Cite as 25 I&N Dec. 507 (BIA 2011) Interim Decision #3714
1 The Notice to Appear indicates that the respondent’s last name is Strydum, but pursuant
to a discussion during the proceedings, the Immigration Judge corrected it in her decision
to Strydom.
507
Matter of Rudolf STRYDOM, Respondent
Decided May 24, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for violation
of the no-contact provision of a protection order issued pursuant to section 60-3106 of the
Kansas Protection from Abuse Act constitutes a deportable offense under section
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2006).
FOR RESPONDENT: Leon Versfeld, Esquire, Kansas City, Missouri
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated July 8, 2010, an Immigration Judge found the respondent
removable for violation of a protection order under section 237(a)(2)(E)(ii)
of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2006),
and ordered him removed from the United States. The respondent has
appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of South Africa who entered the
United States in 2004 as a nonimmigrant and adjusted his status to that
of a lawful permanent resident on March 11, 2008. The District Court
of Kiowa County, Kansas, issued a temporary order on April 28, 2010,
granting the respondent’s wife protection from abuse pending a hearing
scheduled for May 26, 2010. Included in that order was a requirement that the
respondent not contact his wife or request another person to contact her, either
directly or indirectly. On May 6, 2010, the respondent was convicted under
section 21-3843 of the Kansas Statutes Annotated of violating the terms of the
protection order and of harassment by phone under section 21-4113(a)(2).
In a Notice to Appear (Form I-862) dated May 12, 2010,1
the Department
of Homeland Security charged the respondent with removal under
section 237(a)(2)(E)(ii) of the Act as an alien who had violated that portionCite as 25 I&N Dec. 507 (BIA 2011) Interim Decision #3714
2 Section 21-3843 was repealed on May 13, 2010, effective July 1, 2011, and was replaced
by section 21-5924. See 2010 Kansas Laws, ch. 136, §§ 307, 308 (West).
508
of a protection order that involved “protection against credible threats
of violence, repeated harassment, or bodily injury” to the person for whom the
protection order was issued. The respondent filed a motion to terminate the
proceedings, arguing that his attempt to make a phone call to his wife’s home
in violation of the no-contact provision of the temporary protection order did
not fall within section 237(a)(2)(E)(ii). The Immigration Judge determined
that because each part of the protection order was entered to protect
the respondent’s wife and children from future abuse at his hands, the
respondent’s violation of the no-contact provision rendered him removable.
We review the Immigration Judge’s determination regarding this question
of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
Our analysis begins with looking at two statutes that are critical for deciding
this case. The first is section 237(a)(2)(E)(ii) of the Act, the ground
of removal, which provides:
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 independent action or as a pendente lite order in another
proceeding.
The second is the State statute. The respondent was convicted of violating
section 21-3843 of the Kansas Statutes Annotated,2
which provides,
in pertinent part, as follows:
(a) Violation of a protective order is knowingly or intentionally violating:
(1) A protection from abuse order issued pursuant to K.S.A. 60-3105, 60-3106 and
60-3107, and amendments thereto;
(2) a protective order issued by a court or tribunal of any state or Indian tribe that
is consistent with the provisions of 18 U.S.C. 2265, and amendments thereto;
(3) a restraining order issued pursuant to K.S.A. 38-2243, 38-2244 and 38-2255
and K.S.A. 60-1607, and amendments thereto;
(4) an order issued in this or any other state as a condition of pretrial release,
diversion, probation, suspended sentence, postrelease supervision or at any other time
during the criminal case that orders the person to refrain from having any direct
or indirect contact with another person;
(5) an order issued in this or any other state as a condition of release after
conviction or as a condition of a supersede as bond pending disposition of an appeal,Cite as 25 I&N Dec. 507 (BIA 2011) Interim Decision #3714
509
that orders the person to refrain from having any direct or indirect contact with
another person; or
(6) a protection from stalking order issued pursuant to K.S.A. 60-31a05
or 60-31a06, and amendments thereto.
The respondent’s conviction does not specify under which part of section
21-3843 he was convicted. Moreover, the statute included violations of court
orders that would not be covered by section 237(a)(2)(E)(ii) of the Act.
For example, a restraining order issued pursuant to section 60-1607 of the
Kansas Statutes Annotated pertains to orders involving the disposition
of property pending final judgment on a petition for divorce, so a violation
of section 21-3843(a)(3) would not be a removable offense under section
237(a)(2)(E)(ii). Therefore the respondent’s conviction for violating section
21-3843 is not categorically a conviction for an offense that would render him
removable. See Taylor v. United States, 495 U.S. 575 (1990). Thus, we will
apply the modified categorical approach to this case and consider the record
of conviction. Id.; see also Matter of Milian, 25 I&N Dec. 197, 199-200 (BIA
2010).
The record of the respondent’s conviction contains a copy of the
“Temporary Order of Protection from Abuse” entered on April 28, 2010,
which indicates that it was issued pursuant to section “60-3101 et seq.” of the
Kansas Statutes Annotated. Thus, we conclude that the respondent’s
conviction was pursuant to section 21-3843(a)(1) of the Kansas Statutes
Annotated, which relates to “protection from abuse” orders issued pursuant
to sections 60-3105, 60-3106, and 60-3107.
