*1 inсluding granting Plaintiffs opinion, dis- this viewpoint unconstitutional claim of They may Agents. against complaint. to amend their Defen- crimination leave in- complaint to amend their able to be court’s appeal dants’ from the district de- claim, plausible that will state clude facts summary judg- motion for ferral of their be justice would thus the interests party ment is dismissed. Each shall bear to do so. them a chance by granting served appeal. its own costs on im- qualified court’s denial The district REMANDED, REVERSED and the case remanded munity is reversed DISMISSED, part. part; with consistent proceedings further APPENDIX SZALAI,
Ferenc Jr.,* Respondent. Eric H. HOLDER No. 06-74994. Appeals, States Court of Ninth Circuit. Oct. Argued and Submitted July Filed * States, pursuant to Fed. predе- of the United his eral Jr. is substituted for Eric H. Holder 43(c)(2). R.App. Attorney P. Mukasey as Gen- Michael B. cessor *2 AND PROCEDURAL Statler, I. FACTUAL Immigration Law Of- A.
Teresa Statler, Portland, OR, for A. BACKGROUND Teresa fice of petitioner. 3, 2002, January Petitioner’s ex-wife On *3 Benner-Leon, Department U.S. Wendy “Restraining a FAPA Order to obtained Division, Immi- Justice, Office Civil for Prevent Abuse” from the Circuit Court Washington, D.C. for Litigation, gration County. Oregon, Washington State respondent. a restraining That order contained number 1) separate provisions, including terms “intimidating,
enjoining Petitioner from molesting, interfering menacing” with or any minor children in her his ex-wife or (or and TASHIMA custody attempting Before A. WALLACE to do of those Jr., SMITH, Judges, 2) D. Circuit MILAN enjoining Petitioner from enter- things), WU,** Judge. District H. and GEORGE to enter various lоca- ing attempting tions, including his ex-wife’s residence PER CURIAM: yards of his ex-wife or areas within is raised this case question residence, enjoining her Petitioner holding an individual judgment a whether contacting attempting from to contact “stay away” disobeying for contempt person through party “3rd his ex-wife pur- restraining order issued portion of by phone, (except mail and e-mail contact” Family Abuse Preven- Oregon’s to suant “regarding parenting time” with his chil- (“FAPA”), Oregon Revised Stat- tion Act dren). However, restraining (2007), qualifies §§ 107.700to 107.735 utes permit to was soon thereafter modified of a order” as a violation up to the children from or pick Petitioner 1227(a)(2)(E)(ii). Petitioner 8 U.S.C. to his ex-wife’s residence so deliver thеm Szalai, Hun- a native and citizen of Ferenc (except he remained curbside and long as permanent resident of gary and a lawful seat) a child in a car inside his put nation, an appeals from order of this vehicle. (“BIA”) Immigration Appeals Board of 18, 2002, February On appeal affirming dismissing his residence returned his son to his exwife’s (“U”) Judge Immigration of an decision A halfway up driveway.1 and walked request for cancellation of denied his Contempt Hearing” reflects “Judgment on forms of relief. We removal and other 29, 2002, Washington April on jurisdiction pursuant 8 U.S.C. have Petitioner, be County Court found Circuit deny petition for re- 1252 and we doubt, in “wilful con- yond a reasonable view. ** Wu, approach that Pеti- George States “modified” H. The Honorable Judge applies. Cali- See United States for the Central District of tioner asserts District fornia, (9th designation. sitting by Lopez-Solis, Cir. 447 F.3d 2006); Kelly, 422 F.3d United States v. derived from Affidavit 1. This fact is Gonzales, Cir.2005); (9th Parrilla v. 895-96 Arrest and from Support of Probable Cause Cir.2005). (9th Ulti- 1043-44 part police report that was an incident however, mately, reliance on those docu- report, which were filed in connec- both of unnecessary purposes deter- for ments restraining violation of tion with the qualifies mining offense whether Petitioner’s appear to contempt proceedings and which "protection order” under as a violation of and the BIA. Or- before both the IJ have been pertinent issue rely upon dinarily, not those we could proceeding. in this this fact if we follow the sources to establish
