 Others are identified by reference to various
“[c]riminal offenses.” 8 U.S.C. § 1227(a)(2). A significant number of
§ 1227(a)(2)’s subparts premise removability on an alien having been
“convicted” of a specified crime. 22 But not all. For example,
one that “in practical terms” yields same result by looking to “any reliable
evidence,” id. at 176).
20“The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104–208, Div. C, 110 Stat. 3009–546, realigned the vocabulary of immigration
law, creating a new category of ‘removal’ proceedings that largely replaces what
were formerly exclusion proceedings and deportation proceedings.” Evangelista
v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir. 2004) (internal quotation marks omitted).
21See, e.g., 8 U.S.C. § 1227(a)(1)(A) (referencing aliens who were “inadmissible”
when they entered United States); id. § 1227(a)(1)(C)(ii) (referencing persons who
violated rules of entry); see id. § 1227(a)(1)(D)(i) (referencing persons whose
temporary legal permanent resident status has been revoked).
22See, e.g., id. § 1227(a)(2)(A)(i) (referencing alien “convicted of a [felony] crime
involving moral turpitude”); id. § 1227(a)(2)(A)(ii) (referencing alien “convicted of
two or more crimes involving moral turpitude, not arising out of a single
scheme”); id. § 1227(a)(2)(A)(iii) (referencing alien “convicted of an aggravated
felony”); id. § 1227(a)(2)(A)(iv) (referencing alien “convicted” of crime “relating to
23
§ 1227(a)(2)(B)(ii) states that an alien who “is, or any time after
admission has been, a drug abuser or addict is deportable.” That
section does not require that the abuser or addict have been
convicted of any crime. See id. Further, and as pertinent here,
§ 1227(a)(2)(E)(ii) states that an alien whom a court finds to have
“engaged in conduct that violates” those provisions of a “protection
order” involving certain protections is deportable—again with no
mention, much less requirement, of a related criminal conviction.
While we have previously quoted this statute in part, we do
so now in its entirety:
Any alien who at any time after admission is
enjoined under a protection order issued by a
court and whom the 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 is deportable. For
purposes of this clause, the term “protection
order” means any injunction issued for the
purpose of preventing violent or threatening acts
of domestic violence, including temporary or final
orders issued by civil or criminal courts (other
than support or child custody orders or
provisions) whether obtained by filing an
high speed flight from an immigration checkpoint”); id. § 1227(a)(2)(A)(v)
(referencing alien “convicted” of failing to register as sex offender); id.
§ 1227(a)(2)(B)(i) (referencing alien “convicted” of certain drug trafficking crimes);
id. § 1227(a)(2)(C) (referencing alien “convicted” of certain firearm crimes); id.
§ 1227(a)(2)(E)(i) (referencing alien “convicted” of certain crimes of domestic
violence, child abuse, child neglect, or child abandonment).
24
independent action or as a pendente lite order in
another proceeding.
Id. § 1227(a)(2)(E)(ii).
We construe the quoted text unambiguously to signal
Congress’s intent for removability under § 1227(a)(2)(E)(ii) to be
determined on a circumstance-specific rather than a categorical—or
modified categorical—basis. See generally National Ass’n of Mfrs. v.
Dep’t of Def., 138 S. Ct. 617, 631 (2018) (stating that where plain
language of statute is unambiguous, inquiry “begins with the
statutory text, and ends there as well” (citation omitted)); Nwozuzu v.
Holder, 726 F.3d at 327 (stating that court begins with language of
statute and, if “statutory terms are unambiguous,” construes statute
according to plain meaning of its terms).
As noted supra at 20, the categorical and modified categorical
standards focus on the minimum conduct necessary to support
conviction for a generally applicable crime (or part of a divisible
crime), “without regard to” the actual conduct engaged in by a
particular defendant. United States v. Scott, 990 F.3d at 104. By
contrast, § 1227(a)(2)(E)(ii) nowhere references an alien being
convicted of any crime to support removability. Rather, the text of
§ 1227(a)(2)(E)(ii) places singular focus on the particular protection
order entered against an alien and that alien’s own conduct in
violating the order. Whether or not that conduct results in a
conviction, the alien is removable under § 1227(a)(2)(E)(ii) so long as
the record permits immigration authorities to find that (1) the alien
was subject to a court protection order—defined by statute as having
been “issued for the purpose of preventing violent or threatening acts
25
of domestic violence”; and (2) a court found the alien to have
“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.” 8 U.S.C. § 1227(a)(2)(E)(ii). This
necessarily calls for a circumstance-specific inquiry to determine both
whether the alien engaged in conduct that violated the protection
order under which he was enjoined and whether his conduct-based
violation pertained to a provision of that order involving protection
against credible threats of violence, repeated harassment, or bodily
injury to a particular person. That immigration authorities’ inquiry is
guided by what a court—most often a state court—determined about
the alien’s own conduct does not render the agency’s analysis any less
circumstance-specific.
