Circumstance-Specific Proof of Protection-Order Violations May Rely on PSIs and Conviction Elements; Indictment Time Ranges Can Fix CIMT “Commission” Date for Stop-Time Purposes

Case: Moco v. Bondi, No. 24-1067 (2d Cir. Oct. 21, 2025) (summary order)

Court: U.S. Court of Appeals for the Second Circuit

Disposition: Petition for review DENIED

Note: This is a non-precedential summary order. It does not bind future panels but offers instructive guidance on recurring issues.

Introduction

This immigration case involves two central questions: (1) whether the Department of Homeland Security (DHS) proved by clear and convincing evidence that a lawful permanent resident is removable for violating a domestic-violence protection order under 8 U.S.C. § 1227(a)(2)(E)(ii); and (2) whether the noncitizen is ineligible for cancellation of removal because the “stop-time rule” cut off accrual of the required seven years of continuous residence upon the commission of a crime involving moral turpitude (CIMT), here New York stalking, before the seven-year mark.

Petitioner, Robert Moco, a native and citizen of Albania and lawful permanent resident admitted in July 2007, challenged an Immigration Judge’s finding—affirmed by the Board of Immigration Appeals (BIA)—that (a) he is removable for violating a protection order and (b) he is ineligible for cancellation because his stalking offense was committed before July 11, 2014 (seven years after admission), thereby triggering the stop-time rule. Although the court identified some agency misstatements about which protection order underlay a related contempt conviction, it held remand would be futile and ultimately denied the petition.

Summary of the Opinion

Removability (§ 1227(a)(2)(E)(ii)): The court affirmed that removability for violating a protection order is determined under a circumstance-specific approach and does not require a conviction. It approved reliance on a Presentence Investigation Report (PSI) to establish that the order was “issued for the purpose of preventing violent or threatening acts of domestic violence,” and on the elements of the New York first-degree criminal contempt statute (NYPL § 215.51(b)(ii)) to show a state court found a violation of the order’s portion that involves protection against credible threats of violence, repeated harassment, or bodily injury. Minor agency errors about which order was at issue were harmless; remand would be futile.
Cancellation of removal (§ 1229b(a)) and stop-time rule (§ 1229b(d)(1)): The court held it lacked jurisdiction to reweigh conflicting evidence on when the stalking CIMT was committed. It found no legal error in the agency’s conclusion that the offense began before July 11, 2014 based on an indictment alleging conduct from September 1, 2013 to August 17, 2014, corroborated by the PSI and the petitioner’s own affidavit. Thus, the stop-time rule cut off accrual of the seven-year period before it was satisfied, rendering Moco ineligible for cancellation.

Analysis

Precedents Cited and Their Role

Alvarez v. Garland, 33 F.4th 626 (2d Cir. 2022):
- Established that § 1227(a)(2)(E)(ii) removability is circumstance-specific, not categorical, and set a two-step inquiry:
  1. Was the individual subject to a court protection order issued to prevent violent or threatening acts of domestic violence?
  2. Did a court find the individual violated the portion of the order involving protection against credible threats of violence, repeated harassment, or bodily injury?
- Left open whether violating a “stay-away/no-contact” provision alone satisfies the second step. The Moco panel again avoided deciding that question because the petitioner abandoned a challenge to the agency’s threats-based theory of violation.
- Relevant here, Alvarez permits considering facts “necessarily determined” by the state court in view of the elements of conviction, even within a circumstance-specific inquiry.
Zerrei v. Gonzales, 471 F.3d 342 (2d Cir. 2006): Reiterated DHS’s burden to prove removability by clear and convincing evidence and the substantial-evidence standard on review.
Gurung v. Barr, 929 F.3d 56 (2d Cir. 2019): Authorized denial without remand where agency errors are tangential and the same result is inevitable—applied to the misidentification of the operative protection order.
Lanferman v. BIA, 576 F.3d 84 (2d Cir. 2009): Bar on collateral attacks on convictions in removal proceedings; supports relying on the minimum conduct necessary for conviction within a circumstance-specific analysis.
United States v. Zhong, 26 F.4th 536 (2d Cir. 2022) and California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90 (1981): Confirm that circumstantial evidence may satisfy evidentiary burdens; clear-and-convincing is below the criminal beyond-a-reasonable-doubt standard.
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Issues not argued are abandoned; used to treat as forfeited any challenge to whether violating a no-contact provision can meet § 1227(a)(2)(E)(ii)’s second prong.
Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025): Limits judicial review of cancellation determinations to constitutional claims, questions of law, and mixed questions (application of law to established facts), and characterizes reweighing evidence as unreviewable fact-finding.
Pereida v. Wilkinson, 592 U.S. 224 (2021): Confirms the noncitizen bears the burden to prove eligibility for relief such as cancellation.
Barton v. Barr, 590 U.S. 222 (2020): Clarifies the stop-time rule in cancellation cases; the “commission” of certain offenses triggers the cessation of continuous residence accrual.
Xiao Ji Chen v. DOJ, 471 F.3d 315 (2d Cir. 2006): Presumption that the agency considered all evidence absent a compelling contrary indication.
Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) and Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2007): Identify legal error where the agency applies the wrong standard or seriously mischaracterizes/overlooks key facts.
Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022) and Punin v. Garland, 108 F.4th 114 (2d Cir. 2024): Address issue exhaustion; generous construction of pro se filings satisfied exhaustion here.
Sunuwar v. Attorney General, 989 F.3d 239 (3d Cir. 2021): Held that no-contact provisions inherently involve protection against threats, harassment, or injury, aligning with the statutory text; the Second Circuit again did not reach that question.
Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) and Xue Hong Yang v. DOJ, 426 F.3d 520 (2d Cir. 2005): Explain that the court reviews the IJ’s decision as modified/supplemented by the BIA.

