C ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

749 

### Matter of H

. ESTRADA
, Respondent

Decided May 27, 2016

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

(1) In analyzing whether a conviction is for a crime of domestic violence under s ection 237(a)(2)(E)(i) of the Immigration and Nationality A ct, 8 U.S.C. § 1227(a)(2)(E)(i) (2012) , t he circumstance

- specific approach is properly applied to determine the domestic nature of the off ense

.
( 2 ) Where the respondent’s original sentence for his Georgia conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepanc y in he r original order will be given effect in determining whe th er the respondent was

sentence d t o a term of imprisonment of at least 1 year

.

FOR RESPONDENT: David S. Kennedy, Jr. , Esquire, Gainesville, Georgia

F OR THE DEPARTMENT OF HOMELAND SECURITY: Bianca H. Brown

, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY

, GUENDELSBERGER

, and MALPHRUS

, Board Member s

.

PAULEY , Board Member:

In a decision dated September 30, 2015, an Immigration Judge found the respondent removabl e under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) , as an alien convicted of a crime of violence aggravated felony

, and under section 237(a)(2)(E)(i), as an alien convicted of a crime of domestic
violence

. T he Immigration Judge pretermitted the respondent’s application
for cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3) (2012)

, b ased on his conviction for an aggravated felony

. The respondent has appeal ed from th at de cision. The appeal will be dismissed in part and sustained in part, and the record will be remanded to the Immigration Judge for further proceedings

. The respondent is a native and citizen of Guatemala who adjusted his
status to that of a lawful permanent resident on May 6, 1991 . On May 7, 1999, he was convicted of simple battery in violation of section
16

- 5

- 23(a)(2) of the Georgia Code Annotated pursuant to a plea of guilty

.C ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

750 The Department of Homeland Security (“DHS”) initi a ted these rem oval proceedings on the basis of the respondent’s conviction

. 1 On appeal, t he respondent argues that under the categorical approach, his conviction for simple battery is not for a crime of domestic violence
because the Georgia Code does not specify that he was in a domestic relationship with the victim . He also contends that s ince his sentence was

not to confinement for 1 year or more, his conviction is not for an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012)

.



### I. CRIME OF DOMESTIC VIOLENCE

We first consider whether the respondent’s conviction was for a crime
of domestic violence. The term “ crime of domestic violence ” in s ection 237(a)(2)(E)(i) of the Act me a n s

any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or who has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family
violence law s of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts un der the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

A determin at i o n whether a conviction is for a crime of domestic violence necessarily begins with an elements

- based approach, because a statute that lacks an element corresponding to a “ crime of violence, ” as defined in 18 U.S.C. § 16 (2012) , cannot be a crime of domestic violence.
See United States v. Castleman , 134 S. Ct. 1405, 1413 (2014). U nder the precedent of the United States Court of Appeals for the Eleventh Circuit, in
wh ose jurisdiction this case arises, simple battery in violation of section
16

- 5

- 23(a)(2) of the Georgia Code Annotated is a categorical crime of
violence , which is defined in § 16(a) as “ an offense that has as an element the use, attempted use, or threatened use of physical force

. ” Hernandez

v. U.S. Att’y Gen. , 513 F.3d 1336, 13 3 9

− 4 2 (11th Cir. 2008); see also
United States v. Yane s

- Cruz

, 634 F. App’x 247 (11th Cir. 2015) (finding that battery under section 16

- 5

- 2 3.1 (a) of the Georgia Code Annotated is a

1 The respondent was also convicted of sexual battery in violation of section 16

- 6

- 22.1
of the Georgia Code Annotated on May 7, 1999. T he DHS did not rely on t h at conviction as a basis for removability an d does not argue t hat it is pertinent on appeal

.C ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

751 categorical crime of violence ) . The respondent does not challenge the Immigration Judge’s determination that he was convicted of a categorical
crime of violence based on the elements necessary for such a conviction

. Although t he respondent does argue that the domestic nature of his
offense was not categorical ly established

