Alanis-Alvarado v. Mukasey

ALANIS-ALVARADO, Carlos

Petitioner, MUKASEY, Attorney

Michael B.

General, Respondent.

No. 06-72369.

United States Court Appeals,

Ninth Circuit.

Argued and Submitted May 2008. Sept.

Filed Rios, III,

Manuel F. Lesley Irizar- ry-Hougan, Cantor, P.S., Rios Seattle, WA, for petitioner. AL- ALANIS by CARLOS committed Liti- Immigration of Bless, Office Jesse place the time and VARADO, who De- Division, States Civil gation, unlawfully willfully, aforesaid, did D.C., for last Justice, Washington, of

partment ob- a Court knowingly violate and respondent. to Section tained the State Family Code of the California. convictions, government

After those to The Notice Appear. to a Notice ALARCÓN, P. SUSAN Before: two because asserted Appear B. GRABER, and JOHNNIE un- was removable convictions,1Petitioner Judges. RAWLINSON, Circuit INA: provisions different three 1227(a)(2)(A)(ii),for hav- GRABER; Partial 8 U.S.C. by Judge Opinion under involving Judge crimes two Dissent Partial convicted ing been Concurrence 8 U.S.C. under turpitude; moral RAWLINSON. convict- 1227(a)(2)(E)®, having been for GRABER, Judge: Circuit violence; and domestic crime of a ed of conviction a whether decide We must hav- for 8 U.S.C. 273.6, section Penal under California a violating domestic convicted ing been pur- violating protective a for order. Family Code California suant to judge immigration hearing, a After violation qualifies categorically ap- Petitioner removed. ordered order” “protection Ap- Immigration Board pealed Immigration 1227(a)(2)(E)(ii) of Peti- (“BIA”). BIA held that peals (“INA”). hold that Nationality Act We qualified convictions tioner’s therefore, petition deny the and, 1227(a)(2)(E)®), expressly but review. sections other two to reach declined Appear. in the Notice charged the INA PROCEDURAL AND FACTUAL timely petition filed then HISTORY court. with review ais Alanis-Alvarado Carlos of Mexico. and citizen native 46-year-old OF REVIEW STANDARD resident permanent a lawful He became par whether de novo review Twice in 1990. States the United a re law is under state conviction ticular 273.6 violating pleaded Coronado-Durazo offense. movable The relevant Code. Penal Cir.1997). 1322, 1324 INS, 123 F.3d are identical the two parts of as follows: and read DISCUSSION 7/28/03] [or about On or 8/14/03 petition To determine OR- COURT of DISOBEYING crime the statuto fits within er’s 273.6 of DER, of Section in violation offense, we a removable MISDEMEANOR, ry Code, a those them; argues party and neither of three addi- evidence record contains 1. The ad- the issue relevant Those convictions. state tional Appear; the here. the Notice appear on dress did not rely on Appeals did Immigration Board use the “categorical approach” and “modi- domestic including temporary fied approach” that were first or final orders issued civil or criminal Taylor States, announced in v. United (other courts support than or child cus- 575, U.S. 110 S.Ct. 109 L.Ed.2d 607 tody or provisions) orders whether ob- (1990). v. Ashcroft, Ferreira by tained filing an independent action or Cir.2004). Under cate- pendente as a lite order pro- in another gorical approach, if the range “full of con- ceeding. duct” by covered the state statute falls Petitioner was convicted of -violating Cali- scope of the INA provision, then fornia Penal 273.6, Code section which petitioner’s conviction is categorically a reads relevant part: (internal removable offense. Id. quotation omitted). marks not, If proceed “we then (a) Any intentional and knowing viola- ” ato categorical ‘modified approach.’ tion of a order, as defined in Under the modified categorical approach, Section 6218 of Family Code, or of we look beyond the statutory text to “a an order issued to Section narrow, specified set of documents that 527.6 or 527.8 of the Code of Civil Proce- ... guilty (internal includes pleas.”2 Id. dure, or Section 15657.03 of the Welfare omitted). quotation marks If the informa- Institutions ais misdemeanor tion in those documents does establish punishable by a fine of not more than petitioner’s conviction meets the one ($1,000), thousand dollars byor im- requirements of the INA provision, then prisonment in a county jail for not more the conviction is not a removable offense year, than one or by both that fine and under that provision. Id. imprisonment. The BIA held that Petitioner’s state con- Examining the “full range of conduct” pro- victions meet the requirements of 8 U.S.C. 273.6, scribed