Alanis-Alvarado v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALANIS-ALVARADO, 

Petitioner, No. 06-72369

v.

 Agency No.

A92-611-947

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 7, 2008—Seattle, Washington

Filed September 3, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Rawlinson

12125

ALANIS-ALVARADO v. MUKASEY 12129

COUNSEL

Manuel F. Rios, III, and Lesley Irizarry-Hougan, Rios Cantor,

P.S., Seattle, Washington, for the petitioner.

Jesse Bless, Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C., for

the respondent.

OPINION

GRABER, Circuit Judge:

We must decide whether a conviction under California

Penal Code section 273.6, for violating a protective order

issued pursuant to California Family Code section 6320, cate-

gorically qualifies as violation of a “protection order” under

8 U.S.C. § 1227(a)(2)(E)(ii) of the Immigration and National-

ity Act (“INA”). We hold that it does and, therefore, deny the

petition for review.

FACTUAL AND PROCEDURAL HISTORY

Petitioner Carlos Alanis-Alvarado is a 46-year-old native

and citizen of Mexico. He became a lawful permanent resi-

dent of the United States in 1990. Twice in 2003, he pleaded

guilty to violating section 273.6 of the California Penal Code.

The relevant parts of the two guilty pleas are identical and

read as follows:

On or about 8/14/03 [or 7/28/03] the crime of DIS-

OBEYING COURT ORDER, in violation of Section

12130 ALANIS-ALVARADO v. MUKASEY

273.6 of the Penal Code, a MISDEMEANOR, was

committed by CARLOS ALANIS ALVARADO,

who at the time and place last aforesaid, did will-

fully, unlawfully and knowingly violate a Court

order obtained pursuant to Section 6320 and 6389 of

the Family Code of the State of California.

After those convictions, the government issued a Notice to

Appear. The Notice to Appear asserted that, because of the

two convictions,1 Petitioner was removable under three differ-

ent provisions of the INA: under 8 U.S.C. § 1227(a)(2)(A)(ii),

for having been convicted of two crimes involving moral tur-

pitude; under 8 U.S.C. § 1227(a)(2)(E)(i), for having been

convicted of a crime of domestic violence; and under 8 U.S.C.

§ 1227(a)(2)(E)(ii), for having been convicted of violating a

domestic violence protection order.

After a hearing, the immigration judge ordered Petitioner

removed. Petitioner appealed to the Board of Immigration

Appeals (“BIA”). The BIA held that Petitioner’s convictions

qualified under 8 U.S.C. § 1227(a)(2)(E)(ii), but expressly

declined to reach the other two sections of the INA charged

in the Notice to Appear. Petitioner then filed a timely petition

for review with this court.

STANDARD OF REVIEW

We review de novo whether a particular conviction under

state law is a removable offense. Coronado-Durazo v. INS,

123 F.3d 1322, 1324 (9th Cir. 1997).

1

The record contains evidence of three additional state convictions.

Those convictions did not appear on the Notice to Appear; the Board of

Immigration Appeals did not rely on them; and neither party argues that

those convictions are relevant to the issue we address here.

ALANIS-ALVARADO v. MUKASEY 12131

DISCUSSION

[1] To determine whether a petitioner’s prior conviction fits

within the statutory definition of a removable offense, we use

the “categorical approach” and “modified categorical

approach” that were first announced in Taylor v. United

States, 495 U.S. 575 (1990). Ferreira v. Ashcroft, 390 F.3d

1091, 1095 (9th Cir. 2004). Under the categorical approach,

if the “full range of conduct” covered by the state statute falls

within the scope of the INA provision, then the petitioner’s

conviction is categorically a removable offense. Id. (internal

quotation marks omitted). If not, “we then proceed to a ‘modi-

fied categorical approach.’ ” Id. Under the modified categori-

cal approach, we look beyond the statutory text to “a narrow,

specified set of documents that includes . . . guilty pleas.”2 Id.

(internal quotation marks omitted). If the information in those

documents does not establish that the petitioner’s conviction

meets the requirements of the INA provision, then the convic-

tion is not a removable offense under that provision. Id.

