Bianco v. Holder
2010 U.S. App. LEXIS 21552, 2010 WL 4069531, 624 F.3d 265 (2010)
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Rule of Law:
To determine if a prior conviction constitutes a 'crime of domestic violence' for removal purposes under 8 U.S.C. § 1227(a)(2)(E)(i), the government may prove the domestic relationship between the offender and victim using evidence outside the formal record of conviction. The domestic relationship does not need to be an element of the underlying criminal statute.
Facts:
- Libby Bianco, a citizen of Venezuela, became a lawful permanent resident of the United States on January 10, 2005.
- In April 2006, Bianco stabbed her husband, Mark Bianco.
- On October 27, 2006, Bianco was convicted in a Pennsylvania state court for aggravated assault for the stabbing.
- The Pennsylvania aggravated assault statute under which Bianco was convicted does not include a domestic relationship between the offender and victim as an element of the crime.
Procedural Posture:
- The Department of Homeland Security (DHS) initiated removal proceedings against Libby Bianco before an Immigration Judge (IJ), charging her as removable for committing a crime involving moral turpitude within five years of admission.
- The IJ sustained the charge and ordered Bianco removed.
- Bianco, as appellant, appealed to the Board of Immigration Appeals (BIA), which remanded the case to the IJ to determine the correct date of her 'admission' to the U.S.
- On remand, DHS lodged an additional charge of removability for conviction of a 'crime of domestic violence,' which has no five-year time limit.
- The IJ found the original charge was time-barred but sustained the new domestic violence charge and again ordered Bianco removed.
- Bianco appealed the IJ's second decision to the BIA.
- The BIA, as appellee, affirmed the IJ's removal order.
- Bianco then petitioned the U.S. Court of Appeals for the Fifth Circuit for review.
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Issue:
For the purpose of determining if an alien's prior conviction constitutes a 'crime of domestic violence' under 8 U.S.C. § 1227(a)(2)(E)(i), may the government introduce evidence outside the formal record of conviction to prove the domestic relationship between the alien and the victim?
Opinions:
Majority - Southwick, J.
Yes. To determine if a conviction qualifies as a 'crime of domestic violence' for removal purposes, immigration authorities may look to the specific circumstances of the offense and are not limited to the elements of the crime or the formal record of conviction. The statutory definition requires a 'crime of violence' that was 'committed by' a person in a domestic relationship, not a crime that has the domestic relationship as a formal element. The court relied on the Supreme Court's reasoning in Nijhawan v. Holder and United States v. Hayes, which established a 'circumstance-specific' approach for such inquiries. This approach is necessary because many states prosecute domestic abusers under general assault statutes. Limiting the inquiry to the elements of the offense would frustrate congressional intent to make aliens who commit domestic violence removable. Therefore, the government can use evidence generally admissible in immigration proceedings, such as police complaints and probable cause affidavits, to prove the domestic relationship by clear and convincing evidence.
Analysis:
This decision aligns the Fifth Circuit with the Supreme Court's shift toward a 'circumstance-specific' inquiry for predicate offenses in immigration law, as established in Nijhawan and Hayes. It explicitly rejects the Ninth Circuit's more rigid, pre-Nijhawan categorical approach from Tokatiy v. Ashcroft. This ruling significantly broadens the government's ability to establish that a prior conviction is a deportable offense by allowing it to look beyond the text of a criminal statute to the underlying facts of the crime. Consequently, aliens convicted under generic assault statutes can now be more easily deemed removable if the government can prove the victim had a domestic relationship with the perpetrator.