Context only reinforces the conclusion we draw from text. See
generally Bruce Katz, M.D., P.C. v. Focus Forward, LLC, 22 F.4th 368, 372
(2d Cir. 2022) (“The text’s plain meaning can best be understood by
looking to the statutory scheme as a whole and placing the particular
provision within the context of that statute.” (citation omitted)). As
earlier noted, § 1227(a)(2) uses the fact of “conviction” to identify
many classes of aliens as removable based on specific criminal
offenses. See supra 23 & n.22. This includes aliens “convicted of a
crime of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(i). But in the
very next subpart of § 1227(a)(2)(E), Congress omits any conviction
requirement in identifying as also removable those aliens found to
have “engaged in conduct” violating specified provisions of the
protection orders to which they were subject. Id. § 1227(a)(2)(E)(ii).
Where Congress uses language in one part of a statute that it omits
26
from another—particularly a closely adjacent other—well-established
principles of statutory construction instruct courts to assume that the
choice was deliberate and indicative of a different intent. See Loughrin
v. United States, 573 U.S. 351, 358 (2014). When we follow that
principle here, context, as well as text, compels the conclusion that
Congress clearly intended for § 1227(a)(2)(E)(ii) removability to be
determined by the alien’s conduct and the particular protection order
it was found to have violated, rather than a categorical, or modified
categorical, assessment of some crime of conviction.
Nor is a different conclusion warranted because
§ 1227(a)(2)(E)(ii) requires a finding not only that an alien’s conduct
violated a protection order, but also that the violation pertained to a
particular provision of the order “involv[ing] protection against
credible threats of violence, repeated harassment, or bodily injury to”
a specified protected person. Alvarez attempts to cast the last
requirement as a modified categorical inquiry by treating a protection
order as the equivalent of a divisible statute, with the quoted
language serving as a requisite element for purposes of removability.
But the text of § 1227(a)(2)(E)(ii) provides no basis for this argument.
A protection order is not akin to a statute, which identifies crimes of
general applicability through elements that categorically identify the
minimum conduct required to convict some hypothetical person
without regard to the specific conduct of a convicted defendant. See
Nijhawan v. Holder, 557 U.S. 29, 34–36 (2009) (explaining rationale for
categorical approach). Rather, a protection order is statutorily
defined as an “injunction,” i.e., a court order that applies to a
particular person “for the purpose of preventing” that person from
engaging in “violent or threatening acts of domestic violence,”
27
usually as against one or more named persons. 8 U.S.C.
§ 1227(a)(2)(E)(ii). In short, a protection order has no general
application; it is necessarily case-specific.
We assume that Congress understood the difference between
generally applicable criminal statutes and case-specific protection
orders when it made violations of the latter, not convictions under the
former, the ground for removal under § 1227(a)(2)(E)(ii). See generally
United States v. Scott, 990 F.3d at 108–10 (presuming Congress’s
understanding of words used in statutes). Thus, because the statutory
text signals Congress’s clear intent for removability under
§ 1227(a)(2)(E)(ii) to be determined by reference to the totality of the
circumstances, Alvarez’s argument for the application of a modified
categorical standard lacks an arguable basis in law.
B. Relevant Precedent
Relevant precedents reinforce the conclusion we draw from
text.
