Szalai v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERENC SZALAI,  No. 06-74994
Petitioner
v.  Agency No.
A26-262-804
ERIC H. HOLDER JR.*
OPINION
Respondent

Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted
October 24, 2008—Portland, Oregon
Filed July 16, 2009
Before: A. Wallace Tashima and Milan D. Smith, Jr.,
Circuit Judges, and George H. Wu,** District Judge.
Per Curiam Opinion;
Concurrence by Judge Wu
* Eric H. Holder Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
** The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
9089
9092 SZALAI v. HOLDER
COUNSEL
Teresa A. Statler, Immigration Law Office of Teresa A.
Statler, Portland, Oregon for the petitioner.
Wendy Benner-Leon, U.S. Department of Justice, Civil Divi-
sion, Office of Immigration Litigation, Washington, D.C. for
the respondent.
OPINION
PER CURIAM:
The question raised in this case is whether a judgment hold-
ing an individual in contempt for disobeying the “stay away”
portion of a restraining order issued pursuant to Oregon’s
Family Abuse Prevention Act (“FAPA”), Oregon Revised
Statutes §§ 107.700 to 107.735 (2007), qualifies as a violation
of a “protection order” under 8 U.S.C. § 1227(a)(2)(E)(ii).
Petitioner Ferenc Szalai, a native and citizen of Hungary and
a lawful permanent resident of this nation, appeals from an
order of the Board of Immigration Appeals (“BIA”) dismiss-
ing his appeal and affirming the decision of an Immigration
Judge (“IJ”) which denied his request for cancellation of
removal and other forms of relief. We have jurisdiction pursu-
ant to 8 U.S.C. § 1252 and we deny the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2002, Petitioner’s ex-wife obtained a FAPA
“Restraining Order to Prevent Abuse” from the Circuit Court
for the State of Oregon, Washington County. That restraining
order contained a number of separate provisions, including
terms 1) enjoining Petitioner from “intimidating, molesting,
interfering with or menacing” his ex-wife or any minor chil-
dren in her custody (or attempting to do any of those things),
SZALAI v. HOLDER 9093
2) enjoining Petitioner from entering or attempting to enter
various locations, including his ex-wife’s residence and areas
within 100 yards of his ex-wife or her residence, and 3)
enjoining Petitioner from contacting or attempting to contact
his ex-wife in person or through “3rd party contact” by phone,
mail and e-mail (except “regarding parenting time” with his
children). However, the restraining order was soon thereafter
modified to permit Petitioner to pick up the children from or
deliver them to his ex-wife’s residence so long as he remained
curbside and (except to put a child in a car seat) inside his
vehicle.
On February 18, 2002, Petitioner returned his son to his ex-
wife’s residence and walked halfway up the driveway.1 A
“Judgment on Contempt Hearing” reflects that, on April 29,
2002, the Washington County Circuit Court found Petitioner,
beyond a reasonable doubt, in “wilful contempt for violation
of the restraining order” in connection with the February 18
incident.2 In particular, the court found that Petitioner had vio-
1
This fact is derived from an Affidavit in Support of Probable Cause
Arrest and from an incident report that was part of a police report, both
of which were filed in connection with the violation of restraining order
contempt proceedings and which appear to have been before both the IJ
and the BIA. Ordinarily, we could not rely upon those sources to establish
this fact if we follow the “modified” categorical approach that Petitioner
asserts applies. See United States v. Lopez-Solis, 447 F.3d 1201, 1210 (9th
Cir. 2006); United States v. Kelly, 422 F.3d 889, 895-96 (9th Cir. 2005);
Parrilla v. Gonzales, 414 F.3d 1038, 1043-44 (9th Cir. 2005). Ultimately,
however, reliance on those documents is unnecessary for purposes of
determining whether Petitioner’s offense qualifies as a violation of a “pro-
tection order” under 8 U.S.C. § 1227(a)(2)(E)(ii), the pertinent issue in
this proceeding.
2
Under FAPA, violation of a restraining order gives rise to contempt
proceedings. As explained in Bachman v. Bachman, 16 P.3d 1185, 1188
(Or. Ct.App. 2000) (quoting Hathaway v. Hart, 708 P.2d 1137, 1139 (Or.