, the categorical approach does not necessarily appl y to all aspects of th e determination whether a conviction is
for a crime of domestic violence . The Supreme Court has found that there
is a distinction between statutes that must be analyzed under the categorical approach and those that requir e a different approach because “words such

as ‘ cr ime, ’ ‘ felony, ’ ‘ offense ’ and the like sometimes refer to a generic
crime

. . . and sometimes refer to the specific acts i n which an offender engaged on a specific occasion. ” Nijhawan v. Holder , 557 U.S. 29, 33

− 34 (2009) (citing Chambers v. United States , 555 U.S. 122 , 125−26 (2009)). I f
the statut ory language refers directly to a generic crime, then the categorical approach applies , but if the statute c ontains qualifying language that
references the specific circumstances in which a crime was committed

, then

a circumstance

- specific analysis must be applie d

. Id. at 37

− 38.
T here is no uniformity among the circuits on th e issue of the prope r approach to be employed in analyz ing whether an offense is a crime of
domestic violence . T o our knowledge

, the Eleventh Circuit has not

a dd ress ed this matter

. However, t he more recent and persuasive authority supports the Immigration Judge’s conclusion that the question whether an
alien has been convicted of a crime of domestic violence should be assessed pursuant to a circumstance

- specific inquiry , which permit s recourse to all probative evidence. See Hernandez

- Zavala v. Lynch , 806 F.3d 259 , 266 (4th Cir. 2015) ( holding that the circumstance

- specific approach should apply in reviewing s ection 237(a)(2)(E)(i) of the Act ) ; Bianco v. Holder

, 624 F.3d 265, 27 2

− 7 3 (5th Cir. 2010) ( hold in g that “ a crime of domestic
violence need not have as an element the domestic relation of the victim to
the defendant

, ” which “ can be proven by evidence generally admissible for proof of facts in administrative proceedings ” ); see also Matter of E. Velasquez , 25 I&N Dec. 278, 280

− 81 n.1 (BIA 2010). But see Tokatly

v. Ashcroft , 371 F.3d 613 (9th Cir. 2004)

. T he Fourth Circuit’s decision, which was rendered after the Immigration Judge’s opinion in this case, relie d on the Supreme Court ’ s interpretation of “ nearly identical statutory text ” in the criminal context in United States v. Hayes , 555 U.S. 415 (2009), which it f ou nd “ to be
instructive. ” Hernandez

- Zavala , 806 F.3d at 266. In Hayes

, t he Court hel d
that the domestic nature of a conviction for a “misdemeanor crime of
domestic violence” need not be an element of the offense and may , instead

, be found by a factual inquiry. Hayes , 555 U.S. at 426. T he Fourth Circuit
found it significant that the Ninth Circuit’s contrary conclusion in TokatlyC ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

752 was rendered before the Supreme Court decided both Hayes and Nijhawan

, which expressly determined that a circumstance

- specific approach was appropriate ly applied to various provisions of the immigration

s t atute

. Consequently, the Fourth Circuit did “not find Tokatly ’s reasoning persuasive given the Supreme Court’s subsequent holdings .” Hernandez

- Zavala

, 806 F.3d at 267 ; accord Bianco , 624 F.3d at 2 69−70

. A circumstance

- specific inquiry into the domestic nature of an offense
is a limited o n e and “is not an invitation to relitigate the conviction itself.” Nijhawan

, 557 U.S. at 42 (quoting the Government’s brief)

. It “ involves the inspection of a single threshold fact”

— the relationship between the
offender and the victim

— which requires only a “straightforward and objective” determination by the adjudicator. Hernandez

- Zavala

, 806 F.3d
at 267 ; see also Hayes

, 555 U.S. at 427 n.9 . This is an objective fact that

can be readily ascertained by identifying the victim in question and his or
her domestic relation ship, if any, to the respondent. Such a limited assessment of the nature of the crime comports with due process and is
funda mentally fair, because a respondent h as t w o opportunities to contest the domestic nature of the offense

