Fernando Malta-Espinoza v. Alberto R. Gonzales, Attorney General

SCHROEDER, 1101(a)(43)(F).1 Chief Before MARY M. addition, In if Malta-Es- CANBY, JR., Judge, C. Circuit WILLIAM pinoza’s qualifies conviction an aggra- Judge, KEVIN THOMAS Circuit felony, vated it him statutorily renders DUFFY,* Judge. District ineligible discretionary for cancellation of 1229b(a)(3). § removal. 8 U.S.C. AND OPINION ORDER Act, Immigration 8 U.S.C.

CANBY, Judge. Circuit 1101(43)(F), § “aggravated felony” defines to include “crimes of violence” as defined ORDER § provides: 18 U.S.C. is petition panel rehearing for The term “crime of violence” means— disposi- The memorandum GRANTED. (a) an offense that has as an element FedAppx. tion filed on June use, use, attempted the or threatened replaced by and is an is withdrawn person use of opinion contemporaneous- and dissent filed another, or property of or ly with this order. (b) any felony other offense that is a rehearing for en is petition banc that, nature, its involves a sub- moot. dismissed as risk that stantial or another OPINION of committing be used the course Malta-Espinoza, Fernando a native and offense. permanent citizen of Mexico who is a resi- offense, Malta-Espinoza’s At the time of States, for petitions dent of the United the California statute that he was convict- an order of the Board of Immi- review of violating provided pertinent part: ed of (“BIA”) gration Appeals holding that Mal- (a) Any person willfully, who malicious- ta-Espinoza’s state-law conviction for ly, follows or harasses stalking rendered him removable under 8 another and who makes a credi- 1227(a)(2)(A)(iii), § as an alien con- U.S.C. place ble threat with the intent to felony. Reviewing aggravated victed of an person in reasonable fear for his or her Ashcroft, novo, Reyes-Alcaraz de safety, or the of his her imme- Cir.2004), grant the family, diate crime review, petition for reverse the decision of stalking.... BIA, proceed- and remand for further issue, then, § 646.9.2The ings. Cal.Penal Code * ag- Duffy, qualifying a crime of as an The Honorable Kevin Thomas Senior for 1227(a)(2)(A)(iii). Judge gravated felony United States District Southern under York, sitting by designation. District of New that, provided statute also if The California Judge Immigration 2. 1. The also found that Mal- of a re- was done in violation ta-Espinoza was removable under 8 U.S.C. order, straining penalty imprison- 1227(a)(2)(E) was reason of his conviction two, three, years. or four ment for Cal.Penal stalking. did not The BIA reach 646.9(b). Malta-Espinoza was question appeal, Code and relied on the charged enhancing ground Malta-Espinoza’s was under this section. conviction person, and that Malta- within the defi- another crime falls is whether Espinoza’s harassing, forth in 18 was for of violence” set of “crime nition determining ques- following. It is not clear what evi- 16. categorical ap- tion, apply BIA we first dence led the to that conclusion. The “full whether determine proach the fel- administrative record contains covered the Califor- range of conduct” ony complaint entry and the of conviction meaning the of statute falls within nia guilty. felony complaint of plea on a INS, Chang v. of violence.” See “crime stalking charge alleged on the that Malta- (9th Cir.2002). 1185, 1189 If it F.3d 307 Espinoza maliciously “did not, proceed to a modified we then does Esposito, follow and harass Alma can con- categorical approach which we made a credible threat with the intent that of a “limited examination documents duct placed be fear for her she reasonable of conviction” to determine in the record safety safety family.” and the of her Malta-Espinoza was convicted of whether Nothing in these minimal indi- documents necessary constituting elements Malta-Espinoza guilty cates was whether not, violence. See id. do crime of “We following harassing of or or both. Al- however, to un- particular look facts though complaint alleged following derlying Sareang the conviction.” Ye v. conjunctively, harassing pro- the statute Cir.2000). (9th INS, 1133 following harassing. scribes Cal.Penal BIA took note of our decision 646.9(a). charge Code It is common to Jones, v. 231 F.3d 508 United States conjunctively underlying when an statute Cir.2000), that, for of purposes which held proscribes disjunctively; more than one act Guidelines, Sentencing the federal a con- charge permits upon viction for violation of the California stalk- proof that the defendant committed either was not a crime of violence ing statute See, conjunctively charged acts. threat, reason of its element of because Bonanno, e.g., United States v. requisite law the threat to under California (9th Cir.1988) (“Where 434, 441 a statute safety. not mean did specifies ways two or more in which an Borrelli, (citing People Id. at 519-20 77 committed, may offense be all al- be 703, 719-20, Cal.App.4th Cal.Rptr.2d 91 conjunctive leged in one count and (2000)). 