The BIA held that Petitioner’s state convictions meet the

requirements of 8 U.S.C. § 1227(a)(2)(E)(ii), which is titled

“[v]iolators of protection orders” and reads in full:

Any alien who at any time after admission is

enjoined under a protection order issued by a court

and whom the court determines has engaged in con-

duct that violates the portion of a protection order

that involves protection against credible threats of

violence, repeated harassment, or bodily injury to the

person or persons for whom the protection order was

2

We recently granted en banc review to consider what documents may

be used in the modified categorical approach. United States v. Snellenber-

ger, 519 F.3d 908 (9th Cir. 2008). The documents involved here, guilty

pleas, fall safely within the range of documents that we may examine. See

Shepard v. United States, 544 U.S. 13, 26 (2005) (specifically identifying

a guilty plea as a document on which a court may rely). There is no danger

that Snellenberger will affect this case.

12132 ALANIS-ALVARADO v. MUKASEY

issued is deportable. For purposes of this clause, the

term “protection order” means any injunction issued

for the purpose of preventing violent or threatening

acts of domestic violence, including temporary or

final orders issued by civil or criminal courts (other

than support or child custody orders or provisions)

whether obtained by filing an independent action or

as a pendente lite order in another proceeding.

Petitioner was convicted of violating California Penal Code

section 273.6, which reads in relevant part:

(a) Any intentional and knowing violation of a

protective order, as defined in Section 6218 of the

Family Code, or of an order issued pursuant to Sec-

tion 527.6 or 527.8 of the Code of Civil Procedure,

or Section 15657.03 of the Welfare and Institutions

Code, is a misdemeanor punishable by a fine of not

more than one thousand dollars ($1,000), or by

imprisonment in a county jail for not more than one

year, or by both that fine and imprisonment.

[2] Examining the “full range of conduct” proscribed by

section 273.6, Petitioner’s conviction does not suffice under

the categorical approach. The range of orders that may be

issued under the state statute is broad, and the statute plainly

encompasses orders outside the scope of the INA provision.

For instance, some orders issued under the civil procedure

code or welfare code have nothing to do with domestic vio-

lence. See, e.g., Cal. Civ. Proc. Code 527.6(c) (authorizing a

court to issue a temporary restraining order against any per-

son, without regard to the existence or nature of a relationship

between the assailant and the victim). Indeed, the government

concedes that a conviction under California Penal Code sec-

tion 273.6 does not satisfy the categorical test.

We therefore “proceed to a ‘modified categorical

approach.’ ” Ferreira, 390 F.3d at 1095. The guilty pleas in

ALANIS-ALVARADO v. MUKASEY 12133

the record establish that Petitioner was convicted, more spe-

cifically, of violating an “order obtained pursuant to Section

6320 and 6389 of the [California] Family Code.” We there-

fore must determine whether a conviction for violating an

order obtained pursuant to sections 6320 and 6389 of the Cali-

fornia Family Code necessarily meets the requirements of the

INA provision. Although this inquiry rides under the banner

of the “modified categorical approach,” the guilty pleas here

tell us only which combination of statutes authorized the pro-

tection order that Petitioner violated. Our modified categorical

inquiry is therefore identical to a categorical inquiry: whether

the INA provision embraces the “full range of conduct” under

those state statutes. It is a kind of modified categorical inquiry

nonetheless, because it is a second-tier inquiry.

Section 6320 of the California Family Code states in full:

The court may issue an ex parte order enjoining a

party from molesting, attacking, striking, stalking,

threatening, sexually assaulting, battering, harassing,

telephoning, including, but not limited to, annoying

telephone calls as described in Section 653m of the

Penal Code, destroying personal property, contact-

ing, either directly or indirectly, by mail or other-

wise, coming within a specified distance of, or

disturbing the peace of the other party, and, in the

discretion of the court, on a showing of good cause,

of other named family or household members.