tempt properly for violation of the or- upon police report relied February der” connection with the 18 the IJ had entered into evidence below. In particular, incident.2 the court found Petitioner refers to the following language that Petitioner had “by violated the order ruling: from the BIA’s being yards within 100 ex of[Petitioner’s In the instant the record includes a rest, wife] not allowed order.” The copy of the police report[3] respect- days sentenced Petitioner to serve 60 ing[Petitioner’s] arrest. It shows that (with jail credit for time served and child, during drop off of his [Petition- remainder), suspension placed him car, er] did not remain in his did not probation period on formal of two *4 curbside, got remain at but out of his car years, undergo ordered him to treatment up halfway up[sic and walked his ex- ] counseling anger, and for mental health driveway.... wife’s violence, and domestic and The BIA then concluded that Petitioner’s any exchange further of children would conduct fell within the terms of section place police take at the station Beaver- 1227(a)(2)(E)(ii). ton, Oregon. remand, Upon applied Petitioner for later, year
Over a Department of Home- cancellation of removal Security pursuant land to 8 аuthorities arrested Petition- er 1229b(a), and served him Ap- with Notice to for—in the alterna- pear. government charged Petitioner asylum, withholding removal, of tive— with violating portion of a domestic relief under the Against Convention and/or restraining order that protection involved Torture. The all IJ denied of Petitioner’s against credible threats of re- requested forms of relief and ordered him peated bodily injury to his removed to Hungary. appealed Petitioner ex-wife, him making subject to removal the IJ’s order and BIA dismissed the 1227(a)(2)(E)(ii). under 8 U.S.C. appeal.4 assigned
The IJ to the case terminated II. proceedings removal with prejudice upon DISCUSSION determining that Petitioner’s violation of A. Standard Review of yard stay the 100 away portion of the The Ninth Circuit reviews de restraining order bring did not Petitioner novo whether a conviction constitutes within the meaning 1227(a)(2)(E)(ii). removable offense under Immigration appeal, On BIA disa- Nationality Act. greed, See vacating the IJ’s decision Alanis-Alvarado and re- (9th manding Cir.2009); the matter. v. Petitioner asserts 558 F.3d decision, in reaching its INS, the BIA im- Coronado-Durazo FAPA, 2. Under Although violation of a or- 3. "police the BIA referenced a re- gives contempt der proceedings. rise to As port,” it in fact cited Sup- to an Affidavit in Bachman, explained in Bachman v. 171 Or. port of Probable Cause Arrest which was filed (2000) App. (quoting 16 P.3d part copy of a certified оf Petitioner’s con- Hart, Hathaway v. 300 Or. 708 P.2d viction record. (1985)), "the essence of [FAPA] is prevent family through acts of violence court, petition In his to this Szalai does not and, restraining orders if the court orders are challenge request asylum, the denial of his for disobeyed, provide legal sanctions for the removal, withholding of relief under and/or violations ordinary of the orders because Against the Convention Torture. criminal actions at law were found to be inadequate legislative to achieve this desired result.” Cir.1997). (9th The BIA’s determina regarding legal questions purely tion of (ii) protection orders Violators Nationality Act— Immigration Any any time after alien who statu particular as its such enjoined pro- admission is reviewed de novo. likewise tory section —is tection order issued a court and INS, 170 F.3d Lafarga v. whom the court determines has en- Cir.1999).5 (9th gaged in conduct that violates the order that Analysis B. protection against involves credible Analysis Categorical violence, repeated harass- threats of Restraining FAPA Order ment, bodily injury person persons with remova whom charged deportable. order was issued is bility under 8 U.S.C. clause, purposes For of this pertinent part: provides, term order” means (a) aliens deportable Classes *5 injunction purpose of issued for ... in and admitted Any alien preventing threatening violent or shall, the order of upon United States violence, including acts of domestic General, if the Attorney be removed by temporary or final orders issued or more of the follow- alien is within one (other than civil or criminal courts deportable aliens: ing classes of custody support or child orders or by fil-
provisions) whether obtained action as a ing independent or (2) offenses Criminal pro- in another pendente lite order ceeding. (2005 1227(a)(2)(E)(ii)
(E)
violence,
&
8 U.S.C.A.
of domestic
Crimes
added).
(emphasis
ques-
The
protection
Supp.2007)
or-
stalking, or violation of
violation
der,
tion here is whether Petitioner’s
against children and[6]
crimes
principles
ence
to BIA’s construction of sec-
interpretation and
of
BIA's
The
1227(a)(l)(E)(I));
Ashcroft,
Singh v.
386
tion
immigration
are nevertheless entitled
laws
1228,
(9th Cir.2004) (rejecting
1230-31
under Chev
F.3d
deference in certain instances
interpreting
call for Chevron deference
Inc. v. Natural Resources
ron U.S.A.