1985)), “the essence of [FAPA] is to prevent acts of family violence
through restraining orders and, if the court orders are disobeyed, to pro-
vide legal sanctions for the violations of the orders because ordinary crim-
inal actions at law were found to be inadequate to achieve this desired
legislative result.”
9094 SZALAI v. HOLDER
lated the order “by being within 100 yards of [Petitioner’s ex-
wife] not allowed by rest. order.” The court sentenced Peti-
tioner to serve 60 days in jail (with credit for time served and
a suspension of the remainder), placed him on formal proba-
tion for a period of two years, ordered him to undergo treat-
ment and counseling for anger, mental health and domestic
violence, and required that any further exchange of children
would take place at the police station in Beaverton, Oregon.
Over a year later, Department of Homeland Security
authorities arrested Petitioner and served him with a Notice to
Appear. The government charged Petitioner with violating the
portion of a domestic restraining order that involved protec-
tion against credible threats of violence, repeated harassment,
or bodily injury to his ex-wife, making him subject to removal
under 8 U.S.C. § 1227(a)(2)(E)(ii).
The IJ assigned to the case terminated removal proceedings
with prejudice upon determining that Petitioner’s violation of
the 100 yard stay away portion of the restraining order did not
bring Petitioner within the meaning of section
1227(a)(2)(E)(ii). On appeal, the BIA disagreed, vacating the
IJ’s decision and remanding the matter. Petitioner asserts that,
in reaching its decision, the BIA improperly relied upon a
police report that the IJ had entered into evidence below. Peti-
tioner refers to the following language from the BIA’s ruling:
In the instant case, the record includes a copy of the
police report[3] respecting [Petitioner’s] arrest. It
shows that during a drop off of his child, [Petitioner]
did not remain in his car, did not remain at curbside,
but got out of his car and walked up halfway up [sic]
his ex-wife’s driveway . . . .
3
Although the BIA referenced a “police report,” it in fact cited to an
Affidavit in Support of Probable Cause Arrest which was filed as part of
a certified copy of Petitioner’s conviction record.
SZALAI v. HOLDER 9095
The BIA then concluded that Petitioner’s conduct fell within
the terms of section 1227(a)(2)(E)(ii).
Upon remand, Petitioner applied for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a), and for — in the
alternative — asylum, withholding of removal, and/or relief
under the Convention Against Torture. The IJ denied all of
Petitioner’s requested forms of relief and ordered him
removed to Hungary. Petitioner appealed the IJ’s order and
the BIA dismissed the appeal.4
II. DISCUSSION
A. Standard of Review
The Ninth Circuit reviews de novo whether a conviction
constitutes a removable offense under the Immigration and
Nationality Act. See Alanis-Alvarado v. Holder, 558 F.3d
833, 836 (9th Cir. 2009); Coronado-Durazo v. INS, 123 F.3d
1322, 1324 (9th Cir. 1997). The BIA’s determination of
purely legal questions regarding the Immigration and Nation-
ality Act — such as its application of a particular statutory
section — is likewise reviewed de novo. See Lafarga v. INS,
170 F.3d 1213, 1215 (9th Cir. 1999).5
4
In his petition to this court, Szalai does not challenge the denial of his
request for asylum, withholding of removal, and/or relief under the Con-
vention Against Torture.
5
The BIA’s interpretation and application of the immigration laws are
nevertheless entitled to deference in certain instances under Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). See Marmolejo-Campos v. Holder, 558 F.3d 903, 908-11 (9th Cir.
2009). The government argues that the BIA’s interpretation of section
1227(a)(2)(E)(ii) is entitled to such deference here, whereas Petitioner
points out that the BIA’s interpretation is due no deference when its con-
struction is contrary to the statute’s “plain and sensible meaning.” See
Prieto-Romero v. Clark, 534 F.3d 1053, 1061 (9th Cir. 2008) (“We will
not defer to the BIA when its construction of a statute defies its ‘plain and
sensible meaning.’ Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir.
9096 SZALAI v. HOLDER
B. Analysis
1. Categorical Analysis of the Oregon FAPA Restrain-
ing Order
[1] Petitioner is charged with removability under 8 U.S.C.