Cal. Fam. Code § 6320 (2003).3 Section 6389 of the Califor-

nia Family Code provides, in part, that “[a] person subject to

a protective order, as defined in Section 6218, shall not own,

possess, purchase, or receive a firearm while that protective

order is in effect.” Cal. Fam. Code § 6389(a).

3

The section was amended in 2007. All references in this opinion are

to the 2003 version because it was the version in effect when the court

issued the protective orders and when Petitioner was convicted.

12134 ALANIS-ALVARADO v. MUKASEY

The parties agree that section 6389 does not, by itself,

authorize a court to issue a protective order. Instead, when-

ever a court issues a protective order, the provisions of section

6389 are triggered automatically. Our conclusion is confirmed

by the definition of “protective order” in the California Fam-

ily Code, which includes only orders issued under sections

6320, 6321, and 6322. Cal. Fam. Code § 6218. In sum,

although Petitioner’s guilty pleas state that he violated an

“order issued pursuant to Section 6320 and 6389 of the [Cali-

fornia] Family Code,” (emphasis added), we conclude that the

protective order was issued pursuant to section 6320 only and

that section 6389 then applied automatically.

Having sorted out the various state statutes, we turn to the

question whether Petitioner’s convictions meet the require-

ments of the INA provision. Petitioner argues that his convic-

tions do not meet two of the statute’s requirements. First, he

argues that he was not “enjoined under a protection order.” 8

U.S.C. § 1227(a)(2)(E)(ii). The INA provision itself defines

“protection order”: “For purposes of this clause, the term

‘protection order’ means any injunction issued for the purpose

of preventing violent or threatening acts of domestic violence

. . . .” Id. Petitioner argues that the “protective order” under

section 6320 of the California Family Code does not meet the

federal definition of “protection order” because, under section

6320, a protective order can be issued for a purpose other than

“preventing violent or threatening acts of domestic violence.”

We disagree.

[3] Section 6320 is part of the “Domestic Violence Preven-

tion Act.” Cal. Fam. Code § 6200. The Code defines a “pro-

tective order,” in part, as “[a]n order described in Section

6320 enjoining specific acts of abuse.” Id. § 6218 (emphasis

added). A protective order may be issued only upon a show-

ing of “reasonable proof of a past act or acts of abuse.” Id.

§ 6300. The provisions of section 6389—which applied to

Petitioner via the protective orders—prohibit, among other

things, the ownership of a firearm. Thus, section 6320 is part

ALANIS-ALVARADO v. MUKASEY 12135

of a statute that, in its entirety, aims to prevent domestic vio-

lence, authorizes a court to enjoin abusive acts, upon a show-

ing of a past act of abuse, and automatically prohibits the

ownership of a firearm. There is no doubt that protective

orders issued pursuant to section 6320 have, as at least one

“purpose,” “preventing violent or threatening acts of domestic

violence.” 8 U.S.C. § 1227(a)(2)(E)(ii).

[4] Petitioner next argues that his convictions fail to meet

the requirement that “the [state] court determine[d] [that Peti-

tioner] has engaged in conduct that violates the portion of a

protection order that involves protection against credible

threats of violence, repeated harassment, or bodily injury to

the person or persons for whom the protection order was

issued.” Id. Petitioner argues that, because it is unknown

exactly what portion of the protective order he violated, that

requirement is not met. We agree that the record does not

establish what portion of the protective order Petitioner vio-

lated. But every portion of a protective order issued under

section 6320 “involves protection against credible threats of

violence, repeated harassment, or bodily injury.” 8 U.S.C.

§ 1227(a)(2)(E)(ii).

Section 6320, which we quoted in full above, authorizes a

court to enjoin a wide range of conduct. Most of that conduct

(e.g., “molesting, attacking, striking, stalking, threatening,

sexually assaulting, battering, [and] harassing”) clearly

involves violence, threats, or harassment. Petitioner points out

that some of the conduct, though, is not inherently violent,

threatening, or harassing in nature. True enough; some acts,

such as telephoning one’s domestic partner or coming within

a specified distance of him or her, do not typically constitute

violence, threats, or harassment. Indeed, such conduct is

entirely expected in normal interactions. But Petitioner’s

argument ignores the crucial context: At the time of his con-

duct, he was subject to a protective order. As noted above,

courts may issue a protective order only upon a showing of

a past act of abuse. Cal. Fam. Code § 6300. When a court has

12136 ALANIS-ALVARADO v. MUKASEY

enjoined a person from, for example, telephoning his domes-

tic partner in the context of a domestic violence protective

order, the injunction involves protection against threats and

harassment.