con- is titled “[v]iola- viction does tors of not suffice categori- orders” and reads in full: cal approach. The range of orders that Any alien who any time after ad- may be issued under the state mission statute is enjoined broad, and the statute plainly encompasses issued a court and whom the orders the scope outside the INA provi- determines has engaged con- instance, sion. For duct that some violates issued pro- under procedure civil code or welfare code have nothing to do threats of with domestic peated harassment, See, violence. bodily e.g., or injury to Cal.Civ.Proc.Code 527.6(c) person or persons (authorizing whom to issue a protection order temporary was is deporta- restraining order against any ble. For purposes of clause, person, regard without to the existence or term “protection order” any means in- nature relationship between the assail- junction the purpose pre- victim). ant and the Indeed, govern- venting or violent threatening acts of ment that a concedes conviction under Cal- 2. We recently granted en banc review to con- may examine. See Shepard v. sider what States, 13, 26, be used in the 544 U.S. 125 S.Ct. categorical approach. United (2005) States L.Ed.2d 205 (specifically identifying a Snellenberger, Cir.2008). 519 F.3d 908 guilty plea as a document on which a court here, The documents involved pleas, may rely). danger There is no that Snellen- safely fall range within the of documents that berger will affect this case. (2003).3 Section § 6320 Fam.Code Cal. 273.6 ifornia Family Code the California test. satisfy the subject to a vides, “[a] part, ‘modified “proceed ” in Section order, as defined Ferreira, approach.’ own, purchase, possess, shall at 1095. or- while a firearm receive con- that Petitioner record Fam.Code effect.” Cal. violating an victed, specifically, more 6389(a). “order Family Code.” the [California] of 6389 and 6389 that section agree parties The a whether determine must therefore We issue a itself, a court to not, authorize order violating an Instead, a whenever order. protective the of and 6389 6320 sections order, the protective a issues court necessarily meets Code Family California auto- triggered 6389 of sions section provision. INA the of requirements the is confirmed matically. Our the ban- under rides inquiry this Although order” “protective definition the approach,” categorical “modified the ner includes which Family only which tell us here pleas sections issued only orders authorized of statutes combination § 6218. Fam.Code Cal. and 6322. Our violated. order sum, although categorical inquiry modified “order issued violated he state whether inquiry: to a identical of the 6889 Section pursuant to the “full embraces provision INA Code,” add- (emphasis Family [California] state stat- those of conduct” range order protective ed), conclude we It is a kind utes. only to section issued was a second- nonetheless, because inquiry auto- applied then that section inquiry. tier matically. Family the California Section state the various out Having sorted in full: states question statutes, turn order parte an ex may issue The require meet molesting, at- from party a enjoining provision. the INA ments threatening, stalking, striking, tacking, meet do not his argues harassing, battering, assaulting, sexually First, requirements. statute’s of the two limited but not including, telephoning, “enjoined under he was argues described calls as telephone to, annoying order.” a Code, de- of the 653m in Section it provision The INA contacting, property, personal stroying pur “For order”: “protection defines self or by mail indirectly, directly or either ‘protection clause, term of this poses dis- specified otherwise, coming for the issued injunction any means order’ of the peace of, disturbing tance or threaten violent preventing purpose and, in discretion party, other Id. ....” of domestic acts cause, ing good showing of court, on a or “protective argues mem- or household family named other the California under section der” bers. All ref- 2007. amended was convicted. ver- when Petitioner are to the erences when effect version in it was because sion Family Code does not meet the federal order Petitioner violated. every But por- “protection because, order” tion of a protective order issued under order can section 6320 “involves be issued for a purpose other than “pre- repeated venting violent or threatening acts of do- harassment, or bodily injury.” 8 U.S.C. mestic violence.” disagree. 1227(a) (2)(E) (ii).

