Alanis-Alvarado v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALANIS-ALVARADO,  No. 06-72369
Petitioner, Agency No.
v. A92-611-947
ERIC H. HOLDER, JR.,* Attorney ORDER
General, AMENDING
Respondent.
 OPINION AND
DENYING
PETITIONS FOR
REHEARING AND
REHEARING EN
BANC AND
AMENDED
 OPINION
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
Amended March 3, 2009
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
*Eric H. Holder, Jr., is substituted for his predecessor, Michael B.
Mukasey, as Attorney General.
2525
2528 ALANIS-ALVARADO v. HOLDER
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.
ALANIS-ALVARADO v. HOLDER 2529
ORDER
The opinion filed on September 3, 2008, slip opinion page
12125, and published at 541 F.3d 966, is amended by the
opinion filed concurrently with this order.
With these amendments, Judges Alarcon and Graber have
voted to deny the petition for rehearing, and Judge Rawlinson
has voted to grant it. Judge Graber has voted to deny the peti-
tion for rehearing en banc, and Judge Alarcon has so recom-
mended. Judge Rawlinson has voted to grant the petition for
rehearing en banc.
The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested a vote on it.
The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions for rehearing or for
rehearing en banc may be filed.
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-
2530 ALANIS-ALVARADO v. HOLDER
dent of the United States in 1990. Twice in 2003, he pleaded
guilty to violating section 273.6 of the California Penal Code.
The records of conviction establish that:
On or about 8/14/03 [or 7/28/03] the crime of DIS-
OBEYING COURT ORDER, in violation of Section
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.
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. HOLDER 2531
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).
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), recognized as overruled on other
grounds by Kawashima v. Mukasey, 530 F.3d 1111, 1116 (9th
Cir. 2008). 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 cate-
gorically a removable offense. Id. (internal quotation marks
omitted). If not, “we then proceed to a ‘modified categorical
approach.’ ” Id. “Under the modified categorical approach,
we conduct a limited examination of the documents in the
record of conviction . . . [to] determine whether there is suffi-
cient evidence to conclude that the alien was convicted of the
elements of the generically defined crime even though his or
her statute of conviction was facially overinclusive.” Id. (cita-
tion and internal quotation marks omitted). If the information
in the record of conviction does not establish that the petition-
er’s conviction meets the requirements of the INA provision,
then the conviction is not a removable offense under that pro-
vision. 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
2532 ALANIS-ALVARADO v. HOLDER
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
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
ALANIS-ALVARADO v. HOLDER 2533
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 records of con-
viction establish that Petitioner was convicted, more specifi-
cally, of violating an “order obtained pursuant to Section 6320
and 6389 of the [California] Family Code.” We therefore
must determine whether a conviction for violating an order
obtained pursuant to sections 6320 and 6389 of the California
Family Code necessarily meets the requirements of the INA
provision.2 Although this inquiry rides under the banner of the
“modified categorical approach,” the records of conviction
here tell us only which combination of statutes authorized the
protection order that Petitioner violated. Our modified cate-
gorical inquiry is therefore identical to a categorical inquiry:
whether the INA provision embraces the “full range of con-
duct” under those state statutes. It is a kind of modified cate-
gorical inquiry nonetheless, because it is a second-tier inquiry.
2
Petitioner belatedly argues that his convictions were not necessarily for
violating an order issued pursuant to sections 6320 and 6389 of the Cali-
fornia Family Code, citing United States v. Vidal, 504 F.3d 1072 (9th Cir.
2007) (en banc). Before the BIA, Petitioner did not make that argument
and, indeed, affirmatively acknowledged that “the ROC [record of convic-
tion] shows that [Petitioner] violated a court order pursuant to California
Family Code §§ 6320 or 6389.” In his opening brief before us, Petitioner
did not raise the argument; to the contrary, he affirmatively represented
that he “was convicted of Disobeying a Court Order in violation of [Cali-
fornia Penal Code] § 273.6 pursuant to Section[s] 6320 and 6389 of the
[California] Family Code.” We therefore do not address the argument. See
Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008) (“The BIA is not
required to anticipate objections that [the petitioner] utterly failed to make,
and we lack jurisdiction to address them here.”); Cerezo v. Mukasey, 512
F.3d 1163, 1165 n.5 (9th Cir. 2008) (“[The petitioner’s] opening brief
does not raise this issue, and it is therefore waived.”); Squaw Valley Dev.