1. Supreme Court
While courts have long applied a categorical approach to
determining removability under those subparts of § 1227(a)(2) that
depend on conviction for a specified crime, see Mellouli v. Lynch, 575
U.S. 798, 804 (2015); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–86
(2007), the Supreme Court has cautioned that, even in that context, the
approach is not absolute, see Nijhawan v. Holder, 557 U.S. at 36. At
issue in Nijhawan was § 1227(a)(2)(A)(iii), which identifies as
deportable an alien “convicted of an aggravated felony.” The INA
defines “aggravated felony” to include, among other crimes, “an
28
offense that . . . involves fraud or deceit in which the loss to the victim
or victims exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i). The
question before the Supreme Court was whether this statutory
definition requires the specified loss amount to operate categorically,
i.e., as a necessary element of any fraud or deceit crime supporting
removal, or whether the requisite loss could be satisfied on a case-
specific inquiry. 23
A unanimous Court concluded that the loss amount required
for an aggravated felony is case-specific, not categorical. See Nijhawan
v. Holder, 557 U.S. at 40. Looking to statutory text, the Court observed
that the language Congress used to identify those fraud and deceit
crimes constituting aggravated felonies “almost certainly does not
refer to generic crimes but refers to specific circumstances” and
“contain[s] qualifying language that certainly seems to call for
circumstance-specific application.” Id. at 37, 38. The Court reasoned
that Congress’s use of the phrase “in which” to modify “offense”
signaled its intent to “refer to the conduct involved ‘in’ the
commission of the offense of conviction, rather than to the elements
of the offense.” Id. at 39 (emphasis in original). To conclude
otherwise, the Court explained, “would leave subparagraph (M)(i)”
of the statutory definition of aggravated felony “with little, if any,
meaningful application.” Id.23 Nijhawan was convicted after trial of conspiring to commit mail fraud, wire
fraud, bank fraud, and money laundering, in violation of 18 U.S.C. §§ 371, 1341,
1343, 1344, & 1956(h), statutes that do not require proof of a loss amount. See
Nijhawan v. Holder, 557 U.S. at 32. While the jury made no loss finding, at
sentencing, Nijhawan stipulated to having caused his victims a loss of at least $100
million. See id.29
The Supreme Court’s reasoning in Nijhawan applies with even
more force to removability determinations under § 1227(a)(2)(E)(ii),
which, unlike § 1227(a)(2)(A)(iii), does not require any “conviction,”
the usual trigger for a categorical, or modified categorical, standard.
See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (stating, in
immigration context, that “conviction is the relevant statutory hook”
for applying categorical standard (internal alterations and quotation
marks omitted)). Moreover, in § 1227(a)(2)(E)(ii), Congress does not
simply use a preposition to “refer to the conduct involved ‘in’ the
commission of” a generally applicable crime. Nijhawan v. Holder, 557
U.S. at 39. Rather, Congress explicitly states that the “conduct”
“engaged in” by an alien in violating a protection order—and not the
mere fact of a violation—is determinative of removability. 8 U.S.C.
§ 1227(a)(2)(E)(ii).
Thus, both Nijhawan’s reasoning and statutory text leave
Alvarez with no arguable basis in law for applying a categorical or
modified categorical approach to § 1227(a)(2)(E)(ii).
2. Second Circuit
Nor can Alvarez locate such a basis in our own precedent.
Even before Nijhawan, this court recognized that certain removal
provisions of § 1227(a)(ii) might “invite inquiry into the facts
underlying the [prior] conviction.” James v. Mukasey, 522 F.3d 250, 255
& n.5 (2d Cir. 2008) (alterations and citation omitted). Indeed, only a
few months before the Supreme Court decided Nijhawan, in a case
challenging a determination of removability under § 1227(a)(2)(E)(ii),
we cited approvingly to James in stating that “[n]ot every removability
provision requires application of the ‘categorical approach’ or the
30
‘modified categorical approach.’” Hoodho v. Holder, 558 F.3d 184, 189
n.2 (2d Cir. 2009).
To be sure, in Hoodho, this court found it unnecessary
conclusively to reject petitioner’s argument for application of a
categorical standard to § 1227(a)(2)(E)(ii). See id. at 190 (holding
petitioner bound, in any event, by concession of removability in
immigration proceedings). But when the question arose again in
Garcia v. Wilkinson, the court thought it sufficiently clear from the text
of § 1227(a)(2)(E)(ii) and from the reasoning in Nijhawan that a
circumstance-specific, rather than categorical, standard applied to
removal determinations under that subpart that we reached the
conclusion summarily. See 847 F. App’x 50, 53 (2d Cir. 2021)
(observing that statutory text “requires that the agency or reviewing
court assess the ‘conduct’ of the individual rather than the type of
conviction” in determining § 1227(a)(2)(E)(ii) removability (citing,
inter alia, Nijhawan v. Holder, 557 U.S. at 38–39)).