851 The BIA accordingly declined any of one of proof conjunctively those acts 16(a) apply to the California charged may guilt.”). establish All that we stalking statute and focused on the instead gather charge can from the and the bare question of “substantial risk” under therefore, plea guilty, record of a of is that Malta-Espinoza guilty of fol- was either lowing or harassing The BIA next that or both.3 This fact stated however, prohibited following analysis, California statute or need not affect our be- argues Malta-Espinoza's 3. The dissent that not should establish more than would have plea by jury guilty harassing following by been established verdict of admitted both charge. See id. pleading guilty charge alleged to the both conjunctively. elements But a alternative We also note that the BIA affirmed on the guilty of admits the elements theory Malta-Espinoza's conviction was charge necessary for a conviction. See United harassing, following. up- We not cannot Cazares, BIA, hold the decision of the an administra- Cir.1997). necessary All that was agency, theory for convic- tive on a other than the one Malta-Espinoza upon Chenery tion was that either harassed which it relied. See SEC v. (with intent, necessary Corp., or followed threat 318 U.S. 63 S.Ct. 87 L.Ed. victim). (1943). guilty and effect on the His categorical approach Harassing can cause under involve conduct of which range impossible say the “full it must determine whether there ais applying physical the statute falls with- substantial risk of conduct” covered another, to the or property in the definition of “crime of violence.” as requires. Chang, 307 F.3d at On this is true that the 1189.4 Cali- fornia record, statute Malta-Espinoza may have been a credible threat, but “[i]t is not harassing only, prove as the BIA as- that the defendant had the intent to actual- sumed. If his conviction for ly carry threat,” out the “present and even qualify does crime incarceration of a making the cannot BIA’s decision stand. We there- threat shall not prosecution.” bar to question. fore turn to that § 646.9(g). Stalking under California law BIA concluded the conviction may entirely by be conducted sending let- met the definition of 18 Falck, pictures. ters and People v. 52 § involving as “a substantial Cal.App.4th 287, 297-98, 60 Cal.Rptr.2d that physical person risk force (1997). Indeed, 624 stalking a may of another be used in the upheld has been even though the victim committing of course the offense.” The was out country of the at the time that the BIA reasoned that this risk existed be- harassing conduct People occurred. v. cause the California statute that Norman, 1234, 1240-41, Cal.App.4th 75 89 by the harassment accompanied be a (1999). Cal.Rptr.2d 806 The bare com- place “credible threat with intent that plaint guilty of in Malta-Espino- reasonable fear for his or her za’s case therefore categorical- establishes 646.9(a), § safety,” through a course of ly no possibility more than the that Malta- alarms, “seriously annoys, conduct that Espinoza engaged long-distance torments, or person” terrorizes the harassing, which created no substantial a “would cause reasonable to suffer application risk of of physical 646.9(e).5 substantial emotional distress.” property. his victim or her Shepard v. combination, held, the BIA Such creates States, United 544 125 U.S. S.Ct. that physical “substantial risk (2005) (under 1254, 161 L.Ed.2d 205 modi- used, at recklessly, least over the dura- fied categorical approach, sentencing tion of the commission of the crime.” court can consider facts that are nec- We conclude that this formulation essarily admitted in plea); United application categori