[5] Under the Taylor analysis, we must be able to conclude

that the “full range of conduct” that Petitioner may have com-

mitted falls within the scope of the INA provision. We

acknowledge that the protective order may have enjoined

Petitioner from making even a single telephone call to his

partner, and Petitioner may have placed a non-threatening and

non-harassing telephone call.4 If the INA provision required

the state court to find that Petitioner actually had engaged in

violent, threatening, or harassing behavior, we would con-

clude that Petitioner’s convictions do not qualify categori-

cally. But the INA provision requires something different:

that the state court conclude that Petitioner violated “the por-

tion of a protection order that involves protection against”

violence, threats, or harassment. 8 U.S.C. § 1227(a)(2)(E)(ii)

(emphasis added). As discussed above, an injunction against

making a telephone call (and all the other enumerated acts in

section 6320) “involves protection against” violence, threats,

or harassment, even if it is possible that Petitioner’s violative

conduct did not independently constitute violence, threats, or

harassment.

In sum, Congress designated violations of certain protec-

tion orders as removable offenses under 8 U.S.C.

§ 1227(a)(2)(E)(ii). Congress limited the reach of that provi-

4

We do so with hesitation. The Supreme Court has admonished us that

“to find that a state statute creates a crime outside the generic definition

of a listed crime in a federal statute requires more than the application of

legal imagination to a state statute’s language. It requires a realistic proba-

bility, not a theoretical possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a crime.” Gonzales v.

Duenas-Alvarez, 127 S. Ct. 815, 822 (2007). Because our conclusion is

unaffected by Petitioner’s example of benign behavior, we need not deter-

mine whether a conviction for such behavior is a “realistic probability.”

ALANIS-ALVARADO v. MUKASEY 12137

sion, however, by restricting it to violations of a portion of a

protection order aimed at violent, threatening, and harassing

behavior. Under our interpretation, that restriction is not

empty. For instance, “[m]any states allow the court to order

support for the spouse or children as part of a protection

order.” 1 Arnold H. Rutkin, Family Law and Practice

§ 6.02[5], p. 6-64 (2007); see, e.g., Or. Rev. Stat.

§ 107.718(1)(h) (allowing a protection order to include an

award of monetary assistance); Nev. Rev. Stat. § 33.030(2)(c)

(allowing a protection order to include an award of monetary

assistance including rent payments, child support, court costs

and attorney fees, and compensation for lost earnings). A con-

viction for violating a protection order issued under such a

statute would require additional proof as to “what portion” of

the protection order was violated. Section 6320 of the Califor-

nia Family Code, however, authorizes an injunction only for

protection against violent, threatening, and harassing behav-

ior. We therefore conclude that Petitioner’s convictions qual-

ify as offenses defined in 8 U.S.C. § 1227(a)(2)(E)(ii).

Petition for review DENIED.

RAWLINSON, Circuit Judge, concurring in part and dissent-

ing in part:

I concur in that portion of the majority opinion concluding

that Petitioner’s convictions do not constitute violations of a

protection order under 8 U.S.C. § 1227(a)(2)(E)(ii) when ana-

lyzed pursuant to the categorical approach articulated in Tay-

lor v. United States, 495 U.S. 575, 600-601 (1990). I

respectfully dissent from that portion of the majority opinion

concluding that Petitioner’s convictions constitute violations

of a protection order under the modified categorical approach

articulated in Taylor. See id.