Thus, in this published opinion, we simply reiterate what we
recognized summarily in Garcia: removability under
§ 1227(a)(2)(E)(ii) is not subject to a categorical, or modified
categorical, standard. Cf. Furman v. United States, 720 F.2d 263, 265
(2d Cir. 1983) (“The fact that a disposition is by informal summary
order rather than by formal published opinion in no way indicates
that less than adequate consideration has been given to the claims
raised in the appeal.”). Rather, it depends on a case-specific
determination of circumstances, both as to the existence and terms of
a particular protection order entered against an alien and the conduct
engaged in by the alien in violating that order.
31
3. Other Courts of Appeals
Our conclusion also comports with the rulings of other courts
of appeals. Notably, in Garcia-Hernandez v. Boente, the Seventh Circuit
held that, because the text of § 1227(a)(2)(E)(ii) “does not depend on a
criminal conviction but on what a court ‘determines’ about the alien’s
conduct[,] . . . neither the categorical approach nor the modified
categorical approach” applies in determining removability under that
statutory subpart. 847 F.3d 869, 872 (7th Cir. 2017). Rather, if “the
alien has engaged in conduct that violates a portion of the order that
‘involves protection against credible threats of violence, repeated
harassment, or bodily injury’”—a circumstance-specific inquiry—
“that is enough for purposes of (E)(ii).” Id. (quoting 8 U.S.C.
§ 1227(a)(2)(E)(ii)).
Reiterating this conclusion in Rodriguez v. Sessions, the Seventh
Circuit stated that “[w]hen a statute does not make itself contingent
on a conviction, the categorical approach is unnecessary, and courts
should respond to what the statute does depend on,” which, for
purposes of determining removability under § 1227(a)(2)(E)(ii), is
simply “what a court determines about the alien’s conduct” in his
particular case. 876 F.3d 280, 284 (7th Cir. 2017) (emphasis in original)
(internal quotation marks omitted).
The Third Circuit recently cited approvingly to Rodriguez v.
Sessions in stating that removability under § 1227(a)(2)(E)(ii)
ultimately turns on a finding as to an alien’s “conduct.” Sunuwar v.
Att’y Gen., 989 F.3d 239, 247–48 (3d Cir. 2021). The conclusion
effectively rejects a categorical, or modified categorical, approach to
removability under § 1227(a)(2)(E)(ii). See id. at 248 (approving
32
agency’s reference to “probative and reliable evidence regarding
what the Pennsylvania court has determined about Sunuwar’s
violation” of pertinent protection order (alterations and internal
quotation marks omitted)). In fact, the Third Circuit had already
summarily approved the agency’s use of a “‘circumstance-specific’
approach, rather than a categorical/modified categorical approach” to
determining § 1227(a)(2)(E)(ii) removability. Reid v. Att’y Gen., 651 F.
App’x 134, 135 (3d Cir. 2016). There, the court had cited Nijhawan as
rejecting any “evidentiary limitations on sources to which the court
can look under the circumstance-specific approach.” Id. at 135–36.
Similarly, the Ninth Circuit, in rejecting a petition challenging
an order of removal under § 1227(a)(2)(E)(ii), upheld the BIA’s view
that “the categorical approach does not apply” to determining
removability under that section or affording discretionary relief
therefrom. Diaz-Quirazco v. Barr, 931 F.3d 830, 835 (9th Cir. 2019). 24
24 A decade earlier, Judge Wu had urged this same conclusion from the plain
language of § 1227(a)(2)(E)(ii) and the reasoning in Nijhawan. See Szalai v. Holder,
572 F.3d 975, 982–87 (9th Cir. 2009) (Wu, J., concurring). When the Ninth Circuit
subsequently adopted the conclusion in Diaz-Quirazco, the court employed
Chevron deference, identifying some ambiguity as to Congress’s intent to bar aliens
removable under § 1227(a)(2)(E)(ii) from cancellation of removal under
§ 1229b(b)(1)(C), given the former statutory provision’s focus on “conduct”
without regard to conviction, while the latter’s prohibition of relief references only
conviction. See Diaz-Quirazco v. Barr, 931 F.3d at 835, 840–42 (deferring to BIA’s
construction of both statutory provisions as set forth in Matter of Obshatko, 27 I. &
N. Dec. 173, and Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (B.I.A. 2018)). To the
extent the Ninth Circuit identified ambiguity, we think that conclusion warranted,
at most, with respect to the scope of the § 1229b(b)(1)(C) bar, a matter we need not
here consider given that no party challenges the agency’s present recognition of
Alvarez’s eligibility for cancellation of removal. For the reasons already stated
supra at 23–28, we identify no ambiguity with respect to Congress’s intent for
33
The court explained that “[w]hile a conviction may underlie the
charge” of removability under § 1227(a)(2)(E)(ii), “whether the alien
has been ‘convicted’ is not the critical question.” Id. at 841 (emphasis
added); see also id. at 840 (citing authority recognizing that, in
statutory text, “word ‘conviction’” generally “triggers the categorical
approach”). Rather, § 1227(a)(2)(E)(ii) “focuses on what the state
court found about the alien’s conduct.” Id. at 841.