Legal Reasoning

I. Removability under § 1227(a)(2)(E)(ii)

The court reiterated the two-step, circumstance-specific framework from Alvarez and emphasized that DHS’s proof need not include a conviction for a protection-order violation; the statute turns on what a court protection order involved and what a court found regarding the violation.

Step 1 (purpose of the order): The IJ relied on a Presentence Investigation Report that detailed domestic cohabitation, threats to kill, and repeated threats beginning in September 2013, culminating in a March 2014 order of protection and subsequent violations in August 2014. That history constituted strong circumstantial evidence that the order was issued to prevent domestic violence or threats. The court found no contrary evidence undermining this conclusion. The IJ’s mistaken reference to an “arrest report” rather than the PSI was harmless, particularly because a PSI—created post-conviction—can be more probative than a bare arrest report about offense conduct.
Step 2 (nature of the violation): The IJ and BIA looked to the elements of Moco’s first-degree criminal contempt conviction under NYPL § 215.51(b)(ii). That statute requires, among other things, that the defendant, with knowledge of a protection order, intentionally place the protected person in reasonable fear of physical injury, serious physical injury, or death by repeated acts or a course of conduct. By its terms, the conviction necessarily established that a state court found conduct violating that portion of a protection order that “involves protection against credible threats of violence, repeated harassment, or bodily injury.” Even under a circumstance-specific approach, the agency may rely on facts “necessarily determined” by the convicted offense’s elements; removal proceedings do not permit collateral attacks on the conviction. The petitioner’s argument that a circumstance-specific inquiry forbids inferences from the conviction was properly rejected.
Agency error and futility of remand: Although the BIA misstated that multiple protection orders were in the record and failed to grapple with evidence pointing to a March 2014 order (while the record contained a November 2013 order that expired in May 2014), those inaccuracies were tangential. The record as a whole made the same outcome inevitable on remand, so the court declined to remand under Gurung.
Unresolved question preserved in Alvarez but not decided here: While Alvarez left open whether violating a “stay-away/no-contact” provision alone satisfies step two, the panel did not reach that question because Moco abandoned any challenge to the agency’s premise that the violation involved threats of violence.

II. Cancellation Eligibility and the Stop-Time Rule

To qualify for cancellation under § 1229b(a), a lawful permanent resident must show, among other things, seven years of continuous residence after admission. Under § 1229b(d)(1), the stop-time rule halts accrual upon service of a notice to appear or the commission of certain offenses, including CIMTs. The agency found, and the petitioner did not dispute, that stalking under NYPL § 120.60(01) is a CIMT. The only question was when that offense was “committed.”

Evidence of commission date: The indictment alleged stalking from September 1, 2013 through August 17, 2014. The PSI described repeated threats beginning in September 2013, and the petitioner’s own state-court affidavit recounted an incident in September 2013 followed by persistent harassment. Although the Uniform Sentence & Commitment form listed a single date—August 4, 2014—that could not plausibly apply to all four counts of conviction (including two second-degree contempt counts alleged to have occurred on separate dates). On this record, the agency reasonably concluded the offense was committed before July 11, 2014, stopping time short of the seven-year requirement.
Standard and scope of review: The court’s review of cancellation determinations is limited to constitutional claims, questions of law, and mixed questions applying legal standards to established facts. Challenges to the agency’s weighing of conflicting record evidence raise unreviewable factual disputes. Here, there was no legal error such as overlooking key evidence or applying the wrong standard. The presumption that the agency considered all evidence was not overcome.
Exhaustion preserved: Although the government argued non-exhaustion, the court held the issue was adequately preserved because Moco’s pro se BIA filing repeatedly asserted the later offense date, and the current arguments merely identified supporting record documents.

