The Seventh Circuit Court of Appeals upheld the decision of an immigration court to deport Martin Garcia‐Hernandez, a citizen of Mexico who entered the United States in 2000 with no proper documentation. In 2010, he was arrested for violating a domestic protective order filed against him by Talavera, the mother of his children.
Garcia‐Hernandez pled guilty to the violation and was subsequently sentenced to 12 months of supervision. However, he was also found removable from the country under 8 U.S.C. 1182(a)(6)(A)(i).
Garcia‐Hernandez contested this order for removal under the provisions of 8 U.S.C.1229b(b), which stipulates that the attorney general may cancel a removal order for certain nonpermanent residents, provided they were continuously present in the United States for not less than 10 years and were of good moral character throughout such a period. Garcia‐Hernandez also argued that his removal would lead to “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
However, the Immigration Judge (IJ) presiding over his case ruled that Garcia‐Hernandez failed to qualify for relief of removal due to section 1227(a)(2)(E)(ii). The provision automatically eliminates undocumented immigrants from consideration if they were determined as having “engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury.”
Moreover, the charging document to which Garcia-Hernandez had pled guilty indicated that he had harassed Talavera, violating the injunction to stay away from her.
Appealing to the Board of Immigration Appeals (BIA), Garcia‐ Hernandez argued that § 1227(a)(2)(E)(ii) did not apply to his case, since the charging document did not explicitly state that he had threatened Talavera with violence, or caused bodily injury or repeated harassment. He added that his only violation was failing to comply with the protective order’s provision to stay away from his former spouse and children.
The BIA, however, upheld the IJ’s decision, pointing out that § 1227(a)(2)(E)(ii) isn’t necessarily limited to cases involving clear harassment or threats, but also includes violations of provisions designed to prevent these actions from actually happening.
The Seventh Circuit affirmed the BIA ruling, rejecting Garcia‐ Hernandez’s argument that the charging document did not explicitly state that he had made credible threats of cruelty or violence. The Court ruled that his arrest and conviction therefore makes him ineligible for relief of deportation.
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