is an incorrect Wenner, 969, v. States 351 F.3d 974 categorical approach Cir.2003) (under cal or modified to the categorical modified ap- determination of a crime of violence. proach, an information alone cannot deter- conviction). also runs afoul of our recent banc en deci mine the of a elements On Gonzales, record, therefore, sion in Fernandez-Ruiz v. 466 government this has (9th Cir.2006) (en banc), 1121 F.3d establishing not sustained its burden of which the BIA did have the benefit at Malta-Espinoza was convicted of it the time decided. crime of violence. v. See United States range pro- requirement 4. Because the “full of conduct” 5. The of emotional distress was by 646.9, scribed the statute must meet the test of removed the 2002 amendments to crime, stalking violent it is not sufficient that Malta-Espino- but was in effect at the time of violence, often results in as the statistics cited za’s offense. stalking the dissent indicate. If some crimes include no substantial risk by Chang the test described is not met. decision) Navidad-Marcos, 903, open question the BIA’s left Cir.2004) (under recklessly qualified used categorical ap whether force modified 16(b). under Id. at a crime of violence government must establish proach, In a recent en banc that the convic 125 S.Ct. 377. clearly unequivocally decision, however, our court has ruled of a based on all of the elements tion was offense). use of force is not sufficient reckless qualifying commission of a crime support finding harassing may include con- The fact that meaning of violence within long at a distance duct carried on Gonzales, v. 466 F.3d Fernandez-Ruiz differentiates from the victim (en (9th Cir.2006) banc); see 1129-31 burglary, upon example from the Nobriga, also States United “Any burglar time a en- the BIA relied. (9th Cir.2006)(holding dwelling felonious or larcenous ters a with family abuse of member that in the course of intent there is risk conviction for crime of did not establish the crime he will encounter committing may be com violence when abuse occupants, physi- and use one of its lawful recklessness). reason, For mitted occupant either to cal force well, BIA cannot the decision of the illegal escape or to accomplish purpose his stand. Becker, apprehension.” (9th Cir.1990). Harass- CONCLUSION telephone simply mail or does not ment charging the of the document On basis risk. It is true carry the same substantial Malta-Espinoza’s plea guilty, and bare that the statute at the time of California documents in are the relevant which that the Malta-Espinoza’s required offense record, the administrative we conclude accompanying threat cause “substantial Malta-Espinoza’s that for stalk- victim, emo- emotional distress” to the but 646.9(a) § does ing under Cal.Penal Code equivalent tional is not the distress qualify not as a crime of violence within victim, physical against force the use § meaning the of 18 U.S.C. The required by the substantial risk which is BIA in accordingly ruling erred that Mal- 16(b). Moreover, § mere harm to the vic- ta-E spinoza was removable 16(b); tim is not sufficient under ground. statute use of force committing Immigration Judge The held that Mal- victim the course of 1, Ashcroft, ta-Espinoza was also removable under 8 crime. See Leocal v. 543 U.S. (2004) 1227(a)(2)(E), 377, 10, specifically 125 271 S.Ct. 160 L.Ed.2d stalking ground to in is makes a conviction for (stating that risk referred The BIA did reach that is- merely possibility not “the that harm will removal. not conduct, sue, to do we. conclusion person’s result from a but neither Our Malta-Espinoza’s that the use of conviction for stalk- risk ing qualify aggravated not as an felo- might required committing another does crime.”). however, ny, necessarily invalidates the Immigration Judge that Mal- ruling of Finally, note that the BIA found that ta-Espinoza statutorily ineligible is in a the substantial risk inhered viola- proceed- cancellation of removal. Further stalking tion of California’s statute was a ings regard are therefore substantial risk that as well. of another will be granted. recklessly.” Supreme petition used “at least The The for review is We (which BIA Court in reverse the decision of the and re- Leocal was decided after actually proceedings for further consistent admit to the facts mand