## Facts

- Libby Bianco, a Venezuelan citizen, was admitted to the United States in 2001 as a nonimmigrant and became a lawful permanent resident on January 10, 2005.
- In April 2006, Bianco stabbed Mark Bianco; in October 2006, she was convicted in Pennsylvania of aggravated assault and possessing an instrument of crime under 18 Pa. Cons. Stat. §§ 2702(a)(4), 907.
- DHS initiated removal proceedings, first charging removability for a crime involving moral turpitude (CIMT) committed within five years of “admission” under 8 U.S.C. § 1227(a)(2)(A)(i).
- The Immigration Judge (IJ) sustained the CIMT charge by treating Bianco’s 2005 adjustment to lawful permanent resident status as the relevant “admission.”
- On appeal, the Board of Immigration Appeals (BIA) applied circuit precedent rejecting the view that adjustment of status is an “admission” for this purpose and remanded for a determination of the date of admission.
- On remand, DHS added a new charge: removability for conviction of a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i), which has no five-year limitation.
- To establish the qualifying domestic relationship (that the victim was Bianco’s spouse), the IJ relied on evidence beyond the formal record of conviction and ordered removal; the BIA affirmed.
- Bianco petitioned for review in the Fifth Circuit.

## Issues

1. Whether a conviction qualifies as a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i) when the underlying statute of conviction does not include a domestic relationship as an element.
2. Whether the agency may consider evidence outside the record of conviction to prove the victim’s qualifying domestic relationship to the noncitizen.
3. Whether the BIA’s remand limited proceedings to determining the date of admission, thereby barring DHS from adding a new domestic-violence charge on remand.

## Decision

- The Fifth Circuit denied the petition for review and upheld the removal order.
- The court held that the domestic-relationship component of 8 U.S.C. § 1227(a)(2)(E)(i) need not be an element of the predicate offense.
- The court approved the agency’s use of evidence beyond the statute and formal record of conviction to determine whether the victim had the requisite domestic relationship to the offender.
- The court held the BIA did not restrict the remand so as to prevent DHS from lodging an additional removability charge.

## Legal Principles

- Under 8 U.S.C. § 1227(a)(2)(E)(i), removability for a “crime of domestic violence” requires (1) a conviction for a “crime of violence” as defined in 18 U.S.C. § 16 and (2) that the victim bear a qualifying domestic relationship to the offender.
- The qualifying domestic relationship is a circumstance-specific factual requirement and need not appear as a statutory element of the offense of conviction.
- In determining the victim’s domestic relationship to the offender, immigration adjudicators may consider reliable evidence beyond the elements of the offense and beyond the formal record of conviction.
- Unless the BIA expressly limits the scope of a remand, DHS may raise additional grounds of removability before the IJ on remand.

## Conclusion

The Fifth Circuit upheld Bianco’s removability on the domestic-violence ground, ruling that the victim’s domestic relationship need not be an element of the predicate crime and may be proven through evidence outside the record of conviction, and further holding that the BIA’s remand did not bar DHS from adding the new charge.


Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010)