Section 6320 is “Domestic we quoted in full Violence Prevention Act.” Cal. above, Fam.Code authorizes a enjoin court to a wide § 6200. The Code defines “protective range of conduct. Most of that conduct order,” part, “[a]n described (e.g., “molesting, attacking, striking, stalk- Section 6320 enjoining specific acts ing, threatening, sexually assaulting, bat- abuse” added). 6218 (emphasis A tering, harassing”) clearly [and] be only upon threats, or harassment. Petition- showing of proof past “reasonable act points er out that some conduct, or acts of abuse.” Id. provi- The though, is inherently violent, not threaten- sions of section 6389—-which applied to ing, or harassing in nature. True enough; protective Petitioner via pro- acts, some such as telephoning one’s do- orders — hibit, among other things, the ownership partner mestic or coming a speci- Thus, a firearm. 6320 is aof fied distance her, of him or do not typically statute in entirety, its aims to pre- violence, constitute threats, or harassment. violence, vent domestic authorizes a Indeed, court such conduct is entirely expected enjoin acts, abusive upon a showing in normal interactions. But Petitioner’s past abuse, act of and automatically pro- argument ignores the crucial context: At hibits the ownership of a firearm. There conduct, time of his subject ato is no doubt that protective orders issued protective order. above, As noted courts have, section 6320 as at least may protective issue a order only upon a “purpose,” one “preventing violent or showing of past act of abuse. Cal. Fam. threatening acts of domestic violence.” 8 6300. When a court enjoined has § 1227(a)(2)(E)(ii). U.S.C. from, person for example, telephoning his domestic partner in the context of a