The Tenth Circuit’s earlier decision in Cespedes v. Lynch, 805
F.3d 1274 (10th Cir. 2015), is not to the contrary. The petitioner in that
case had been convicted of violating a no-contact provision of a
protection order. In upholding his § 1227(a)(2)(E)(ii) removal by
reference only to the conviction and not to the petitioner’s conduct,
the court rejected his modified-categorical argument as irrelevant. See
id. at 1276 n.5.
In sum, there is no arguable basis in text or precedent for
Alvarez’s insistence on a modified categorical standard for
determining § 1227(a)(2)(E)(ii) removability.
C. The BIA Construction of § 1227(a)(2)(E)(ii)
While the absence of statutory ambiguity makes it unnecessary
for us to defer to the BIA’s construction of § 1227(a)(2)(E)(ii) at the
second step of Chevron analysis, we nevertheless note that the BIA’s
§ 1227(a)(2)(E)(ii) removability to be determined on a circumstance-specific rather
than categorical basis and, thus, no need for Chevron deference to the BIA on this
point. Nevertheless, as we note in the next section of this opinion, the BIA’s
construction of § 1227(a)(2)(E)(ii) now aligns with our own insofar as it rejects a
categorical standard in favor of what is, in practice, if not in name, a circumstance-
specific one. See infra at 34–36.
34
view, as expressed in its 2017 precedential opinion Matter of Obshatko,
27 I. & N. Dec. 173, is largely consistent with our own, as well as the
court precedents just discussed.
Before Obshatko, the BIA, in considering the removability of an
alien convicted of a crime as a result of a protection order violation,
had “presumed” that a categorical standard applied to
§ 1227(a)(2)(E)(ii). Id. at 177 (observing that in Matter of Strydom, 25 I.
& N. Dec. 507 (B.I.A. 2011), BIA had determined that alien’s
conviction rendered him categorically removable under
§ 1227(a)(2)(E)(ii)). But when compelled “squarely” to address the
interpretative approach applicable to § 1227(a)(2)(E)(ii) in Obshatko,
the agency concluded that “[b]ecause Congress did not require a
‘conviction’” in that statutory subpart, “it did not intend an alien’s
removability under that section to be analyzed under either the
categorical or modified categorical approach,” even when supported
by a conviction. Id. at 175, 177. In support of that conclusion, the BIA
relied on some of the same authority earlier cited in this opinion. See
id. at 175–76 (citing, inter alia, Mellouli v. Lynch, 575 U.S. at 806; Garcia-
Hernandez v. Boente, 847 F.3d at 872; Hoodho v. Holder, 558 F.3d at 189
n.2). 25
25 To the extent the BIA, in Matter of Obshatko, seems also to have rejected a
circumstance-specific approach to § 1227(a)(2)(E)(ii), see I. & N. Dec. at 176, we owe
no deference to this interpretation given the clarity with which we think Congress
has signaled its intent for such a standard to apply. In any event, we think the
BIA’s reasoning on this point more confusing than persuasive. To explain, the BIA
cited Nijhawan v. Holder, 557 U.S. at 40 (rejecting categorical, and approving
circumstance-specific, standard for determining monetary threshold required to
recognize fraud conviction as “aggravated felony” supporting § 1227(a)(2)(A)(iii)
35
In sum, neither text, precedents, nor even current agency
rulings provide an arguable basis in law for Alvarez to challenge his
removal based on the agency’s failure to apply a modified categorical
standard of review.