As the majority opinion recognizes, under the modified cat-

egorical approach, the pertinent documents in the record must

12138 ALANIS-ALVARADO v. MUKASEY

establish that Petitioner’s conviction meets the requirements

of 8 U.S.C. § 1227(a)(2)(E)(ii). In this case, the pertinent doc-

uments are Petitioner’s guilty pleas and the Complaints.

Therefore, for Petitioner’s convictions to constitute disquali-

fying offenses, the Complaints and guilty pleas must establish

that his crimes of conviction fell within the provisions of 8

U.S.C. § 1227(a)(2)(E)(ii), which proscribes:

conduct that violates the portion of a protection

order that involves protection against credible

threats of violence, repeated harassment or bodily

injury to the person or persons for whom the protec-

tion order was issued . . .

8 U.S.C. § 1227(a)(2)(E)(ii). Our task, under the modified cat-

egorical approach, is to determine whether Petitioner’s Com-

plaints and guilty pleas established that he violated “the

portion of a protection order that involves protection against

credible threats of violence, repeated harassment or bodily

injury . . .” Id.

In this case, however, Petitioner’s guilty pleas did no more

than state that he violated California Penal Code Section

273.6. The guilty pleas did not establish, as the majority opin-

ion represents, that Petitioner was convicted “of violating an

order obtained pursuant to Section 6320 and 6389 of the [Cal-

ifornia] Family Code.” Although Petitioner was charged with

“violating an order obtained pursuant to Section 6320 and

6389,” he did not plead guilty “as charged in the Complaint,”

see United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.

2007) (en banc), or plead guilty to “violating an order

obtained pursuant to Section 6320 and 6389,” see United

States v. Martinez-Martinez, 468 F.3d 604, 613 (9th Cir.

2006) (concluding that recitation of the statutory elements is

insufficient to establish the nature of a prior conviction where

the statute of conviction is overly broad). In such a circum-

stance, we have held that the modified categorical approach

is not satisfied. See United States v. Lopez-Montanez, 421

ALANIS-ALVARADO v. MUKASEY 12139

F.3d 926, 931 (9th Cir. 2005) (holding documents insufficient

when they “simply restate the language of the statute” and

defendant enters a plea without elaboration); see also United

States v. Kovac, 367 F.3d 1116, 1119-20 (9th Cir. 2004)

(rejecting as insufficient documents that “merely recite[d] the

statutory section and title” without detailing the facts to which

defendant pled); Sandoval-Leia v. Gonzales, 499 F.3d 1121,

1132 (9th Cir. 2007) (noting, in a related context, that the doc-

uments in the record must establish that the defendant “neces-

sarily admitted” the elements of the qualifying offense);

Cisneros-Perez v. Gonzalez, 465 F.3d 386, 391 (9th Cir.

2006), as amended (concluding that the prior conviction was

not established under the modified categorical approach

where the judgment record did not establish that “the defen-

dant” necessarily pleaded . . . to the allegations in the original

complaint) (emphasis added); Rebilas v. Mukasey, 527 F.3d

783, 787 (9th Cir. 2008), as amended (holding that applica-

tion of the modified categorical approach did not establish a

covered conviction where the judgment of conviction did not

contain “the factual basis for the crime”); Martinez-Perez v.

Gonzales, 417 F.3d 1022, 1029 (9th Cir. 2005), as amended

(determining that the record of conviction was inadequate

where it reflected only a guilty plea to the statute of convic-

tion); Renteria-Morales v. Mukasey, Nos. 04-74742, 06-

73283, 2008 WL 2676073 (9th Cir. July 10, 2008) (noting

that inferences are inadequate to meet the government’s bur-

den unless “such inferences are necessary”).

Simply put, our precedent does not countenance the conclu-

sion reached by the majority. To the contrary, we have consis-

tently held that, under the modified categorical approach, a

guilty plea must, at a minimum, reference the allegations in

the charging document to establish a predicate conviction. See

Vidal, 504 F.3d at 1087. Because the skeletal documents in

this case do not establish that the Petitioner pled guilty to vio-

lating a protection order as described in 8 U.S.C.

§ 1227(a)(2)(E)(ii), I would grant the petition for review.