Defense
Inc.,
Council,
context
and federal criminal laws in
of
state
467 U.S.
(1984).
proceeding
Marmolejo-Cam
removal
under
foreclosed arguments Petitionеr’s At in that case was section varado. issue here are untenable. Family Code which 6320 of the California argument,9 empha- At oral provided: sized that in Alanis-Alvarado we conclud- may parte issue an ex only that all of a section portions ed at- enjoining party molesting, from *7 protective purpose order served the of sec- striking, stalking, threatening, tacking, tion because the issuance sexually assaulting, battering, harassing, an order under section 6320 “a of telephoning, including, but not limited showing proof past of ‘reasonable act to, annoying telephone calls as described ” 838, quoting or acts abuse.’ Cal. Code, in 653m of the Penal de- Section However, a FAPA FаnxCode 6300. re- contacting, stroying personal property, imposes a threshold straining order similar indirectly, by mail or directly or either requirement and more. In re Mar- otherwise, specified coming within Ringler, Or.App. riage 188 P.3d of, disturbing peace or the distance (2008) (“Under 107.710, in and, in ORS party, the other the discretion of Alanis-Alvarado, opinion origi- 9. The in Alanis-Alvarado was 7. As we noted in 3, 2008, protec- the nally September 6320 was amended in 2007—after filed on see 541 F.3d case, were issued and after tive orders in that case briefing completed after was in this petitioner See 558 the had been convicted. and amended on March see 558 F.3d F.3d at 838 n. 3. Although only original opinion the was argument, none available at the time of oral case, Contempt Judgment In this the on subsequent of the amendments affects our Hearing specified had violated the that Szalai analysis Alanis-Alvarado’s restraining yard stay away provi- order’s 100 this case. sion. order, reaching restraining to obtain a FAPA its decision and even whether we jurisdiction by a have to resolve that issue. prove, preponder- must Alanis-Alvarado, however, evidence, light of we that he or she has been ance of ‘abuse,’ need not reach those Even as disputes. the victim of as that term is de- BIA 107.705.”10); suming by considering that the erred fined in ORS OR. REV. 107.718(1) police report,11 Petitioner does not that (indicating STAT. deny restraining that he or violated may rеstraining issue a FAPA yard stay away provision der’s 100 upon showing the individual “has we in concluded Alanis-Alvarado “involves by been the victim of abuse committed protection against credible threats of vio respondent days preceding within 180 lence, bodily inju filing petition,” and “that there is ry.” import Given the of Alanis-Alvara danger imminent of further abuse to the do, necessary all information to the section respondent repre- and that the [individual] 1227(a)(2)(E)(ii) analysis here was con physical sents a credible threat to the safe- tained the FAPA order and ty of the [individual] [individual’s] Judgment Contempt Hearing, on docu ”). Moreover, issuing child.... ments may which Petitioner admits be con here, FAPA order court in fact catеgorical ap sidered under the modified found that Petitioner had abused his ex- proach. Mukasey, See Kawashima v. wife within the meaning OR. REV. (9th Cir.2008), F.3d 1114 n. 4 abro 107.705, STAT. “represents he — Holder, gated part, Nijhawan safety physical credible threat U.S. -, 174 L.Ed.2d [his child and there is an ex-wife] [her] ” (2009). Thus error in the con BIA’s danger imminent of further abuse.... police report sideration of the harm was attempt distinguish Petitioner’s Alanis- less. unavailing. Alvarado is therefore petition for review is DENIED.
We are bound
Alanis-Alvarado.
in that
based on the
WU, District Judge, concurring:
government’s concession that
the full
I concur in the
result reached
range
proscribable
of conduct
under a
majority opinion
analysis
and most of its
FAPA restraining ordеr is broader than
upon
based
the decision in Alanis-Alvara-
we conclude that
(9th
Cir.2009),
do v.
983 109 L.Ed.2d ised on a violation of a order” 495 U.S. (1990), in petitioner’s that which is defined the federal statute it- pur- court orders issued self. pleas violating to § Family suant to California Code In Taylor, the issue concerned the 1227(a)(2)(E)(ii) because
fell within section
meaning
“burglary”
of the word
as it was
a statute
in its
part
section 6320 “is
924(e),
in
provided
used
18 U.S.C.
which
domestic vio-
entirety,
prevent
aims to
persons
sentence enhancement for
lence,
enjoin
a court to
abusive
authorizes
prior
with three
convictions for “a violent
acts,
showing
past
of a
act of abuse
upon
felony
drug
or a serious
offense.” See 495
[;
every portion
protective
....
