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Interim Decision #3674

Matter of Santos Enrique MILIAN-Dubon, Respondent

File A047 042 904 - San Diego, California

Decided February 19, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

In applying the modified categorical approach to assess an alien’s conviction, it is proper

to consider the contents of police reports as part of the record of conviction if they were

specifically incorporated into the guilty plea or were admitted by the alien during the

criminal proceedings.

FOR RESPONDENT: John Richard Smith, Esquire, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Megan Berry Oshiro, Assistant

Chief Counsel

BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members.

MALPHRUS, Board Member:

In a decision dated November 27, 2007, an Immigration Judge terminated

the removal proceedings against the respondent upon his finding that the

Department of Homeland Security (“DHS”) failed to establish the respondent’s

removability under section 237(a)(2)(E)(i) of the Immigration and Nationality

Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), as an alien convicted of a crime

of domestic violence. The DHS has appealed from that decision. The

respondent has filed a brief in response. The DHS’s appeal will be sustained,

and the record will be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who was admitted

to the United States on June 7, 1999, as a lawful permanent resident. On

June 11, 2004, the respondent pled guilty to battery of his spouse in violation

of section 243(e)(1) of the California Penal Code. The DHS charged that the

respondent is removable under section 237(a)(2)(E)(i) of the Act based on his

conviction for a crime of domestic violence. The Immigration Judge

determined that the respondent’s record of conviction consisted of the criminal

complaint and the guilty plea, and he concluded that these documents did not

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Interim Decision #3674

provide sufficient evidence to establish that the respondent was convicted

of a crime of violence. He therefore terminated the proceedings.

On appeal the DHS argues that the Immigration Judge erred in excluding

from his “modified categorical” analysis of the respondent’s conviction

a police report that formed the factual basis for his guilty plea. Thus, the DHS

contends that it has established by clear and convincing evidence that the

respondent is removable as charged and that the Immigration Judge erred

in terminating these proceedings. The respondent maintains that the

Immigration Judge correctly excluded the police report from his analysis

of the conviction. We review de novo the Immigration Judge’s determination

on this question of law. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also

Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N

Dec. 493 (BIA 2008).

II. ANALYSIS

The term “crime of domestic violence” means “any crime of violence

(as defined in [18 U.S.C. § 16]) against a person” committed by, inter alia,

a current or former spouse of the person. Section 237(a)(2)(E)(i) of the Act.

The term “crime of violence” is defined in 18 U.S.C. § 16 (2006) as (a) an

offense that “has as an element the use, attempted use, or threatened use

of physical force against the person or property of another,” or (b) any other

offense that is a felony and that, “by its nature, involves a substantial risk

that physical force against the person or property of another may be used

in the course of committing the offense.” Thus, an offense cannot qualify

as a “crime of domestic violence” unless it is also a “crime of violence”

as defined by 18 U.S.C. § 16.

Section 243(e)(1) of the California Penal Code punishes a battery committed

“against a spouse, a person with whom the defendant is cohabiting, a person

who is the parent of the defendant’s child, former spouse, fiancé, or fiancée,

or a person with whom the defendant currently has, or has previously

had, a dating or engagement relationship.” “Battery” is defined by section 242

of the California Penal Code as “any willful and unlawful use of force

or violence upon the person of another.” Under the case law of the

United States Court of Appeals for the Ninth Circuit, in whose jurisdiction

this case arises, battery under section 242 requires neither a force

capable of hurting or causing injury nor violence in the usual sense of the term,

so it does not qualify categorically as a crime of violence under 18 U.S.C.

§ 16. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); Matter

of Sanudo, 23 I&N Dec. 968, 973-74 (BIA 2006). Thus, the respondent’s

offense is not categorically a crime of domestic violence. We must therefore

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Interim Decision #3674

employ the modified categorical approach described in Taylor v. United States,

495 U.S. 575 (1990), to determine whether the respondent’s conviction is for

a crime of domestic violence.