— first during the criminal proceedings and again at the removal hearing itself. See Nijhawan

, 557 U.S. at 42. The respondent argues that the circumstance

- specific approach cannot be applied to determine whether his convict ion for simple battery was for a “crime of domestic violence” because a separate battery statute, section
16

- 5

- 23.1(f) of the Georgia Code Annotated , punishes the more serious
offense of “family violence battery

. ” We do not agree that the existence of
a State statute expressly prohibiting domestic violence is dispositive as to whether a conviction i s for a crime of domestic violence under s ection 237(a)(2)(E)(i) of the Act

. This contention is based on the flawed assumption that the domestic nature of the crime must be described as an element of the underlying offense

. Rather, the focus of the circumstan ce specific approach is on the factual circumstances in which the crime w as committed. Additi o nally

, there is no indication that domes tic violence in Georgia is prosecuted only under section 16

- 5

- 23.1 (f) . As the Supreme Court has noted, domestic violence is routinely prosecuted under general assault and battery statutes, even in States with statutes that specifically proscribe domestic violence. See Hayes , 555 U.S. at 427; see also Castleman , 134 S. Ct. at 141 1

. Section 237(a)(2) (E) (i) of the Act contemplates a variety of offenses that may constitute crimes of domestic violence under the appropriate circumstances. What these crimes have in common, beyond the element of force, is the domestic relationship between the offender and the victim. Congr ess passed the domestic violence provision in 1996 when two

- thirds
of the S tates did not have laws that specifically proscribed domesticC ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

753 violence. Hayes

, 555 U.S. at 426; s ee also Castleman

, 134 S. Ct. at 1413. To treat the domestic violence circumstance as requiring a categorical approach as to the domestic nature of the crime would frustrat e the manifest purpose of the legislation by render ing it inapplicable in th e clear majority
of the S tates. See Hayes

, 555 U.S. at 426

− 27 ; Hernandez

- Zavala

, 806 F.3d
at 267 ; Bianco , 624 F.3d at 2 72

. We are not persuaded that Congress
would have intended this result

. See Luna Torres v. Lynch

, No. 14

- 1096,
2016 WL 2903424

, at *6 ( U.S. May 19, 2016) (reaffirming the principle
from Nijhawan and Hayes that the categorical approach should not be applied so as to produce the “haphazard” result of preventing the Act from applying to a significant majority of S tate offenses). We therefore conclude
that the circumstance

- specific approach is properly applied in a nalyz ing the
domestic nature of a conviction to determine if it is for a crime of domestic
violence

. Finally, the respondent argues that even if the circumstance

- specific approach applies, the evidence is insufficient to es tablish the domestic nature of his battery conviction. We disagree.
Under the circumstance

- specific approach in immigration proceedings, all reliable evidence may be considered

, including documents that compris e the formal “record of conviction.” See Matter of Garza

- Olivares , 2 6 I&N
Dec. 7 36, 742 n.4 (BIA 20 16 ); Matter of Babaisakov , 24 I&N Dec. 306,
320

− 21 (BIA 2007); see also Nijhawan

, 557 U.S. at 41

− 43 ; Bianco

, 624
F.3d at 272

− 73 ( stat ing that the Government may pro ve the domestic nature
of an offen se by “using the kind of evidence generally admissible before an immigration judge”). Such evidence may include police reports and records, provided that the information in the report is reliable. See Matter of Grijalva , 19 I&N Dec. 713, 72 1−2 2 (BIA 1988) ( hold ing that police reports are admissible in immigration proceedings and that their contents

are properly considered absent a claim that the respondent’s statements
were made involuntarily or that information was obtained as the result of egregious police misconduct); cf. Garces v. U.S. Att’y Gen. , 611 F.3d 1337,
1349

− 50 (11th Cir. 2010) ( finding that, absent corroboration, police reports

were not sufficient evidence to establish removability where the “ arrest reports state the police officers ’ conclusions