and]
578-80,
U.S. at
offense.” 11(a)(3), by Rule Crim. Proc. shown however, burgla- defined Fed. the state statute (for plea colloquy by re- or writ- example by transcript not broadly ry more entry plea agreement presented initial be unlawful ten that the quiring nonbuildings court, by including by comparable a record of find- unprivilegеd, scope), within its ings adopted as cars or boats of fact defendant such plea. such ma- upon entering Court stated: With case, however, court may pleaded terial in a later approach, This go generally plea to be- could tell whether the had sentencing permit identify- “necessarily” fact of conviction in a rested on the fact yond the mere jury burglary generic, Taylor, of cases where a was as su- range ing narrow 2143, just to find all the elements at 110 as the actually required pra, S.Ct. burglary. example, support For could generic details of instructions include burglary jury statutes in the or the details State whose conclusion as a entry generically charging of an automobile as well of a limited docu- building, if the indictment or information ment do in sort of case. would jury and instructions show that the de- (footnote 20-21, 125 1254 544 U.S. S.Ct. burgla- charged only with fendant was omitted). However, the refused to Court jury ry building, of a and neces- permit evidentiary explorations further to entry building find an sarily had to beyond be conducted “conclusive records convict, then the should to Government adjudicating guilt,” or used in such made use the for en- be allowed to conviction examining police reports and other hancement. to courts “documents submitted lower even 21-23, prior charges.” to Id. at 125 S.Ct. States, Shepard In v. 544 U.S. (2005), above, 205 light why L.Ed.2d unclear allowed, situations,
the Court limited “categorical” categorical” or “modified further, evidentiary examination of materi- approaches applicable would be to the 8 1227(a)(2)(E)® beyond charges jury als and instructions. U.S.C. situation. Un- As therein: “burglary” predicate stated like situations where “generic” apparently and “non- not, however, there are purport did to
The Court
generic” statutory
definitions
adequate judicial
limit
record evidence
crime,
deals with
instructions,
strictly
charges
where
is no such
orders”
there
[Taylor, 495
U.S.]
S.Ct.
meanings.
importantly,
multitude of
More
(discussing the use of these documents
the federal statute itself defines the term.
as an
since a conviction
“example”),
Thus, there is no conflict
sоme
between
might
judge
follow trial to a
alone or a
“generic”
“crime of conviction” and a
plea
guilty.
In cases tried without a
Hence,
very problem
raised in
crime.
jury,
analogs
jury
the closest
instruc-
(for
Taylor
“categorical”
which the
judge’s
a bench-trial
for-
tions would be
fact,
categorical” approaches
“modified
were
rulings
findings
mal
of law and
pleaded
they
response)
cases
would be the
crafted in
is absent here.2 The
generic
Mukasey,
viction are broader
than the
crime.”
2. As noted in Kawashima v.
(9th Cir.2008), abrogated
part,
F.3d 1111
1115(quoting Navarro-Lopez v.
Id. at
Gon-
-,
Nijhawan
S.Ct.
-U.S.
zales,
(9th Cir.2007)).
(2009):
L.Ed.2d 22
“The modified
In the context of 8 U.S.C.
categorical approaсh
only applies
...
when
if
were to assume that the “crime of
even
one
*10
particular
the
of con-
the
elements in
crime
1227(a)(2)(E)(ii)
gaged
type
is limited
in a certain
long
fact that section
conduct so
of “the
process
to violations
as due
concerns are not violated.
protection against
that
involves
inapplicability
The
the eategori
threats of
credible
categorical approaches to 8
cal/modified
injury
bodily
person
to the
§
strongly
indi
...
for whom the
order was
Supreme
cated
the
Court’s recent deci
analysis.
the
change
issued” does not
—
in Nijhawan
U.S. -,
sion
distinguish-
There is a further basis for
(2009).
129 S.Ct.
174 L.Ed.2d
from
ing
present
the
situation
cases which
that
the issuе was whether the alien
require
eategori-
the
petitioner had been convicted of an “aggra
categorical approaches as de-
cal/modified
felony”
vated
under
8 U.S.C.
veloped
Taylor/Shepard
the
line of deci-
1227(a)(2)(A)(iii).
§
“Aggravated felony”
ie.,
sions,
by examining
what is
1101(a)(43)(M)(i)
§
is defined in 8 U.S.C.
predicate
underlying
for the
element
the
involving
to include offenses
“fraud or de
Taylor
emphasized
statutes. The Court
ceit in which the loss to the victim or
”
924(e)(1) requires
that
that
18 U.S.C.
$10,000....
victims exceeds
petition
convictions,
prior
have
defendant
er had been convicted of mail fraud and
merely
previous
not
have committed three
related crimes but
jury
made no find
600-01,
crimes. 495 U.S. аt
ings as to the amount
Nijha
of the loss.