§ 1227(a)(2)(E)(ii) which provides, in pertinent part:
(a) Classes of deportable aliens
Any alien . . . in and admitted to the United States
shall, upon the order of the Attorney General, be
removed if the alien is within one or more of the fol-
lowing classes of deportable aliens:
....
(2) Criminal offenses
....
(E) Crimes of domestic violence, stalk-
ing, or violation of protection order,
crimes against children and[6]
2003)”); Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th Cir.
2005) (applying Chevron deference principles to BIA’s construction of
section 1227(a)(1)(E)(I)); Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th
Cir. 2004) (rejecting call for Chevron deference in interpreting state and
federal criminal laws in context of removal proceeding under section
1227(a)(2)(E)(i)). We need not reach the Chevron question, however,
because Petitioner’s argument regarding his desired construction of sec-
tion 1227(a)(2)(E)(ii) is foreclosed by a recent controlling Ninth Circuit
case (i.e. Alanis-Alvarado), as discussed further below. That controlling
case, which addressed arguments similar to those raised herein, made no
mention of Chevron or the deferential review required by that case and
doctrine.
6
The United States Code Annotated provides, in a footnote, that this
language was “[s]o in original.” See 8 U.S.C.A. § 1227 at pages 326 and
331 (Thomson/West 2005).
SZALAI v. HOLDER 9097
....
(ii) Violators of protection orders
Any alien who at any time after
admission is enjoined under a protec-
tion order issued by a court and whom
the court determines has engaged in
conduct that violates the portion of a
protection order that involves protec-
tion against credible threats of vio-
lence, 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 proceed-
ing.
8 U.S.C.A. § 1227(a)(2)(E)(ii) (2005 & Supp. 2007) (empha-
sis added). The question here is whether Petitioner’s violation
of the restraining order by being within 100 yards of his ex-
wife’s residence (without falling within the conditions set in
connection with the provision for delivery or pick-up of chil-
dren) brings him “categorically” within the scope of section
1227(a)(2)(E)(ii).
Petitioner admits that all provisions of the FAPA restrain-
ing order at issue in this case generally involve protection of
persons who obtain the order, but insists that not all provi-
9098 SZALAI v. HOLDER
sions of a FAPA restraining order “involve[ ] protection
against credible threats of violence, repeated harassment, or
bodily injury.” Petitioner argues that to read section
1227(a)(2)(E)(ii) as the BIA has in his case would be to ren-
der superfluous the words “the portion of.” In essence, he
contends that the BIA’s interpretation means the violation of
any provision in a protective or restraining order would render
someone in his position removable. That, however, is not the
argument which the government espouses or the position that
the BIA took.
The government concedes that there are certain provisions
which might be encompassed within a FAPA restraining order
which, at least arguably, would not fall within the terms of
section 1227(a)(2)(E)(ii); for example, provisions requiring
attendance at and payment for a counseling program or
requiring the payment of costs for supervision during parent-
ing time. See OR. REV. STAT. § 107.718(6)(c), (e). In addition,
although the case dealt with California law, in Alanis-
Alvarado we specifically cited Oregon Law as allowing for a
provision requiring support for the spouse or children as part
of a protective order. See 558 F.3d at 840 (citing OR. REV.
STAT. § 107.718(1)(h), which permits a restraining order to
include an award of monetary assistance). We then noted that
“[a] conviction for violating a protection order issued under
such a statute would require additional proof as to ‘what por-
tion’ of the protection order was violated.” Id. Had such a
provision been involved here and had the government charged
Petitioner with being removable for having violated it, his
argument might have some weight. But as the record clearly
indicates, Petitioner was not charged with having violated any
support provision or with removability in connection with any
such provision.
Citing Gerlack v. Roberts, 952 P.2d 84, 86-87 (Or. Ct. App.
1998), Petitioner also argues that, under Oregon law, a court
considering a charge that an individual violated a restraining
order must make a special finding as to each provision or con-
SZALAI v. HOLDER 9099
dition of the order violated. Here, the Oregon court only
found that Petitioner violated the provision requiring him to
stay more than 100 yards away from his ex-wife, not the other
portions of the restraining order which are, on their face, more
directly tied to “credible threats of violence, repeated harass-
ment, or bodily injury.” See Alanis-Alvarado, 558 F.3d at 839
(“[S]ome acts, such as telephoning one’s domestic partner or
coming within a specified distance of him or her, do not typi-
cally constitute violence, threats, or harassment.”).