Co. v. Goldberg, 395 F.3d 1062, 1064 (9th Cir. 2005) (order) (denying a
petition for rehearing because the argument was “raised for the first time
in [the party’s] petition for rehearing”).
2534 ALANIS-ALVARADO v. HOLDER
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).
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 records of conviction establish that he
violated an “order issued pursuant to Section 6320 and 6389
of the [California] Family Code,” (emphasis added), we con-
clude 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
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.
ALANIS-ALVARADO v. HOLDER 2535
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
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).
We also observe that the federal definition of a “protection
order” is an injunction “issued for the purpose of preventing
violent or threatening acts of domestic violence.” Id. (empha-
sis added). That is, the definition is entirely forward-looking,
not backward-looking; we must consider the future and what
the protective order is trying to keep from happening later, not
2536 ALANIS-ALVARADO v. HOLDER
to what happened in the past to cause issuance of the order.
To that end, we again note that, under California law, every
person enjoined under a section 6320 order automatically is
prohibited from “own[ing], possess[ing], purchas[ing], or
receiv[ing] a firearm while that protective order is in effect.”
Cal. Family Code § 6389(a). That prohibition can be
explained only as having the purpose of preventing violent or
threatening acts, as contemplated by the federal definition of
“protection order.” In other words, even though the past abu-
sive conduct may not have been “violent or threatening,” the
federal definition does not require that. With respect to the
purpose of a section 6320 order under California law, every
such order undoubtedly and necessarily aims to prevent esca-
lation into domestic violence.
[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.” 8 U.S.C. § 1227(a)(2)(E)(ii). 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 violated. 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
ALANIS-ALVARADO v. HOLDER 2537
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
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,
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, 549 U.S. 183, 193 (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.”
2538 ALANIS-ALVARADO v. HOLDER
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-
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-
ALANIS-ALVARADO v. HOLDER 2539
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
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 records of conviction. Therefore, for
Petitioner’s convictions to constitute disqualifying offenses,
the records of conviction must establish that his crimes 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
records of conviction established that he violated “the portion
of a protection order that involves protection against credible
threats of violence, repeated harassment or bodily injury . . .”
Id.1
1
The majority has amended its opinion to now represent that Alanis-
Alvarado “belatedly argues that his convictions were not necessarily for
violating an order issued pursuant to sections 6320 and 6389 of the Cali-
fornia Family Code, citing United States v. Vidal, 504 F.3d 1072 (9th Cir.
2007) (en banc).” However, the majority’s representation somewhat mis-
characterizes Alanis-Alvarado’s position. Alanis-Alvarado has consis-
tently maintained that the statute of conviction is overbroad and the
judicially noticeable documents do not establish a removable offense.
Indeed, that is the very point for which he cited Vidal. In any event, we
review the BIA’s determination that “all of the actions proscribed by sec-
2540 ALANIS-ALVARADO v. HOLDER
In this case, however, Petitioner’s records of convictions
did no more than state that he violated California Penal Code
Section 273.6. The records of conviction did not establish, as
the majority opinion represents, that Petitioner was convicted
“of violating an order obtained pursuant to Section 6320 and
6389 of the [California] 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 Vidal, 504 F.3d at 1087, 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 con-
viction where the statute of conviction is overly broad). In
such a circumstance, we have held that the modified categori-
cal approach is not satisfied. See United States v. Lopez-
Montanez, 421 F.3d 926, 931 (9th Cir. 2005) (holding docu-
ments 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 con-
text, that the documents in the record must establish that the
defendant “necessarily admitted” the elements of the qualify-
ing offense); Cisneros-Perez v. Gonzalez, 465 F.3d 386, 391
(9th Cir. 2006), as amended (concluding that the prior convic-
tion was not established under the modified categorical
approach where the judgment record did not establish that
“the defendant” necessarily pleaded . . . to the allegations in
the original complaint) (emphasis added); Rebilas v. Mukasey,
tion 6320 of the California Family Code necessarily involve protection
against credible threats of violence, repeated harassment of, or bodily
injury to, the person for whom the protection order was issued.” That is
precisely the issue on which I part company with the majority.
ALANIS-ALVARADO v. HOLDER 2541
527 F.3d 783, 787 (9th Cir. 2008), as amended (holding that
application of the modified categorical approach did not
establish a covered conviction where the judgment of convic-
tion 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 conviction); 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 govern-
ment’s burden 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 USC
§ 1227(a)(2)(E)(ii), I would grant the petition for review.