Further,
previous
felony
violent
wan,
ing/protective
exactly
what
would
approach at all?
''generic”
generic
crime be?
If there is no
*11
so,
found
doing
In
the Court
at 2302-03.
latter,
a
“circumstance-
then
broader
the
“evidentiary
urged by
limitations”
the
at
made.
Id.
analysis would be
specific”
to the “modi-
applicable
and
the
“If
Nijhawan:
As stated
2298-99.
were not re-
categorical approach”
fied
first,
to the statute de-
we must look
the
stated
the
quired.
Id. at 2303. As
whether
to determine
fining the offense
nothing
prior
have found
Court: “we
monetary thresh-
appropriate
it has an
court.
immigration
that so limits the
law
old;
second,
must look to the
if the
we
States, 550 U.S.
Taylor, James
[v.
an of-
underlying
circumstances
facts and
167 L.Ed.2d
S.Ct.
not-
Id. The Court
fender’s conviction.”
(2007)]
the cases that devel-
Shepard,
and
courts which
split
in the circuit
ed
evidentiary
petition-
to which
list
oped
categorical/definitional
adopted the
had
very
developed that
list for a
points,
er
(such
as the Ninth Circuit
approach
namely that of deter-
purpose,
different
Kawashima,
1117),
and those
(contained
statutory phrase
mining which
approach”
a “fact-based
employed
statutory provision
a
that covers
within
Circuits).
(such
crimes)
and Fifth
as the First
covered a
generic
several different
Id.
prior
Id. at 2298.
conviction.”
conclusion,
1)
In
the central issues
de-
that:
“the
Eventually, the Court held
within
termining whether Szalai falls
an
language does not refer to
italicized
1)
1227(a)(2)(E)®
are:
does the
of the fraud or deceit crime.
element
qualify
FAPA
to the
circum-
particular
Rather it refers
order” under the definition
committed a
stances in which
offender
statute,
in the federal
and
did
delineated
(more
defined)
broadly
fraud or deceit
it
“in-
Szalai violate that
of which
(id.);
particular
occasion”
crime on
protection against
volves
credible threats
2) “we conclude that the ‘fraud and deceit’
bodily
us calls for a ‘circum-
provision before
injury
persons
for whom
person
stance-specific,’
‘categorical,’
not a
inter-
order was issued....”
2300).
(id.
pretation”
particular
Of
note
quite
can
resolved
sim-
Those matters
be
opinion,
III of the
is
Section
ply and without the extraneous burdens
rejected
petitioner’s
specifically
Court
conducting purported
and restrictions
request
Taylor
to borrow from
“modified
categorical
categorical
modified
and/or
analysis.
analysis.3
generally, Chambers v.
categorical approach” to the
273.6,
might question
majority
conviction does not
3. One
whether the
section
Petitioner's
categorical approach.” Id.
suffice under the
opinion
actually
in Alanis-Alvarado itself
original).
(emphasis in
The court then
at 837
correctly
categorical
applied the
and/or
categorical approach
modified
turned
categorical approaches
modified
delineated in
petitioner’s
tо examine the
"records
in order
Indeed,
Taylor
Shepard.
the dissent
so,
doing
cryptically
Id. In
conviction.”
majority
Alanis-Alvarado accuses the
hav-
noted that:
ing incorrectly applied
categori-
the modified
Although
inquiry
this
rides under
ban-
840-41(Rawlin-
approach.
cal
558 F.3d at
categorical approach,”
ner of
"modified
son, J., dissenting).
only
of conviction here tell us
records
Alanis-Alvarado,
initially
it was
held that
which combination of statutes authorized
"a conviction under California Penal Code
order that Petitioner violat-
273.6,
violating protective
inquiry
ed. Our modified
Family
pursuant
Code
issued
California
categorical inquiry:
therefore identical to a
6320, categorically qualifies
as viola-
provision
whether the INA
embraces the
'protection
under 8 U.S.C.
tion of
order’
range
"full
of conduct” under those state
....”
fenses has created numerous courts, the resolution of
the lower federal years.) occupy
which could this Court
[Footnote omitted.].” INC., a Delaware
T-MOBILE USA al.,
corporation; et Plaintiffs-
Appellees, ANACORTES, Washington
CITY OF
municipal corporation, Defendant-
Appellant.
No. 08-35493. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted June 2009. July
Filed
comprehend
categorical ap-
Id. It is difficult to
how a modi-
the distinction between the
categorical inquiry
proach
categorical ap-
fied
can be “identical” to
and the modified
Gonzales,
categorical inquiry
going beyond
proach.
generally
when