III. Alvarez’s Removability Under § 1227(a)(2)(E)(ii)
Having thus concluded that Alvarez lacks an arguable basis in
law or fact to fault immigration authorities for failing to apply a
modified categorical standard in determining his removability under
removal), in concluding that a circumstance-specific standard applies “only when
a portion of a criminal ground of removability is not subject to the categorical
approach.” Matter of Obshatko, I. & N. Dec. at 176 (emphasis in original). Even
assuming the soundness of that conclusion with respect to removal grounds
expressly requiring a conviction, the BIA nowhere explained how Nijhawan
supports the agency’s further conclusion that where—as in § 1227(a)(2)(E)(ii)—
removal requires no conviction such that “the entire ground” for removal “is not
subject to a categorical analysis,” it follows that “a circumstance-specific approach
is inapposite.” Id. (emphasis in original). The more logical conclusion would be
that where the entire ground for removal is not subject to categorical analysis, a
circumstance-specific standard applies. Instead, the BIA stated that immigration
authorities determining § 1227(a)(2)(E)(ii) removability are somehow “limit[ed]”
by the statutory text to identifying “what a court has ‘determined’ about the alien’s
violation of a protection order.” Id. But in the very next sentence, the BIA
effectively acknowledged that this is no limitation at all because that
determination is itself circumstance-specific: “[I]n practical terms, the result in this
case may be the same under the circumstance-specific approach, since both the
specific circumstances surrounding an alien’s violation and what a court has
‘determined’ regarding that violation may be established through any reliable
evidence.” Id. (emphasis added). In sum, the BIA effectively recognized that an
immigration court’s § 1227(a)(2)(E)(ii) inquiry, even when focused on a state
court’s violation finding, is entirely circumstance-specific and not categorical.
Thus, BIA construction of § 1227(a)(2)(E)(ii) provides no arguable basis in law for
Alvarez’s modified-categorical challenge to removal.
36
§ 1227(a)(2)(E)(ii), we conclude that Alvarez advances no other
cognizable challenge to removal.
He does not—and cannot—dispute that when, in 2002, he was
charged with, inter alia, assaulting Ms. Escolastico, he was then
enjoined from engaging in such conduct by a 2001 New York court
protection order “issued for the purpose of preventing violent or
threatening acts of domestic violence,” as specified in
§ 1227(a)(2)(E)(ii). The New York statute pursuant to which the court
entered the 2001 protection order authorizes the issuance of such
orders in the event of a criminal action “involving a complaint
charging any crime or violation between spouses, former spouses, . . .
or between members of the same family or household.” N.Y. Crim.
Proc. § 530.12. The 2001 order was entered shortly after Alvarez
pleaded guilty to a charge of first-degree criminal contempt for
assaulting Ms. Escolastico in violation of a 1999 protection order.
Given the underlying facts, detailed supra at 4–7, there can be no
question that the 2001 order was entered “for the purpose of
preventing violent or threatening acts of domestic violence.” 8 U.S.C.
§ 1227(a)(2)(E)(ii).
Nor is there an arguable basis in law or fact for Alvarez’s
contention that the state court failed to find that he “engaged in
conduct that violate[d] the portion of [the 2001] protection order that
involve[d] protection against credible threats of violence, repeated
harassment, or bodily injury to the person or persons for whom the
protection order was issued.” Id. To explain, a provision of the 2001
protection order clearly involves protection against physical harm or
harassment, in that it required Alvarez to “[r]efrain from assault,
37
stalking, harassment, menacing, reckless endangerment, disorderly
conduct, intimidation, threats, or any criminal offense against . . .
Angela Escolastico.” Admin. R. 134. New York State court records
show that Alvarez pleaded guilty to first-degree criminal contempt in
violation of Count Two of the 2002 indictment. 26 See id. at 1448. That
count charged that Alvarez, while subject to a court protection order,
“struck, shoved, and otherwise subjected Angela Escolastico to
physical contact” in violation of N.Y. Penal L. § 215.51(b)(v). Id. at
1451. Alvarez’s conviction on Count Two thus admits only one
finding: that he engaged in physically assaultive conduct toward Ms.
Escolastico, such that the New York court necessarily determined that
he engaged in conduct that violated the above-quoted provision of
the 2001 order involving the protections specified in
§ 1227(a)(2)(E)(ii).
There appears to have been some confusion in Alvarez’s
immigration proceedings as to whether his first-degree contempt
conviction was under N.Y. Penal L. § 215.51(b)(ii) or (b)(v) (quoted
supra at 5 n.3). Rather than address the ambiguity, DHS argued that
it was immaterial because every provision of the 2001 protection order,
including those requiring Alvarez to stay away from Ms. Escolastico
and prohibiting him from contacting her, involved protection against
credible threats of violence, repeated harassment, or bodily injury, as
26As we explain supra at 25–28, the focus of inquiry under § 1227(a)(2)(E)(ii) is on
an alien’s “conduct,” not on any “conviction” associated with that conduct.