contained opinion. They therein. have in effect with substituted findings their own of fact for those set PETITION FOR REVIEW GRANT- forth in the record. REVERSED; ED; CASE REMANDED. Defendants do not plead guilty to more DUFFY, Judge, dissenting: District they goes against than must. well- precedent established to hold that a majority has reconsidered its earlier The guilty is not an admission to all of the facts that the decision and holds record before charge. contained See United Malta-Espinoza us does not establish that Harris, (9th 1107, 108 F.3d conduct pleaded guilty constituting Cir.1997) (citing United States v. crime of as defined 18 U.S.C. Math ews, (9th Cir.1987)(“a 161, guilty pleaded when he victim, Espisito. guilty plea Alma conclusively proves his female Ms. the factual holding, majority essentially indictment”)); so has allegations contained in the rely Velasco-Medina, decided that courts cannot on the see also United States v. words of defendant’s mean 851-53 Cir.2002)(holding exactly they say. I respectfully what dis- an Abstract of the Judgment and the sent. charging papers, together, considered were prove alleged). sufficient to the facts Felony Complaint against The Amended majority holds that this is not the case Malta-Espinoza charged, among of other charge phrased conjunctively. when the is things, prior restraining that while under a cites, however, authority majority conduct, prohibiting order Malta-Es- clearly distinguishable. majority pinoza: Bonanno, relies on United States v. Maliciously follow[ed] Cir.1988), which holds ESPISITO, ALMA harassed] specifies that where a statute two or more made a credible threat with the intent ways in may which an offense be commit in placed that she be reasonable fear for ted, may alleged conjunctive all in the safety safety her and the of her immedi- in count jury’s finding proof one and a of family. ate any of one of acts those is sufficient to find (Record Appeal on at 126)(emphasis add- guilt. guilty plea, This is different than a ed). This was the count in the which is an “admission that defen [the Felony Complaint Amended to which Mal- charged against committed the crime dant] pleaded guilty. The ta-Espinoza other Broce, him.” United States v. 488 U.S. counts pursuant were dismissed to his S.Ct. L.Ed.2d deal with the Government. An Abstract of (1989) (citations omitted). Judgment reflects the terms of his By entering guilty, a of the accused guilty plea. majority holds that these documents, stating is that he did the acts discrete together, considered are not in and enough to described the indictment is admit- Malta-Espinoza establish of ting guilt both followed and a substantive crime. See id. Espisito. harassed Ms. Instead, they have found that when a Because of the clear difference and its de- pleads guilty import, agree majority.1 fendant to a count he does I cannot with the (the Immigrations Appeals finding may 1. The Board of the basis for its of fact. It have "BIA”) examined the record of conviction police re- reached this conclusion based Malta-Espinoza harassing and found that was immigration ports presented judge. to the (Rec- Espisito, following Ms. rather than her. part police reports a Those are not of 8.) Appeal identify ord on at The BIA did not forth in requirement set if stantial risk” necessary determine is then require fol- The Becker court did maliciously stalking by force, certainty making physical an of person, absolute lowing and majority require that the here. Even the intent seems threat with a credible her reasonable fear for force is not a though physical placed person be “[a]ny of her immediate burglary, of residential safety and the element pro- order restraining dwelling ... there family prior burglar time a enters while crime of violence committing is a hibiting conduct that in the course of is a risk 16(b).2 under 18 U.S.C. encounter one of its the crime he will occupants, and use lawful a crime of vio- defines Subsection Becker, 919 occupant....” lence as: 571; at also see (b) felony offense any other M.C.E., 1255-56 Cir. nature, that, involves sub- its 2000) categorical under the (holding that risk that stantial burglary residential is a crime of approach of another of a violent violence because of the risk committing in the course be used confrontation). offense. majority