However, even if Petitioner’s reading of Gerlack is accu-
rate (and it is not clear that it is), that the Oregon court only
found Petitioner in violation of the 100 yard stay away prohi-
bition is not to say that such a provision does not “involve[ ]
protection against credible threats of violence, repeated
harassment, or bodily injury.” Indeed, in Alanis-Alvarado, we
discussed the distinction a statute such as section
1227(a)(2)(E)(ii) inherently draws between assessing what an
accused individual has actually done in violating a protective
order versus the purpose that a protective order serves:
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 cat-
egorically. But the INA provision requires
something different: that the state court conclude
that Petitioner violated “the portion 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 protec-
tion against” violence, threats, or harassment, even if
it is possible that Petitioner’s violative conduct did
not independently constitute violence, threats, or
harassment.
9100 SZALAI v. HOLDER
558 F.3d at 839-40.
[2] Ultimately, Petitioner’s arguments are foreclosed by the
reasoning in Alanis-Alvarado. At issue in that case was sec-
tion 6320 of the California Family Code which provided:
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.
[Emphasis added.7]
We were unable to determine from the record in that case
(which, under the modified categorical approach that we
adopted, consisted of the petitioner’s two guilty pleas) which
portion of a section 6320 protective order the petitioner had
violated.8 See 558 F.3d at 839. Nevertheless, we concluded
there that “every portion” of a protective order issued under
that statute “involves protection against credible threats of
violence, repeated harassment, or bodily injury.” Id. at 839-40
(emphasis in original). Because section 6320 of the California
Family Code permitted protective orders which merely pre-
vent a party from “coming within a specified distance of”
another party and because we concluded that any protective
order issued under section 6320 met the definition of section
7
As we noted in Alanis-Alvarado, section 6320 was amended in 2007
— after the protective orders in that case were issued and after the peti-
tioner had been convicted. See 558 F.3d at 838 n.3.
8
In this case, the Judgment on Contempt Hearing specified that Szalai
had violated the restraining order’s 100 yard stay away provision.
SZALAI v. HOLDER 9101
1227(a)(2)(E)(ii), Petitioner’s arguments here are untenable.
Id.
At oral argument,9 Petitioner emphasized that in Alanis-
Alvarado we concluded only that all portions of a section
6320 protective order served the purpose of section
1227(a)(2)(E)(ii) because the issuance of an order under sec-
tion 6320 required “a showing of ‘reasonable proof of a past
act or acts of abuse.’ ” Id. at 838, quoting Cal. Fam. Code
§ 6300. However, a FAPA restraining order imposes a similar
threshold requirement and more. See In re Marriage of
Ringler, 188 P.3d 461, 466 (Or. Ct. App. 2008) (“Under ORS
107.710, in order to obtain a FAPA restraining order, a peti-
tioner must prove, by a preponderance of evidence, that he or
she has been the victim of ‘abuse,’ as that term is defined in
ORS 107.705.”10); OR. REV. STAT. § 107.718(1) (indicating
that the court may issue a FAPA restraining order upon a
showing that the individual “has been the victim of abuse
committed by the respondent within 180 days preceding the
filing of the petition,” and “that there is an imminent danger
of further abuse to the [individual] and that the respondent
represents a credible threat to the physical safety of the [indi-
vidual] or the [individual’s] child . . . .”). Moreover, in issuing
the FAPA order here, the Oregon court in fact found that Peti-
tioner had abused his ex-wife within the meaning of OR. REV.
STAT. § 107.705, and that he “represents a credible threat to
9
The opinion in Alanis-Alvarado was originally filed on September 3,
2008, see 541 F.3d 966, after briefing was completed in this case, and
amended on March 3, 2009, see 558 F.3d 833. Although only the original
opinion was available at the time of oral argument, none of the subsequent
amendments affects our analysis or Alanis-Alvarado‡’s application to this
case.
10
“Abuse” under FAPA means “[a]ttempting to cause or intentionally,
knowingly or recklessly causing bodily injury,” “[i]ntentionally, know-
ingly or recklessly placing another in fear of imminent bodily injury,” or
“[c]ausing another to engage in involuntary sexual relations by force or
threat of force.” OR. REV. STAT. § 107.705(1); see also Boyd v. Essin, 12
P.3d 1003, 1004 (Or. Ct. App. 2000).