Nevertheless, because “conduct” is circumstance-specific, any relevant evidence,
including a record of conviction, may be considered in determining what an alien’s
conduct entailed. In this, we agree with the BIA. See Matter of Obshatko, 27 I. & N.
Dec. at 176 (stating that “any reliable evidence” may be considered in making
§ 1227(a)(2)(E)(ii) findings).
38
specified in § 1227(a)(2)(E)(ii). The BIA accepted this argument
consistent with its own precedent. See Matter of Strydom, 25 I & N Dec.
at 509–11 (holding that no-contact provision in protection order
ensures “victims will not be victimized again”). While generally “we
cannot, on appeal, substitute an argument . . . for those that the BIA
actually gave to support the conclusion [petitioner] disputes on
appeal,” Singh v. U.S. Dep’t of Just., 461 F.3d 290, 294 n.3 (2d Cir. 2006),
a petitioner has no arguable basis in law for relief when the record
clearly indicates that immigration authorities would have to reach the
same conclusion on remand, see Cao He Lin v. U.S. Dep’t of Just., 428
F.3d 391, 401–02 (2d Cir. 2005) (holding remand unnecessary “where
there is no realistic possibility that, absent the errors, the IJ or BIA
would have reached a different conclusion”). That is this case, given
that state records clearly demonstrate that Alvarez was convicted for
contempt under N.Y. Penal L. § 215.51(b)(v).
Accordingly, we need not here decide whether violation of a
“stay-away” or “no-contact” provision of a protection order involves
the sort of protection specified in § 1227(a)(2)(E)(ii), as the BIA has
held. Several courts of appeals have reached the same conclusion,
either independently or deferentially under Chevron. See Sunuwar v.
Att’y Gen., 989 F.3d at 248 [3d Cir.]; Garcia-Hernandez v. Boente, 847
F.3d at 873 [7th Cir.]; Szalai v. Holder, 572 F.3d 975, 980–82 (9th Cir.
2009); Alanis-Alvarez v. Holder, 558 F.3d 833, 839 (9th Cir. 2009). We
did not ourselves decide the question when it arose in Hoodho v.
Holder, relying instead on the criminal complaint to which petitioner
there had pleaded guilty to conclude that he violated a protection
order provision protecting against “repeated harassment” as
specified in § 1227(a)(2)(E)(ii). 558 F.3d at 190. So here, we do not
39
decide the question because state court records make clear that
Alvarez’s contempt conviction was for physically assaultive conduct
in violation of N.Y. Penal L. § 215.51(b)(v), clearly violating the
provision of the 2001 protection order in the manner specified by
§ 1227(a)(2)(E)(ii).
Finally, we also need not here decide whether
§ 1227(a)(2)(E)(ii)’s “provision” requirement must be found by the
court—here, the state court—identifying a protection order violation
(as Alvarez sometimes urges), 27 or whether it can be found by the
immigration authorities deciding removability (as at least one of our
sister circuits has ruled) 28 because, even if we were to decide that
question in Alvarez’s favor, the record of conviction compels the
conclusion that the state court effectively made the finding required
under § 1227(a)(2)(E)(ii).
27Elsewhere in his counseled reply, Alvarez argues that “[t]he removal statute . . .
requires the Immigration Court to determine which section of an order of
protection was violated.” Pet. Reply at 7.
28In Cespedes v. Lynch, the Tenth Circuit ruled that a state court, in finding an alien’s
conduct to have violated a protection order, need not have further found that the
alien breached a provision of the sort identified in § 1227(a)(2)(E)(ii). See 805 F.3d
at 1278. It reasoned that “Congress surely did not expect state courts, in
anticipation of a possible removal proceeding, to make a finding about the
purpose of each clause of a protection order.” Id. Thus, it held that a state court
need only “find that conduct violated the terms of the order,” with federal
immigration authorities responsible for deciding which provision was violated
and “whether the violated term involves protection against credible threats of
violence.” Id. (internal quotation marks omitted). The reasoning is persuasive, but
we need not ourselves conclusively adopt it because the record of conviction
denies Alvarez any arguable basis in fact to claim that the state court did not make
the provision finding required by § 1227(a)(2)(E)(ii).
40
In sum, because there is no arguable basis in law or fact for
Alvarez to challenge his removability under § 1227(a)(2)(E)(ii), we are
obliged to dismiss that part of his petition.
