Naji Antoine Tokatly v. John Ashcroft, Attorney General

Naji Tokatly, native of Syria and legal permanent resident, appeals the BIA’s streamlined decision finding that he was removable for having been convicted of a “crime of domestic violence,” INA § 237(a)(2)(E)®, 8 U.S.C. § 1227 (a)(2)(E). We hold that the Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990) categorical and modified categorical approach is applicable to section 237(a)(2)(E)®, and that neither the Board of Immigration Appeals (BIA or Board) nor this court may look beyond the record of conviction to determine whether the crime of which the alien was convicted was a “crime of domestic violence” within the meaning of the statute. Accordingly, we conclude that the Immigration Judge (IJ) erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner’s own admissions regarding the nature of his relationship with the victim, and in finding him removable under section 237(a)(2)(E)®.

A. Factual and Procedural Background

Naji Tokatly was first admitted to the United States in 1989 as a student, and in 1993 he adjusted his status to legal permanent resident. In 1997 he was convicted in Oregon state court on…