INA §237(a)(2)(E)(i): Crime of Domestic Violence

The INA defines a crime of domestic violence as a crime of violence under 18 U.S.C. §16 committed against a person who has one of the listed domestic or protected relationships to the offender.

The legal analysis should separate the crime of violence component from the relationship component because BIA precedent applies different methods to those questions.

Matter of Velasquez illustrates that a state domestic assault label does not automatically make the offense a federal crime of violence. The elements of the criminal statute must satisfy the applicable federal force definition.

After Sessions v. Dimaya invalidated §16(b) in the immigration context, §16(a) is central to many current domestic violence analyses. Circuit precedent involving the precise state statute must be checked.

The statute lists current or former spouses, co-parents, persons who cohabit or formerly cohabited as spouses, persons similarly situated to spouses under local law, and other persons protected from the offender's acts under domestic or family violence law.

The criminal statute does not always contain the relationship as an element. The immigration court may therefore need separate reliable evidence of the relationship.

The conviction's elements are compared with 18 U.S.C. §16(a). A statute that permits conviction for conduct below the required federal use, attempted use, or threatened use of physical force can be overbroad.

If the criminal statute is divisible, a limited record of conviction may identify the relevant alternative. Police allegations do not substitute for the categorical framework.

Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010), held that Virginia misdemeanor assault and battery against a family or household member was not categorically a crime of violence and therefore not categorically a crime of domestic violence.

The case remains a useful model: identify the minimum force required by the state offense before assuming a domestic assault conviction satisfies the INA.

Matter of Dang, 28 I&N Dec. 541 (BIA 2022), holds that the Supreme Court's physical-force construction in Johnson v. United States and Stokeling v. United States controls the §16(a) component of INA §237(a)(2)(E)(i). The lesser domestic-violence force concept discussed in United States v. Castleman does not control this immigration crime-of-violence inquiry.

The Board therefore held that the Louisiana misdemeanor domestic abuse battery statute before it was overbroad because it extended to mere offensive touching. Dang makes the minimum force element a central categorical question even when the state offense carries a domestic-violence label.

Matter of Boye, 29 I&N Dec. 826 (BIA 2026), did not redefine the elements of a crime of domestic violence. It held that a Georgia sentence “clarification” order issued by a different judge more than six years after the original sentence and after removal proceedings began was not valid for immigration purposes.

The sentence issue was material to the aggravated-felony charge because that ground required a one-year term of imprisonment. Ordinary removability under INA §237(a)(2)(E)(i), however, does not contain a one-year sentence requirement. Boye is therefore most useful as a post-conviction-record case: counsel relying on a later criminal order should examine the legal basis for that order and whether immigration law will recognize it.

Section 237(a)(2)(E)(i) itself does not require a one year sentence for a crime of domestic violence. A one year sentence can matter separately if DHS also alleges an aggravated felony crime of violence under §101(a)(43)(F).

Keep the two charges separate. A conviction may fail the aggravated felony sentence threshold yet still present a domestic violence question.

For domestic violence deportability, the defense should obtain certified criminal court records rather than rely on a rap sheet or case summary. The charging document, plea or verdict, judgment, sentencing order, and later modification orders can answer different immigration questions. The conviction record is central to the crime of violence analysis, while reliable circumstance evidence can establish the domestic relationship.

Organizing those evidence categories separately makes it easier to identify whether DHS has a defect in the offense classification, the relationship proof, or both.

Congress created a specific waiver for some battered respondents who are not and were not the primary perpetrator of violence. The waiver can reach crimes of domestic violence, stalking, and protection order violations when its statutory conditions are met.

Screen for the waiver early. Self defense, a protection order intended to protect the respondent, or a crime connected to the respondent's own battery or extreme cruelty can be central.

A vacatur based on a substantive or procedural defect may eliminate the conviction, while an order entered only to avoid immigration consequences may not. Matter of Boye adds current caution regarding later sentence clarification orders.

Obtain the complete motion and order rather than submitting only a one page amended judgment.

A sustained domestic violence deportability charge does not answer every relief question. Counsel should separately review cancellation, adjustment, waivers, asylum related protection, withholding, Convention Against Torture protection, VAWA remedies, post conviction options, and any other relief supported by the respondent's status and history. The conviction may also be analyzed as a CIMT, aggravated felony, child abuse offense, or discretionary negative factor.

A complete strategy should address removability, the §237(a)(7) waiver if available, and alternative relief rather than assuming one classification resolves the case.

A practical §237(a)(2)(E)(i) analysis should proceed in a fixed order: identify the conviction, test the crime of violence element categorically, determine the domestic relationship under H. Estrada, review the validity of later criminal orders, screen the §237(a)(7) waiver, and then analyze other charges and relief. Using the same sequence in the legal memorandum, exhibit list, and hearing preparation reduces the risk that a serious factual allegation will obscure a threshold statutory defect.