9102 SZALAI v. HOLDER
the physical safety of [his ex-wife] or [her] child and there is
an imminent danger of further abuse . . . .” Petitioner’s
attempt to distinguish Alanis-Alvarado is therefore unavail-
ing.
[3] We are bound by Alanis-Alvarado. However, as in that
case, based on the government’s concession that the full range
of conduct proscribable under a FAPA restraining order is
broader than section 1227(a)(2)(E)(ii), we conclude that “Peti-
tioner’s conviction does not suffice under the categorical
approach.” See 558 F.3d at 837 (emphasis in original). We
therefore proceed to an examination under the modified cate-
gorical approach.
2. The Modified Categorical Approach
[4] The parties dispute whether the BIA relied upon
improper material in reaching its decision and even whether
we have jurisdiction to resolve that issue. In light of Alanis-
Alvarado, however, we need not reach those disputes. Even
assuming that the BIA erred by considering the police report,11
Petitioner does not deny that he violated the restraining
order’s 100 yard stay away provision which we concluded in
Alanis-Alvarado “involves protection against credible threats
of violence, repeated harassment, or bodily injury.” Given the
import of Alanis-Alvarado, all information necessary to the
section 1227(a)(2)(E)(ii) analysis here was contained in the
FAPA restraining order and the Judgment on Contempt Hear-
ing, documents which Petitioner admits may be considered
under the modified categorical approach. See Kawashima v.
Mukasey, 530 F.3d 1111, 1114 n.4 (9th Cir. 2008), abrogated
in part, Nijhawan v. Holder, ___ U.S. ___, 129 S. Ct. 2294
(2009). Thus any error in the BIA’s consideration of the
police report was harmless.
11
We note that, in Alanis-Alvarado, we followed the modified categori-
cal approach, albeit without obviously rejecting an argument that we
should not do so. See 558 F.3d at 836-37.
SZALAI v. HOLDER 9103
The petition for review is DENIED.
WU, District Judge, concurring:
I concur in the result reached in the majority opinion and
in most of its analysis based upon the decision in Alanis-
Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009), except as
noted herein.
Alanis-Alvarado holds, inter alia: 1) that the issue of
whether a petitioner has violated a “protection order” under 8
U.S.C. § 1227(a)(2)(E)(ii) is to be determined under the “cate-
gorical approach” and the “modified categorical approach”
first announced in Taylor v. United States, 495 U.S. 575
(1990), and 2) that the petitioner’s pleas to violating court
orders issued pursuant to California Family Code § 6320 fell
within section 1227(a)(2)(E)(ii) because 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] every portion of a
protective order issued under Section 6320 ‘involves protec-
tion against credible threats of violence . . . or bodily injury.’
8 U.S.C. § 1227(a)(2)(E)(ii).” 558 F.3d at 836, 838-39
(emphasis in original). I believe that the latter holding in
Alanis-Alvarado is binding on this case and consequently
Petitioner Szalai’s petition for review must be denied. How-
ever, I also conclude that Alanis-Alvarado’s initial holding (as
to the applicability of Taylor‡’s categorical and modified cat-
egorical approaches to section 1227(a)(2)(E)(ii)) was simply
assumed without analysis and is incorrect.
Admittedly, it has been noted that “the lower courts uni-
formly have applied the approach . . . in Taylor v. United
States” to determine whether a conviction for violating a state
criminal law falls within one of the removable offenses listed
in 8 U.S.C. § 1227(a). Gonzales v. Duenas-Alvarez, 549 U.S.
9104 SZALAI v. HOLDER
183, 185-86 (2007). However, the precise problem raised in
the Taylor scenario and addressed by the Court’s categorical
and modified categorical approaches (while present where the
application of a federal statute is predicated on the conviction
of a crime which is undefined in the federal statute and where
the conviction occurs in a state court) is not present in the
context of section 1227(a)(2)(E)(ii), which is premised on a
violation of a “protection order” which is defined in the fed-
eral statute itself.
In Taylor, the issue concerned the meaning of the word
“burglary” as it was used in 18 U.S.C. § 924(e), which pro-
vided for a sentence enhancement for persons with three prior
convictions for “a violent felony or a serious drug offense.”