IV. Cancellation of Removal
We must also dismiss the remainder of Alvarez’s petition
challenging the agency’s discretionary denial of his application for
cancellation of removal. To the extent Alvarez, in moving pro se for a
stay, asserts that “[t]he IJ’s exercise of discretion [in denying
cancellation] was improper,” Mot. for Stay at 1, that conclusory
assertion is insufficient to allow us to exercise jurisdiction. See Xiao Ji
Chen v. U.S. Dep’t of Just., 471 F.3d 315, 329 (2d Cir. 2006) (stating that
where petition “merely quarrels over the correctness of the factual
findings or justification for [an IJ’s] discretionary choices,” court lacks
jurisdiction to review). Insofar as Alvarez’s counsel, in his reply brief,
states that his challenge to the agency’s denial of relief “rests on
whether or not respondent should be considered removable as
charged” under § 1227(a)(2)(E)(ii), Pet. Reply at 5, the challenge to the
decision to deny cancellation of removal must be dismissed for the
same reasons as the removability challenge on which it rests.
To the extent Alvarez seeks to avoid this result by invoking the
constitutional protection of due process, see Pet. at 8 (challenging IJ’s
adverse credibility finding as due process violation), a “talismanic
invocation of the language of ‘due process’” is insufficient to afford
us jurisdiction to review what is, at its core, a factual dispute. Saloum
v. U.S. Citizenship & Immigr. Servs., 437 F.3d 238, 243 (2d Cir. 2006).
Similarly, Alvarez’s claim that the factors favorable to his application
for cancellation were not “fully” considered by the IJ and BIA, Pet. at
41
3, is really a challenge to how the IJ balanced those factors against
unfavorable ones, an “unreviewable argument.” Argueta v. Holder,
617 F.3d 109, 113 (2d Cir. 2010).
Nor is there an arguable basis in law or fact for Alvarez to fault
the IJ’s consideration of his 2015 robbery conviction—reversed on
double jeopardy grounds—as a negative factor weighing against
cancellation. In rejecting Alvarez’s claim of error, the BIA ruled that
an IJ “may consider the underlying factors of an arrest, even if the
arrest ultimately does not lead to a conviction.” Admin. R. 5 (citing
Matter of Thomas, 21 I. & N. Dec. 20, 23 (B.I.A. 1995)). That comports
with our own precedent, holding that immigration authorities may
consider misconduct that does not result in a conviction when
evaluating whether an alien merits discretionary relief. See Wallace v.
Gonzales, 463 F.3d 135, 139 (2d Cir. 2006) (identifying “no reason to
prevent an IJ or the BIA from considering an applicant’s anti-social
conduct—whether leading to a conviction . . . or no legal judgment
whatsoever—as an adverse factor in evaluating an application for
discretionary relief”); accord Marquez v. Garland, 13 F.4th 108, 115 n.4
(2d Cir. 2021) (stating that “uncorroborated arrest reports are
admissible in the cancellation-of-removal discretionary analysis” and
citing approvingly to Matter of Thomas). Thus, this claim of error lacks
any basis in law.
In sum, because Alvarez’s challenge to the denial of
cancellation of removal fails to raise claims over which we have
jurisdiction or that have an arguable basis in law or fact, we must
dismiss this part of his petition.
42
CONCLUSION
To summarize, we here reiterate what we have previously
recognized summarily: removability under 8 U.S.C. § 1227(a)(2)(E)(ii)
is determined not by a categorical or modified categorical analysis of
the minimum conduct sufficient for a criminal conviction or even for
violation of a protection order. Rather, it is determined by a
circumstance-specific inquiry as to whether a court found a particular
alien’s conduct to violate a protection order then applicable to him,
and whether that violation pertained to a provision of the order
involving protection against credible threats of violence, repeated
harassment, or bodily injury to the person for whom the protection
order was issued. Because petitioner’s arguments to the contrary lack
any arguable basis in law or fact, and because his other challenges to
removability and to the denial of cancellation of removal are similarly
frivolous, we are hereby obliged to dismiss his petition under 28
U.S.C. § 1915(e)(2)(B)(i), and to deny all motions, both by the
petitioner and the respondent, as moot.
Accordingly, the petition for review is DISMISSED as
frivolous, and petitioner’s motions to proceed in forma pauperis, for
appointment of counsel, and for a stay of removal, as well as
respondent’s motion for expedited review, are all DENIED as moot.
43