This sequence prevents the emotionally charged factual setting from replacing the statutory analysis.

A state offense may criminalize offensive touching, indirect conduct, or a mental state that does not satisfy the current federal crime of violence test. The minimum elements, not the domestic violence label, control the §16(a) component.

Supreme Court and circuit decisions interpreting physical force should be checked against the exact statute and version of conviction.

Matter of H. Estrada permits a circumstance specific inquiry into whether the victim had the required domestic relationship. Reliable evidence can include the charging document, plea record, protective order, family records, and undisputed testimony.

The relationship inquiry should still be disciplined. The government must prove a relationship listed by the INA, not merely that the parties knew each other.

A police report may describe both parties as aggressors or show mutual injuries. Those facts can matter to waiver eligibility and discretion, but they do not replace the categorical crime of violence analysis.

Counsel should separate what the conviction legally establishes from the broader relationship history offered for §237(a)(7) or discretionary relief.

Section 237(a)(2)(E)(i) is conviction based, while §237(a)(2)(E)(ii) can rest on a court determination without an immigration conviction. The categorical approach governs one part of the domestic violence analysis but Obshatko rejects it for protection order violations.

When both are charged, the evidence and legal standards should be briefed in separate sections.

DHS must establish both sides of §237(a)(2)(E)(i): a conviction that qualifies as a federal crime of violence and a covered domestic relationship. Those two inquiries use different methods. The crime of violence question is categorical, while Matter of H. Estrada permits a circumstance specific inquiry into the relationship.

The response should keep those tracks separate. A police report may help identify a spouse or partner for the relationship issue but cannot automatically supply a missing force element in the statute of conviction. Matter of Dang and Matter of Velasquez illustrate why the federal force analysis must be performed on the criminal elements themselves.

The criminal-law file should contain the statute and definitions, charging instrument, plea or verdict, judgment, and controlling cases on physical force. Relationship proof belongs in a second file and may include marriage records, shared-parentage evidence, household records, protective orders, or other reliable documents permitted by the circumstance specific inquiry.

Later sentence or conviction orders should be collected with the original criminal record. Matter of Boye underscores that the immigration effect of a later state order must be analyzed under federal immigration law rather than accepted solely because the state court changed the record.

The same incident may lead DHS to plead an aggravated felony crime of violence, a crime involving moral turpitude, child abuse, or a protection order violation. Those grounds have different elements and sometimes different proof rules. The domestic relationship that matters under §237(a)(2)(E)(i), for example, does not transform a nonqualifying offense into a federal crime of violence.

Section 237(a)(7) should also be screened where the respondent was a victim of abuse and the conviction or conduct is connected to that victimization. Waiver preparation can proceed without conceding the underlying removability analysis.

State domestic battery statutes may cover touching, offensive contact, reckless conduct, or other minimum conduct that does not satisfy the federal force requirement. The word domestic in the offense title therefore answers neither the categorical crime of violence question nor the precise relationship inquiry.

The opposite mistake is to demand that the domestic relationship always appear as an element of conviction. Matter of H. Estrada allows the relationship to be established through a circumstance specific inquiry, so the legal method differs for the two components of the charge.

The primary merits argument should first resolve whether the statute of conviction satisfies 18 U.S.C. §16 under controlling precedent. If it does, the next section can address whether DHS proved a qualifying domestic relationship. Any later vacatur or sentence order should then be evaluated under federal immigration rules, followed by a separate §237(a)(7) analysis if the facts support it.

This modular structure prevents favorable relationship evidence from being mistaken for proof of force and prevents waiver evidence from being treated as a concession that DHS met its initial burden.

The Immigration Judge should state whether the conviction categorically qualifies as a crime of violence and, independently, whether the evidence establishes the required domestic relationship. If either component fails, the domestic violence ground is not established.

If DHS also pleads a protection order or aggravated felony ground, the decision should identify those as separate statutory theories. Any §237(a)(7) waiver determination should follow the removability ruling and address its own eligibility and discretionary requirements.

Before hearing, confirm the criminal statute version, state cases defining its least conduct, the controlling federal force standard, and the permitted conviction record. On a separate checklist, confirm the documents DHS and the respondent rely on to establish or dispute the spouse, co-parent, cohabitant, or other covered relationship.

Protective orders and family records may overlap factually with both files, but counsel should identify the legal purpose for which each document is offered. That discipline reduces the risk that circumstance specific evidence will bleed into the categorical crime of violence analysis.

If the respondent may qualify for the domestic violence victim waiver, collect abuse history, police or court records, medical or counseling evidence, and materials showing the connection between victimization and the offense. That alternative can be prepared fully while the respondent continues to contest the crime of violence or relationship component.

Other relief should be screened separately for criminal bars, hardship standards, and discretionary factors. The merits brief should make clear which arguments deny removability and which assume a contrary ruling only for purposes of alternative relief.