Impact and Practical Significance

Protection-order violations: proof without the order itself. The decision reinforces that DHS can meet its clear-and-convincing burden under § 1227(a)(2)(E)(ii) using circumstantial evidence, including PSIs and the elements of a related contempt conviction, even without introducing the full text of the protection order. For defense counsel, this underscores the need to squarely contest step one (the order’s domestic-violence purpose) and step two (the nature of the violating conduct) with contrary evidence and to avoid abandonment of arguments, particularly regarding the unsettled “no-contact” question.
Circumstance-specific inquiry complemented by conviction elements. Even though a circumstance-specific approach permits a broader evidentiary canvas, the court confirms that adjudicators may rely on “facts necessarily determined” by the conviction’s elements. Practically, this allows the government to use convictions like NYPL § 215.51(b)(ii) to satisfy step two without re-litigating the underlying conduct, while still permitting respondents to introduce additional, circumstance-specific evidence relevant to step one.
Remand and harmless error. Misstatements about the precise protection order did not compel remand where the record inevitably supports removability. Parties should therefore focus on building or undermining the inevitable logic of the record, not just identifying agency missteps.
Stop-time in course-of-conduct offenses. For offenses spanning a date range (like stalking), the earliest conduct within the charged period may establish the “commission” date for stop-time purposes. Indictments, PSIs, and even a respondent’s own statements can collectively support a pre-threshold commission date despite later-dated documents like sentencing forms. Defense practitioners should be cautious about relying on single-date sentencing forms for multi-count or continuing offenses and should, where possible, marshal specific evidence narrowing the offense to post-threshold conduct.
Jurisdictional limits on review of cancellation denials. The court reiterates that reweighing evidence is off-limits on petition for review. Preservation of legal arguments (misapplied standards, overlooked evidence) is essential to obtain review.
Open question remains. Whether a violation of a “stay-away/no-contact” condition—without more—satisfies § 1227(a)(2)(E)(ii)’s second prong remains unresolved in the Second Circuit. The Third Circuit (Sunuwar) says yes; this panel again had no occasion to decide.

Complex Concepts Simplified

Circumstance-specific vs. categorical approaches: A categorical approach looks only to the statutory elements of a conviction. A circumstance-specific approach allows adjudicators to consider specific case facts (e.g., PSIs, indictments) to determine whether statutory criteria are met. Section 1227(a)(2)(E)(ii) uses a circumstance-specific approach.
Presentence Investigation Report (PSI): A report prepared for sentencing that summarizes offense conduct and background. In immigration proceedings, PSIs can be probative circumstantial evidence of what occurred, though they are not convictions themselves.
Clear and convincing evidence: A standard requiring that the truth of the facts asserted be highly probable—more than a preponderance of evidence but less than beyond a reasonable doubt.
Crime involving moral turpitude (CIMT): A class of offenses involving inherently base, vile, or depraved conduct. Commission of a CIMT can trigger immigration consequences, including the stop-time rule for cancellation. The parties did not dispute that New York stalking under § 120.60(01) is a CIMT.
Stop-time rule: For cancellation of removal, continuous residence stops accruing when a notice to appear is served or when the noncitizen commits certain offenses (e.g., a CIMT). For continuing offenses, conduct within the charged range can set the commission date.
Abandonment and exhaustion: If an argument is not meaningfully raised in briefing, it is abandoned. Issues must be presented to the BIA before the court of appeals can review them; pro se filings are construed generously for exhaustion purposes.
Harmless error/futility of remand: Even when the agency errs, remand is unnecessary if the same result is inevitable on the existing record.

Conclusion

Although non-precedential, Moco v. Bondi offers robust guidance on two frequently litigated immigration issues. First, for protection-order violations under § 1227(a)(2)(E)(ii), DHS may satisfy its clear-and-convincing burden with circumstantial evidence such as PSIs and the elements of a related contempt conviction, establishing both the domestic-violence purpose of the order and the nature of the violating conduct. Errors about which particular order was violated do not mandate remand where the record compels the same outcome. Second, for cancellation eligibility, the “commission” date for a CIMT that spans time can be anchored by an indictment’s charged period and corroborating materials; a single-date sentencing form does not necessarily control.

Practitioners on both sides should take heed: respondents must preserve all nuanced arguments (especially the unresolved “no-contact” theory) and present concrete evidence challenging commission dates; the government can rely on circumstantial, post-conviction materials to meet its burdens. Going forward, this decision will likely be cited for its practical, circumstance-specific evidentiary approach to protection-order violations and for its pragmatic handling of stop-time timing disputes in course-of-conduct offenses—even as the Second Circuit leaves unresolved the broader question about whether violating a no-contact provision, standing alone, satisfies § 1227(a)(2)(E)(ii).