. . . rather than recording their observations of facts to show guilt ” ).
S everal documents in the record provide reliable evidence that the respondent and his victim were in a relati onship covered by section 237(a)(2)(E)(i) of the Act. T wo separate incident reports document t he actions giving rise to the respondent’s simple battery conviction. The first report names the respondent and his victim, listing the same address for
both

. I t details a statement the victim gave to the police

, in wh ich she identifies the respondent as her boyfriend. A second report, entitled aC ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

754 “Family Violence Incident Report,” was prepared by the police, as required
under Georgia law whenever an incident of family violence is investigate d.
See Ga. Code Ann. § 17

- 4

- 20.1(c) (West 1998) . This report a lso state s that the respondent and his victim s ha re d the same address

. In answer to the question of the “relationship of primary aggressor to victim(s)

, ” the

response select ed is “lives in the same household or formerly lived in
household

. ” See Ga. Code Ann. § 16

- 5

- 23.1(f) (West 1998) ( provi ding that

a battery committed between persons “ living or formerly living in the same
household” constitutes the offense of “ family violence battery”) ; see also Ga. Code Ann. § 16

- 5

- 23(f) (West 1998) ( employing the same language in
relat i o n to the offense of simple battery )

. T he individual identified as the
victim in these reports is also named on the criminal charging document
that was the basis of the responden t’s guilty plea. The respondent has offered no evidence to contest either the identity of
the victim or her relation ship to him. Furthermore, the evidence in the
record d emonstr ates that the respondent’s victim is “a person who is protected from [ the respondent’s ] acts under the domestic or family
violence laws of .

. . any State” within the meaning of section 237(a)(2)(E)(i) of the Act

. See Matter of E. Velasquez

, 25 I&N Dec. at 280
n.1 (discussing the “broad class of victims” included in section 237(a)(2)(E)(i) )

. C onsidering the totality of the evidence, we agree with the Immigration Judge that the DHS has established the domestic nature of the respondent’s offense by clear and convincing evidence and that t he respondent is t herefore removable under section 237(a)(2)(E)(i) based on
his conviction f o r a crime of domestic violence

.



### II

. C RIME OF V IOLENCE A GGRAVATED F ELONY

We must also decide whether the respondent’s simple battery offense i s an aggravated felony under s ection 101(a)( 43)(F) of the Act, as a “crime of violence . . . for which the term of imprisonment [was] at least one year

. ”
Since we have determined that the respondent’s conviction is for a “crime
of violence” under governing circuit law

, the remaining issue is whethe r he was sentenced to a term of imprisonment of at least 1 year.
The respondent’s conviction record in clude s a sentencing document on

a preprinted form that provides for only two possible sentences: imprisonment or imprisonment with some or all of the term being served on probation. The form order does not allow for the possibility of probation as

a separate punishment without a corresponding probated term of imprisonmen t. Th e distinction between this straight probation and a probated term of imprisonment is critical in this case because the Eleventh
Circuit has conclud ed that the phrase “term of imprisonment” encompassesC ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

755 any amount of a prison or jail sentence that is “ probated” under Georgia
law

. See United States v. Ayala

- Gomez , 255 F.3d 1314, 1317

− 19 (11th Cir. 2001). The sentencing judge filled out the form order by circling “Misdemeanor Sentence” and writing “12” in the field corresponding to the
total number of “m onths in the State Penal System” to be served. I n th e

s ame section, the judge wrote “On Probation” and crossed out the form language pertaining to the imposition of a probated sentence. T he language

o f the form order and the judge’s edits to that language make the meaning of the order unclear as to whether the respondent was sentence d to straight probation or a probated term of imprisonment. However, t he same judge that presided over the respondent’s sentencing hearing subsequently issued
an “Orde r Clarifying Sentence.” Th at order states in pertinent part:

No portion of the probationary ti me was subject to any term or period of
confinement whatsoever. This Court clarif ies that the entire probationary sentence was meant to be straight probation, not a probated confinement sentence. T he use
of fill

- in template sentencing sheets . . . would appear to indicate that Defendant was sentenced to a period of conf ine ment that was later probated, but this is not the

case.