notes that can added). The 16(b)(emphasis 18 U.S.C. implies occur at a distance and analysis considers both the cate- majority’s a small risk of those instances there is categorical approach. gorical and modified being used the vic- physical force agreed that stalk- parties have While A burglary. tim. The same is true of not a crime violence under ing is burglar may empty dwelling enter an of that categorical approach, consideration traveling are far from while its inhabitants applying when approach is instructive fact, generally the intention home. it is approach particular- categorical modified — burglars most to enter undetected and light logic set forth United ly facing Becker, remove valuables without ever States Cir.1990) occupants dwelling. Stalking is a (holding burglaries residential personal crimes of violence be- far more crime. The stalker of- categorically are power confluence common sense or control over “[t]he cause ten seeks sense victim, lead to the conclusion that precedent usually through fear. Na- his daytime entry of the the unauthorized tional Institute of Justice and Centers intent to com- dwelling of another with the Prevention, Stalking Disease Control and any felony carries with it larceny mit a or Findings From the National America: that force will be used substantial risk Against Survey, Re- Violence Women property or of anoth- 1998) 8; (April in Brief at see search also er”). Justice, Dep’t Stalking and Domes- U.S. Violence, Becker, it, (May Report Congress In tic to and the cases that follow 2001) rightly (stating, generally, this considered the “sub- at the motive Circuit 16(a) Court's consideration. This is of no conse- 2. Subsection of Title 18 this case. quence. finding change States Code is not relevant to It The BIA’s does not states: analysis. Surely, Malta-Espinoza’s this if ha- rassing conduct alone was sufficient to con- The term "crime of violence" means— use, (a) vince the BIA of the risk the BIA's an offense that has an element the use, acknowledgment attempted of his admission to follow- or threatened use of ing Espisito supported Ms. could have its or of anoth- ultimate conclusion. er.... sexual; necessarily stalking for is not second best indicator of a stalker’s potential or hostili- to anger stalkers are motivated use violence the future. See and a desire to con- id. at 29-30. Because ty towards the victim California does not victim). And, stalking, by recognize because individuals trol the who are obsessive victimization, definition, repeated followers and harassers to be stalkers un- threats, they there is an increased less make persons it is intuitive credible statutory for violence. who meet the opportunity presum- definition ably already present greater risk of vio- stalking Research on has found vio- case, lence. As in this restraining orders against person lence occurs 30-50% of deterrent; are often not an effective 69% Rosenfeld, stalking Barry cases. See Vio- of women said the stalker violated a re- Stalking lence Risk Factors in and Obses- straining order. See National Center Harassment, sional 31 CRIMINAL Justioe Stalking Victims of Crime Resource Cen- (2004) (performing ÁND Behavior ter, Sheet, Stalking supra Fact at 1. meta-analysis eight leading studies of likely figures majority these actual- stalking). relies the recent en decision, ly underestimate the rate of violence asso- banc Fernandez-Ruiz v. Gon zales, Cir.2006)(en stalking ciated with because cases which 466 F.3d 1121 banc). stalking misplaced. has turned violent are often iden- This reliance is Fer solely by tified the more serious crime nandez-Ruiz holds that the reckless use of homicide, rape support finding such as or assault. See id. force is not sufficient to at 11. The National Center for Victims of the commission of a crime of violence 16(a). vic- reports opinion Crime that “46% of under 18 U.S.C. ex 16(b), experience pressly inci- tims one more violent declined to consider National is the dents stalker.” Center section of the statute at issue in (“Additional at Stalking Victims of Crime Resource Cen- case. See id. 1125 n. 6 ter, Sheet, Stalking http://www.ncvc. ly, Fact we need not consider 18 U.S.C. org/ src/AGP.Net/Components/Document- because Fernandez-Ruiz’s assault convic misdemeanors.”). aspxnz?Documen- tions were