Summary
The United States Court of Appeals for the Eighth Circuit denied Emmanuel Tiah’s petition for review of a Board of Immigration Appeals decision finding him removable under 8 U.S.C. § 1227(a)(2)(E)(ii) based on North Dakota convictions for violating protection orders. The court held that the actual protection orders were not required in the administrative record and that the record otherwise established removability by clear and convincing evidence. The court also rejected or declined to review Tiah’s remaining claims concerning termination of proceedings, cancellation of removal, due process, and a domestic-violence waiver.
Topics
Practice areas
Questions Presented
- Whether the government must submit the actual protection orders to establish removability under 8 U.S.C. § 1227(a)(2)(E)(ii).
- Whether the administrative record established by clear and convincing evidence that the protection orders satisfied the statutory requirements for removability under 8 U.S.C. § 1227(a)(2)(E)(ii).
- Whether the eventual dismissal of a protection order required termination of the removal proceedings.
- Whether the immigration judge violated Tiah's due process rights by failing to obtain a knowing and voluntary waiver of his right to counsel.
- Whether the court had jurisdiction to review the discretionary denial of cancellation of removal.
- Whether Tiah was prima facie eligible for a domestic-violence waiver under 8 U.S.C. § 1227(a)(7)(A).
Holdings
- The actual protection orders were not required to sustain a charge of removability under 8 U.S.C. § 1227(a)(2)(E)(ii); the relevant content of the orders may be established through other documentary evidence in the record.
- The record established by clear and convincing evidence that Tiah was removable under 8 U.S.C. § 1227(a)(2)(E)(ii).
- Removability under 8 U.S.C. § 1227(a)(2)(E)(ii) is determined through a circumstance-specific inquiry rather than the categorical or modified categorical approach.
- The later dismissal of the post-disposition no-contact order did not require termination of the removal proceedings because the statute does not require a valid no-contact order to remain in effect when immigration authorities take custody of the noncitizen or serve the Notice to Appear.
- The court lacked jurisdiction to review the discretionary decision denying cancellation of removal.
- Tiah did not establish a due process violation based on the immigration judge's handling of his right to counsel.
Key quotations
“We hold that copies of the actual protection orders were not required to determine Tiah’s removability under § 1227(a)(2)(E)(ii). We also hold that the record sufficiently established the elements of § 1227(a)(2)(E)(ii) by clear and convincing evidence.” (9)
“Accordingly, we hold that the actual protection order is not required to sustain a charge of removability under § 1227(a)(2)(E)(ii). Instead, the question is whether the record establishes, by clear and convincing evidence, that the requirements of § 1227(a)(2)(E)(ii) are satisfied to sustain the charge of removability.” (15)
“We read § 1227(a)(2)(E)(ii) to require that an alien’s removability be determined by the specific factual circumstances of the case and not on a categorical basis.” (11-12)
Factual background
Tiah, a Liberian native and citizen and lawful permanent resident, was charged in North Dakota with disorderly conduct involving fighting behavior and terrorizing with a dangerous weapon in a domestic-violence context. North Dakota courts issued pre-disposition and post-disposition no-contact protection orders concerning his wife, Rose Tiah. Tiah was twice charged with and pleaded guilty to violating those orders, including by coming within 300 yards of Rose and by contacting her. The actual protection orders were not included in the administrative record.
Procedural history
The Department of Homeland Security charged Tiah with removability under 8 U.S.C. § 1227(a)(2)(E)(ii) based on two North Dakota convictions for violating protection orders. The immigration judge sustained the removability charge by clear and convincing evidence and denied cancellation of removal. The BIA dismissed Tiah's appeal, and Tiah petitioned the Eighth Circuit for review.