The Immigration Judge found that the most reasonable interpretation of
the sentencing order is that it imposes a 12

- month probated term of imprisonment. H e concluded that th e clarifying order is not entitled to deference, citing United States v. Garza

- Men dez , 735 F.3d 1284 (11th Cir. 2013) . That case involved a clarification order issued by a State judge after the sentencing judge had ordered the defendant to serve 12 month s of
confinement . The Eleventh Circuit rejected the “subjective, interpretive
clarifi cation order

, ” noting that it was obtained from a different judge

, long
after entry of the original State sentence

, for the purpose of preventing
enhancement of the defendant’s sentence for unlawful reentry in Federal

court. I d

. at 128 9. In particular, the court was troubled by the fact that the original order was clear with respect to the imposition of a 12

- month

sentence to confinement. I d

. at 1288; see also Herrera v. U.S. Att’y Gen

., 811 F.3d 1298 (11th Cir. 2016) (concluding that an order purporting to clarify that the original sentence did not include “any confinement
whatsoever ” did not affect the initial order’s unambiguous imposition of house arrest as a condition of probation, which constituted a “ term of imprisonment” under the Act).
We do not read the Eleventh Circuit’s decision in Garza

- Mendez as rejecting all clarification orders, especially where the concerns raised by the

court are not present. In this case

, the sentencing judge entered t he
clarification order in an attempt to correct a n obvious discrepancy thatC ite as 26 I&N Dec. 749 (BIA 2016 ) Interim Decision #3863

756 exists on the face of her original order. As the judge who imposed the original sentence, s he is in the best position to ascribe meaning to the otherwise ambiguous alterations she made on the preprinted form order

. We therefore find it appropriate to give effect to the sentencing judge ’s
clarification order

. Our interpretation of the clarification order is consistent with section
17

- 10

- 1(f) of the Georgia Code Annotated , which imposes strict time limits with respect to a sentencing court’s ability to change or “modify” a

sentence. S ee also State v. Mohamed , 416 S.E.2d 358, 358 (Ga. Ct. App. 1992) (holding that once the defendant’s sentence ha d been served , the
court los t jurisdiction over him and th erefore lack ed authority to modify the

sentence ) . However, all courts in Georgia have the authority to correct
defects in their records at any time

. See State v. Hart , 587 S.E.2d 164, 166 (Ga. Ct. App. 2003) ( stating that the court had the “ inherent power to correct or conform an erroneous recording of [its] intended sentence ” )

. This inherent power also includes the authority to correct discrepancies that arise from the use of preprinted sentencing forms , as was the situat ion here

. See Hopper v. Williams

, 234 S.E.2d 525, 526 ( Ga. 1977)

. In this case , the sentencing judge had the authority to clarify the prior sentencing order to reflect her original intent

. See Rutland v. State , 82 S.E. 293, 295 (Ga. Ct. App. 1914) (“The power of amending records so as to make them speak the truth is of course inherent in all courts of record . . . .”).
A ccording to the clarifi catio n order, the respondent was sentenced to probation for a period of 12 months, none of which was the result o f a probated sentence of imprisonment. We therefore conclude that the respondent’s simple battery conviction i s not for an aggravated felony within the meaning of section 101(a)( 43)(F) of the Act because he was not sentenced to a term of imprisonment of at least 1 year. Consequently, the
conviction does not support a finding that the respondent is removable under section 237(a)(2)(A)(iii) of the Act or that he is statutorily inel igible for cancellation of removal pursuant to section 240A(a)(3) of the Act. Accordingly, the appeal will be sustained with respect to the Immigration Judge ’s finding that the respondent is removabl e under section 237(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony.
T he respondent’s appeal will be dismissed with respect to his removab i l ity under section 237(a)(2)(E)(i) as an alien convicted of a crime of domestic
violence. T he record will be remanded to give the respondent an opportunity to seek relief from removal

. 

### ORDER: The appeal is dismissed in part and sustained in part

. 

### FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.