Petitioner next argues that his convic- domestic protective order, the in- tions fail to meet requirement that junction protection involves against “the [state] determine[d] [that Peti- and harassment. engaged tioner] has in conduct that vio- portion lates the protection order that Under the Taylor analysis, we must be protection against credible threats able conclude that the “full range of violence, repeated harassment, or bodily conduct” that have commit- injury to or persons for whom ted falls within the scope of the INA protection order was issued.” Id. Peti- sion. We acknowledge that tioner argues that, because it is unknown order may enjoined have Petitioner from exactly portion what or- making even a single telephone call to his violated, der he requirement that partner, and Petitioner may have placed a met. We agree that the record does not non-threatening and non-harassing tele- portion what phone call.4 If the INA provision required 4. We do with so Supreme hesitation. state statute creates a crime outside the ge- Court has admonished us that "to find that a neric definition of a listed crime in a federal toas proof additional require ute would actu- that find the state order was protection portion” threatening, or “what violent, engaged ally had conclude violated. behavior, harassing in- however, authorizes qualify Family do Petitioner’s violent, against protection only for provision INA junction But the categorically. harassing the state behavior. threatening, something different: quires convic- “the violated conclude court conclude in 8 that involves defined offenses as qualify protection tions portion threats, or against” U.S.C. 1227(a)(2)(E)(ii) U.S.C. harassment. DENIED. for review Petition above, an added). discussed As (emphasis call telephone making a injunction RAWLINSON, Judge, Circuit sec- acts in enumerated (and other all dissenting part: part and concurring in vi- against” 6320) “involves tion harassment, if it is even threats, or olence, majority I concur conduct violative that Petitioner’s possible convic- concluding constitute independently did violations not constitute tions do threats, harassment. violations designated sum, Congress analyzed 1227(a)(2)(E)(ii)when removable certain articulated categorical approach 1227(a)(2)(E)(ii). § 575, offenses 600- States, 495 U.S. v. United Taylor that reach the limited Congress 607 2143, L.Ed.2d 109 601, 110 S.Ct. to violations restricting it however, by sion, that from dissent (1990). respectfully I aimed order protection aof portion aof concluding majority opinion portion harassing behav- threatening, and violent, vio- constitute that Petitioner’s that interpretation, our ior. Under the protection aof lations instance, For empty. is not striction articulated approach modified to order the court allow “[m]any states id. See in Taylor. children spouse the for support un- recognizes, majority theAs Rut- 1 H. Arnold order.” protection the approach, the der 6.02[5],p. § and Practice kin, Family Law must record documents pertinent see, Or.Rev.Stat. e.g., (2007); 6-64 meets conviction Petitioner’s establish or- 107.718(l)(h) (allowing protection U.S.C. 8 requirements assis- monetary award an include der case, perti- 1227(a)(2)(E)(ii). In this (al- 33.030(2)(e) tance); Nev.Rev.Stat. guilty Petitioner’s nent include order to lowing a Therefore, for Complaints. and the pleas including monetary assistance award dis- constitute costs support, child payments, rent Complaints offenses, the qualifying for compensation fees, and attorney crimes his establish pleas must guilty violating A conviction earnings). lost of 8 provisions fell a stat- such 815, 183, Duenas-Alvarez, S.Ct. 127 U.S. 549 application than requires more statute our (2007). Because 822, 683 L.Ed.2d 166 language. statute's a state imagination to legal exam- by Petitioner's is unaffected a theo- not probability, a realistic requires It deter- behavior, we need benign ple of apply the State possibility, retical behavior such a conviction mine outside that falls conduct its statute probability.” a “realistic v. crime.” Gonzales of a generic U.S.C. title” without detailing the facts to which scribes: pled); defendant v. Sandoval-Lua Gon zales, conduct that (9th violates Cir.2007) F.3d protection% order that in a (noting, protec- context, involves related that the docu tion against ments in the record must establish that repeated harassment or bodily defendant injury “necessarily admitted” the or persons for elements of whom the qualifying offense); Cisne protection order was ros-Perez Gonzales, issued ... (9th Cir.2006), as amended (concluding task, Our un- conviction was the modified estab categorical approach, is to lished under the modified categorical determine ap whether Petitioner’s Complaints proach where the judgment record did established that he violat- “the defendant” ed necessarily “the portion order that pleaded ... to the allegations in origi protection against credible threats nal complaint) (emphasis added); repeated Rebilas bodily harassment or v. Mukasey, injury ...” Cir. 2008), as amended (holding applica case, however, tion of the modified categorical approach pleas did no more than state that he violat did not establish a covered conviction ed California Penal Code Section 273.6. where the judgment of conviction did not The guilty pleas establish, did not as the contain “the factual basis for crime”); majority opinion represents, that Petition Martinez-Perez v. Gonzales, 417 F.3d er was convicted “of violating an order Cir.2005), (de as amended to Section 6320 and termining that the record conviction was 6389 of the Family [California] Code.” Al inadequate where only reflected a guilty though Petitioner was charged with “vio plea to the statute conviction); Rente lating an order obtained pursuant to Sec ria-Morales v. Mukasey, 532 F.3d 949 tion 6389,” 6320 and he did plead (9th Cir.2008) (noting that inferences are “as charged in Complaint,” see United inadequate to meet the government’s bur Vidal, States v. (9th den unless “such inferences are neces Cir.2007) (en banc), plead guilty to “vio sary”). lating an order obtained pursuant to Sec tion Simply put, 6389,” our precedent see United States Martinez-Martinez, countenance the (9th F.3d reached Cir.2006) majority. To the (concluding that contrary, we recitation of have con- statutory sistently held elements is insufficient under the to estab modified cat- egorical lish the approach, nature a guilty plea must, conviction where at a minimum, the statute of broad). reference the allegations overly charging such a circumstance, document to establish predicate we have held that conviction. Vidal, modified categorical See approach F.3d at satisfied. Because See skeletal States v. Lopez- documents in this Montanez, case do not Cir.2005) F.3d the Petitioner pled (holding guilty to violating insufficient they when “simply restate described in the language the stat I ute” grant petition defendant plea enters a without review. elaboration); see also United States v. Ko

vac, Cir.2004) 1119-20

(rejecting as insufficient documents that

“merely recite[d] the statutory section and

Case Details

Case Name: Alanis-Alvarado v. Mukasey

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 3, 2008

Citation: 541 F.3d 966

Docket Number: 06-72369

Court Abbreviation: 9th Cir.