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Szalai v. Holder

July 16, 2009

FERENC SZALAI, PETITIONER
v.
ERIC H. HOLDER JR.*FN1 RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals Agency No. A26-262-804.

Per curiam.

FOR PUBLICATION

OPINION

Argued and Submitted October 24, 2008 -- Portland, Oregon

Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and George H. Wu,*fn2 District Judge.

Concurrence by Judge Wu

OPINION

The question raised in this case is whether a judgment holding an individual in contempt for disobeying the "stay away" portion of a restraining order issued pursuant to Oregon's Family Abuse Prevention Act ("FAPA"), Oregon Revised Statutes §§ 107.700 to 107.735 (2007), qualifies as a violation of a "protection order" under 8 U.S.C. § 1227(a)(2)(E)(ii). Petitioner Ferenc Szalai, a native and citizen of Hungary and a lawful permanent resident of this nation, appeals from an order of the Board of Immigration Appeals ("BIA") dismissing his appeal and affirming the decision of an Immigration Judge ("IJ") which denied his request for cancellation of removal and other forms of relief. We have jurisdiction pursuant to 8 U.S.C. § 1252 and we deny the petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 3, 2002, Petitioner's ex-wife obtained a FAPA "Restraining Order to Prevent Abuse" from the Circuit Court for the State of Oregon, Washington County. That restraining order contained a number of separate provisions, including terms 1) enjoining Petitioner from "intimidating, molesting, interfering with or menacing" his ex-wife or any minor children in her custody (or attempting to do any of those things), 2) enjoining Petitioner from entering or attempting to enter various locations, including his ex-wife's residence and areas within 100 yards of his ex-wife or her residence, and 3) enjoining Petitioner from contacting or attempting to contact his ex-wife in person or through "3rd party contact" by phone, mail and e-mail (except "regarding parenting time" with his children). However, the restraining order was soon thereafter modified to permit Petitioner to pick up the children from or deliver them to his ex-wife's residence so long as he remained curbside and (except to put a child in a car seat) inside his vehicle.

On February 18, 2002, Petitioner returned his son to his exwife's residence and walked halfway up the driveway.*fn3 A "Judgment on Contempt Hearing" reflects that, on April 29, 2002, the Washington County Circuit Court found Petitioner, beyond a reasonable doubt, in "wilful contempt for violation of the restraining order" in connection with the February 18 incident.*fn4 In particular, the court found that Petitioner had vio-lated the order "by being within 100 yards of [Petitioner's ex-wife] not allowed by rest. order." The court sentenced Petitioner to serve 60 days in jail (with credit for time served and a suspension of the remainder), placed him on formal probation for a period of two years, ordered him to undergo treatment and counseling for anger, mental health and domestic violence, and required that any further exchange of children would take place at the police station in Beaverton, Oregon.

Over a year later, Department of Homeland Security authorities arrested Petitioner and served him with a Notice to Appear. The government charged Petitioner with violating the portion of a domestic restraining order that involved protection against credible threats of violence, repeated harassment, or bodily injury to his ex-wife, making him subject to removal under 8 U.S.C. § 1227(a)(2)(E)(ii).

The IJ assigned to the case terminated removal proceedings with prejudice upon determining that Petitioner's violation of the 100 yard stay away portion of the restraining order did not bring Petitioner within the meaning of section 1227(a)(2)(E)(ii). On appeal, the BIA disagreed, vacating the IJ's decision and remanding the matter. Petitioner asserts that, in reaching its decision, the BIA improperly relied upon a police report that the IJ had entered into evidence below. Petitioner refers to the following language from the BIA's ruling:

In the instant case, the record includes a copy of the police report[*fn5 ] respecting [Petitioner's] arrest. It shows that during a drop off of his child, [Petitioner] did not remain in his car, did not remain at curbside, but got out of his car and walked up halfway up [sic] his ex-wife's driveway . . . .

The BIA then concluded that Petitioner's conduct fell within the terms of section 1227(a)(2)(E)(ii).

Upon remand, Petitioner applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), and for - in the alternative - asylum, withholding of removal, and/or relief under the Convention Against Torture. The IJ denied all of Petitioner's requested forms of relief and ordered him removed to Hungary. Petitioner appealed the IJ's order and the BIA dismissed the appeal.*fn6

II. DISCUSSION

A. Standard of ...


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