There is no dispute that the protection from abuse order is a “protection
order” within the meaning of section 237(a)(2)(E)(ii) of the Act. There is also
no dispute that the Kansas court determined that the respondent violated the
protection order. Accordingly, the sole issue in this case is whether the
Immigration Judge properly determined that the respondent’s violation of the
protection order “involves protection against credible threats of violence,
repeated harassment, or bodily injury to the person or persons for whom the
protection order was issued” within the meaning of section 237(a)(2)(E)(ii)
of the Act.
The respondent argues that the record of conviction is insufficient
to establish his removability under section 237(a)(2)(E)(ii). Specifically,
he asserts that since he may only have violated the “no-contact” provision
of the protection order, it is not clear that he engaged in conduct prohibited
by the Act. The respondent’s contention that a “mere violation” of the
“no-contact” provision is not covered by section 237(a)(2)(E)(ii) is not
persuasive.
According to section 60-3101(b) of the Kansas Statutes Annotated, the
Kansas Protection from Abuse Act should be “liberally construed to promoteCite as 25 I&N Dec. 507 (BIA 2011) Interim Decision #3714
3
Section 60-3107(a)(1) of the Kansas Statutes Annotated also permits a court to grant
a restraining order to prevent abuse, and under section 60-3105, a judge can grant such relief
on an emergency basis.
510
the protection of victims of domestic violence from bodily injury or threats
of bodily injury and to facilitate access to judicial protection for the victims.”
Pursuant to section 60-3106(b), a Kansas court can issue a temporary relief
order pending a hearing when it is deemed “necessary to protect the plaintiff
or minor children from abuse.”3
“Immediate and present danger of abuse”
constitutes “good cause” for issuance of such an order under that section.
Abuse is defined in sections 60-3102(a)(1) and (2) and includes acts between
“intimate partners or household members” that involve intentionally
attempting to cause or causing bodily injury, or “placing, by physical threat,
another in fear of imminent bodily injury.” Thus, a temporary relief order
is only entered pursuant to section 60-3106 where there has been an abusive
incident or there is an immediate danger of physical abuse, from which the
court can offer protection.
One important form of protection provided to the court by the Kansas statute
is the authority to issue temporary protection from abuse orders requiring the
offender to stay away from the victims. Thus, the respondent’s attempt
to minimize his violation as one of mere “contact” is not persuasive because
the primary purpose of a no-contact order is to protect the victims of domestic
abuse by the offender. In other words, the offender is ordered not to have any
contact so that the victims will not be victimized again. The no-contact
provision in the respondent’s temporary protection order was one that
“involves protection against credible threats of violence, repeated harassment,
or bodily injury” within the meaning of section 237(a)(2)(E)(ii) of the Act.
Our reasoning and analysis is supported by two decisions from the
United States Court of Appeals for the Ninth Circuit. In Szalai v. Holder,
572 F.3d 975 (9th Cir. 2009), and Alanis-Alvarado v. Holder, 558 F.3d
833 (9th Cir. 2009), the Ninth Circuit affirmed our conclusion that a violation
of a no-contact provision was covered by section 237(a)(2)(E)(ii) of the Act.
In Alanis-Alvarado, the court specifically stated that an injunction against
telephoning a domestic partner in the context of a domestic violence protective
order “‘involves protection against’ violence, threats, or harassment, even
if it is possible that the [offender’s] violative conduct did not independently
constitute violence, threats, or harassment.” Alanis-Alvarado v. Holder,
558 F.3d at 839-40 (quoting section 237(a)(2)(E)(ii) of the Act). The court
emphasized that there was no requirement in section 237(a)(2)(E)(ii) that the
respondent “actually had engaged in violent, threatening, or harassing
behavior,” noting that it only requires a violation of “the portionCite as 25 I&N Dec. 507 (BIA 2011) Interim Decision #3714
511
of a protection order that involves protection against” credible threats of such
conduct. Id. at 839 (internal quotation marks omitted).
In Szalai, the Ninth Circuit relied on its reasoning in Alanis-Alvarado
to hold that the petitioner’s violation of the “100 yard stay away provision”
in a restraining order issued pursuant to the Oregon Family Abuse Prevention
Act was one that involves protection against credible threats of violence,
repeated harassment, or bodily injury. Szalai v. Holder, 572 F.3d at 982. The
court therefore concluded that such a no-contact provision was sufficient
to satisfy section 237(a)(2)(E)(ii) of the Act.
We recognize that not all aspects of a protection order will trigger section
237(a)(2)(E)(ii). The Ninth Circuit noted that “provisions requiring attendance
at and payment for a counseling program or requiring the payment of costs
for supervision during parenting time” will not be covered by section
237(a)(2)(E)(ii). Szalai v. Holder, 572 F.3d at 980. The respondent does not
argue that his violation involved such a provision. Moreover, the record shows
that he violated the no-contact provision in the protection order. We therefore
agree with the Immigration Judge’s conclusion that the respondent
is removable under section 237(a)(2)(E)(ii) of the Act. Since the respondent
has not applied for any relief from removal, his appeal will be dismissed.
ORDER: The appeal is dismissed.