In the Ninth Circuit, the modified categorical approach only applies

when the particular elements of the crime of conviction are broader than

the generic crime, and it cannot be applied when the crime of conviction

is missing an element of the generic crime altogether. Aguilar-Turcios

v. Holder, 582 F.3d 1093 (9th Cir. 2009) (citing Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1073 (9th Cir. 2007)).1 In Navarro-Lopez v. Gonzales, the

issue was whether an alien’s conviction for accessory after the fact in violation

of section 32 of the California Penal Code was for an offense within the

generic definition of a crime involving moral turpitude. The court concluded

that since the offense of accessory after the fact under section 32 was missing

the “depravity” element of a generic crime involving moral turpitude, the

crime of conviction could never be narrowed to conform to the generic crime.

Navarro-Lopez v. Gonzales, 503 F.3d at 1070-73.

Since “battery” is an element of section 243(e)(1) of the California Penal

Code, the statute under which the respondent was convicted, and it is defined

by section 242 of the California Penal Code as “any willful and unlawful use

of force or violence,” it is encompassed within the generic crime of domestic

violence and is not missing any element of the generic offense. Thus,

Navarro-Lopez v. Gonzales is not applicable to the instant case and requires

no further analysis here.

In applying the modified categorical approach to assess an alien’s

conviction, the Immigration Judge and the Board may look beyond the

language of the statute of conviction to a specific set of judicially noticeable

documents that are part of the record of conviction, including the charging

document, the judgment of conviction, jury instructions, a signed guilty plea,

the transcript from the plea proceedings, and any explicit factual findings

by the trial judge to which the alien assented in the criminal proceedings.

Shepard v. United States, 544 U.S. 13, 16, 26 (2005); Sandoval-Lua

v. Gonzales, 499 F.3d 1121, 1129 (9th Cir. 2007); Larin-Ulloa v. Gonzales,

462 F.3d 456, 464, 468 (5th Cir. 2006); Canada v. Gonzales, 448 F.3d 560,

566 (2d Cir. 2006); Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004);

see also Garcia v. Att’y Gen. of U.S., 462 F.3d 287, 292 (3d Cir. 2006)

(finding that it is appropriate to examine the criminal complaint, which was the

relevant charging instrument, under the modified categorical approach);

1

We are aware of no other circuit that has adopted the same strict limitation on the

application of the modified categorical approach. See Aguilar-Turcios v. Holder, 582 F.3d

at 1108-09 (Bybee, J., dissenting). We do not intend to suggest that this approach should

be applied in cases outside of this circuit.

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Interim Decision #3674

Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir. 2006) (stating that consultation

of the indictment and final judgment, which included a restitution order, was

proper in an aggravated felony case, because those documents comprised

“‘conclusive [judicial] records made or used in adjudicating guilt’” (quoting

Shepard v. United States, 544 U.S. at 21)); Vue v. INS, 92 F.3d 696, 700 (8th

Cir. 1996) (finding that it was proper to consider an amended criminal

complaint in making a deportation determination where the complaint

demonstrated on its face with sufficient clarity and reliability that the alien was

convicted of using a firearm and thus that his violation was of the type

contemplated by the deportation statute relating to firearms offenses). It is also

proper to consider a comparable judicial record, including the clerk’s minute

order prepared by a neutral officer of the court, provided the defendant had the

right to examine and challenge its accuracy during the criminal proceedings.

United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008); see also

Fregezo v. Holder, 576 F.3d 1030, 1039 n.7 (9th Cir. 2009). “The use of [such

judicially noticeable] documents is permitted because they are considered

sufficiently conclusive and reliable to establish the facts to which the alien

actually pleaded guilty.” Larin-Ulloa v. Gonzales, 462 F.3d at 464 (citing

Shepard v. United States, 544 U.S. at 23).2

In this case, the relevant conviction documents include the criminal

complaint and the respondent’s signed guilty plea. Count 2 of the complaint

charges that on or about June 3, 2004, the respondent did willfully and

unlawfully use force and violence upon his wife, in violation of section

243(e)(1) of the California Penal Code. The signed guilty plea reflects that the

respondent pled guilty to Count 2 and stipulated to the police report prepared

in connection with his arrest as the factual basis for his guilty plea. While

a police report, standing alone, is not part of the record of conviction, Matter

of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996), the respondent’s decision

to incorporate the police report into the guilty plea made the report an “explicit

statement ‘in which the factual basis for the plea was confirmed by the

[respondent].’” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)

(quoting Shepard v. United States, 544 U.S. at 26, and concluding that the

contents of police reports may be considered for the purpose of applying the

modified categorical approach if they have been “specifically incorporated into

2

In Evanson v. Att’y Gen. of U.S., 550 F.3d 284, 292-93 (3d Cir. 2008), which concerned

whether the defendant’s State conviction for possessing marijuana with intent to deliver

qualified as a “drug trafficking offense,” the Third Circuit rejected consideration of the

factual assertions in the judgment of sentence, which are facts that a judge considers

in making a discretionary sentencing determination, because they were “not necessarily

admitted by the defendant.” The court noted that it is proper to consider the charging

document to the extent that the defendant was actually convicted of the charges. Id. at 293.