both Viewer/Download. (last 2006). In tlD=40616 visited Jan. Malta-Espinoza pleaded guilty to re- victim, physically harming addition to peatedly following Ms. Espi- approximately research has indicated that despite restraining sito the existence of a of stalkers 29% vandalize the victim’s pleaded guilty making order. He property, and 9% of stalkers kill or threat- to put credible threat with the intent her family pets. to kill victim’s en safety in fear for her and the of her Justice, Dep’t Stalking U.S. and Domes- family. majority immediate somehow Violence, (May Report Congress tic they the conclusion that are un- reaches 2001) at 22. whether this created a able determine California, the existence of a credible substantial risk of They implied through Espisito property. threat —whether direct or Ms. or her rest “possibility conduct—is an element of the crime of their conclusion on the 646.9(a). stalking. Malta-Espinoza engaged long-dis- in ... See CaLPenal Code harassing.” agree. Studies confirmed that there is a tance I cannot have that, judicially positive association between the existence noticeable documents show harassing” by repeatedly “following of such threats and a stalker’s eventual use and was, to supra Espisito, Malta-Espinoza of violence. See Rosenfeld at 14-17. Ms. some analysis leading degree, physical proximity An on stalk- to her. six studies Moreover, irony not without sad that I ing making has shown the of threats to be it is BEEZER, dissenting. Judge, proximity of a Circuit the lack note indica- is not reliable to his victim stalker disposition filed on In a memorandum California’s of violence. tor of the risk assigned May panel the unanimous rooted in the case of are stalking laws says: to this case young awith man who became obsessed 8,May on Appellants were indicted away. of miles He living hundreds actress conspiracy 1—the count— 2001. Count through the mail until one her items sent alleged appellants inflated their home, to her shot and day he traveled payroll and fabricated re- reports cost step. front See Gina her on her killed time-cards, nursing and sched- ports, Zone; Piccalo, Prey Safety Stalker’s ules; for reports submitted false cost Terror; Anchor Cases like News Tells of 1998; 1996,1997, nurs- and created false Police, Judges Kelly Mack’s Show for ing logs preparation and schedules in Taking the Crime Makers are Law audit; and made false state- Medicare Times, Dec. Stalking Seriously, L.A. More ments to auditors from Mutual of Oma- 2000, 4, (describing at B6 ha, intermediary acting on a fiscal behalf 21-year-old actress Rebecca murder during its au- program, of the Medicare Schaeffer, “My the co-star of the sitcom 2, dit. Counts 3 and 4—the false-claims Sam”). Sister charged appellants with submit- counts— respectfully I dissent. 1996, for 1997 and ting reports false cost

1998. Counts 5 and 6 were related by the audit Mutual of Omaha and charged appellants making with false statement ‘certain nurses America, UNITED STATES on worked 100% their time Medicare Plaintiff-Appellee, (Count 5) patients’ obstructing by failing federal audit to furnish CARE HOS- ST. LUKE’S SUBACUTE nursing actual schedules PITAL, INC.; Guy Seaton, Roland proper payment assure the Medicare

Defendants-Appellants. (Count 6). program jury A returned a verdict on all

No. 04-10231. counts, and the district court sentenced Appeals, United States Court of imprisonment Seaton to 78 months’ Ninth Circuit. release, years’ supervised denying three March 2007. request pending appeal. his for release placed probation St. Luke’s was Rosen, Esq., Amber USSJ —Office of S. years.1 five Jose, CA, Attorney, Plain- U.S. San App’x May Fed. Cir. tiff-Appellee. 2006) disposition). (unpublished Hallinan, Patrick Esq., Sarsfield Ken- Wine, Wine, Through papers recently neth H. Hallinan & filed Esq., Riordan, Attorney, have ad- Esq., Dennis P. Riordan & Hor- United States been Francisco, CA, gan, procedural history vised that of this San for Defendants- Appellants. case is as follows: 1. of a 2005. Seaton was released on bail order two-judge panel May of this court on

Case Details

Case Name: Fernando Malta-Espinoza v. Alberto R. Gonzales, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 2, 2007

Citation: 478 F.3d 1080

Docket Number: 04-71140

Court Abbreviation: 9th Cir.