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the guilty plea or admitted by a defendant”); see also United States

v. Almazan-Becerra, 537 F.3d 1094, 1097-1100 (9th Cir. 2008); Suazo Perez

v. Mukasey, 512 F.3d 1222, 1226 (9th Cir. 2008) (considering a police report

under the modified categorical approach where the alien had agreed that the

criminal court could review such reports supplied by the prosecution

to establish a factual basis for his plea).

The respondent argues that the police report should not be considered

because it was never admitted into the record of his criminal proceedings

or incorporated into the criminal complaint. We disagree. In this case, the

plea agreement references the police report as the “factual basis” for the

respondent’s plea per People v. West, 477 P.2d 409 (1970). The plea form

contains the handwritten statement “stip to police report as factual basis,” and

the respondent initialed the statement. “[T]his document serves as the

‘findings of fact adopted by the defendant upon entering the plea,’ which

is part of the judicial record on which the . . . courts may rely.” United States

v. Hernandez-Hernandez, 431 F.3d 1212, 1217-18 (9th Cir. 2005) (quoting

Shepard v. United States, 544 U.S. at 20).3

It was not necessary for the respondent to acknowledge the truth of every

statement in the police report or for the judge in the criminal case to have

specifically reviewed or referenced the report during the plea proceedings. See

United States v. Almazan-Becerra, 537 F.3d at 1099-1100 (permitting reliance

on police reports where the defendant stipulated generally that the reports and

other documents within the court file contained a factual basis for his guilty

plea, without specifically identifying which police reports contained the factual

basis); cf. United States v. Kirksey, 138 F.3d 120, 125-26 (4th Cir. 1998)

(finding that it was proper to consider the charging documents, which

included an Application for Statement of Charges/Statement of Probable

Cause that incorporated the sworn statements of complaining witnesses,

in analyzing the defendant’s convictions). Also, contrary to the respondent’s

3

In deciding not to consider the police report as part of the respondent’s record

of conviction, the Immigration Judge followed the reasoning of a Ninth Circuit

panel in United States v. Almazan-Becerra, 482 F.3d 1085, 1090-91 (9th Cir. 2007),

which declined to accept police reports as the factual basis for the alien’s plea because his

plea was disjunctive and the police reports did not necessarily contain either his own account

of the events or a mutually agreed-upon statement of facts. In that decision, the court did

not decide whether police reports could be considered but rather remanded the case so the

In United States

district court could decide the issue in the first instance.

v. Almazan-Becerra, 537 F.3d at 1098, which was issued subsequent to the Immigration

Judge’s decision, a different panel of the Ninth Circuit found that the district court properly

relied on the police reports in the record, concluding that they became a mutually

agreed-upon statement of facts when the alien stipulated that they contained a factual basis

for his plea.

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argument, it is not necessary that the copy of the police report relied on in the

immigration proceedings be obtained from the files of the criminal case. The

only requirement is that the police report or reports relied on in the

immigration proceedings be incorporated by reference as at least part of the

factual basis for the guilty plea. Thus, the Immigration Judge erred in failing

to view the police report as part of the record of conviction and to consider its

contents in applying the modified categorical analysis. Suazo Perez

v. Mukasey, 512 F.3d 1222.

Accordingly, we find it necessary to remand the record to the Immigration

Judge for further proceedings. On remand, the Immigration Judge should

consult the police report to determine whether the DHS has demonstrated that

the respondent’s offense is a crime of domestic violence that renders him

removable as charged. The DHS’s appeal will be sustained, and the record

will be remanded.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated,

and the record is remanded to the Immigration Judge for further proceedings

consistent with the foregoing and for the entry of a new decision.

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