See 495 U.S. at 578-80. A “violent felony” was defined to
include “burglary” which was not itself defined in the then-
current version of the statute. Id. at 581-82. After reviewing
the relevant legislative history of section 924(e), the Court
concluded that Congress intended “burglary” to have its “ge-
neric” meaning (i.e., having the basic elements of “an unlaw-
ful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime”). Id. at 598. It fur-
ther held that the burglary predicate would not depend on the
definition of “burglary” adopted by the State of conviction,
but rather it would have to comply with the “categorical
approach,” which required the inclusion of the elements of
burglary as delineated in the “generic” definition. Id. at 588-
90. Thus, under Taylor, a sentencing court in considering
whether a state conviction constituted a burglary predicate
was initially to employ what is now referred to as the “cate-
gorical approach” and determine if the state statute defining
burglary was no broader than the generic definition of the crime.1
1
The Court explained that: “If the state statute is narrower than the
generic view, e.g., in cases of burglary convictions in common-law States
or convictions of first-degree or aggravated burglary, there is no problem,
because the conviction necessarily implies that the defendant has been
found guilty of all the elements of generic burglary.” Id. at 599.
 SZALAI v. HOLDER 9105
Id. at 599. If the state statute was no broader, then the analysis
was complete. Moreover, that examination was limited “only
to the fact of conviction and the statutory definition of the
prior offense.” Id. at 602. If, however, the state statute defined
burglary more broadly (for example by not requiring that the
initial entry be unlawful or unprivileged, or by including non-
buildings such as cars or boats within its scope), the Court
stated:
This categorical approach, however, may permit the
sentencing court to go beyond the mere fact of con-
viction in a narrow range of cases where a jury was
actually required to find all the elements of generic
burglary. For example, in a State whose burglary
statutes include entry of an automobile as well as a
building, if the indictment or information and jury
instructions show that the defendant was charged
only with a burglary of a building, and that the jury
necessarily had to find an entry of a building to con-
vict, then the Government should be allowed to use
the conviction for enhancement.
Id.
In Shepard v. United States, 544 U.S. 13 (2005), the Court
allowed, in limited situations, a further examination of evi-
dentiary materials beyond charges and jury instructions. As
stated therein:
The Court did not, however, purport to limit ade-
quate judicial record evidence strictly to charges and
instructions, [Taylor, 495 U.S.] at 602, (discussing
the use of these documents as an “example”), since
a conviction might follow trial to a judge alone or a
plea of guilty. In cases tried without a jury, the clos-
est analogs to jury instructions would be a bench-
trial judge’s formal rulings of law and findings of
fact, and in pleaded cases they would be the state-
9106 SZALAI v. HOLDER
ment of factual basis for the charge, Fed. Rule Crim.
Proc. 11(a)(3), shown by a transcript of plea collo-
quy or by written plea agreement presented to the
court, or by a record of comparable findings of fact
adopted by the defendant upon entering the plea.
With such material in a pleaded case, a later court
could generally tell whether the plea had “necessari-
ly” rested on the fact identifying the burglary as
generic, Taylor, supra, at 602, just as the details of
instructions could support that conclusion in the jury
case, or the details of a generically limited charging
document would do in any sort of case.
544 U.S. at 20-21 (footnote omitted). However, the Court
refused to permit further evidentiary explorations to be con-
ducted beyond “conclusive records made or used in adjudicat-
ing guilt,” such as examining police reports and other
“documents submitted to lower courts even prior to charges.”
Id. at 21-23.
In light of the above, it is unclear why the “categorical” or
“modified categorical” approaches would be applicable to the
8 U.S.C. § 1227(a)(2)(E)(ii) situation. Unlike “burglary”
predicate situations where there are “generic” and apparently
“non-generic” statutory definitions for the crime, section
1227(a)(2)(E)(ii) deals with “protection orders” where there is
no such multitude of meanings. More importantly, the federal
statute itself defines the term. Thus, there is no conflict
between some “crime of conviction” and a “generic” crime.
Hence, the very problem raised in Taylor (for which the “cat-
egorical” and “modified categorical” approaches were crafted
in response) is absent here.2 The fact that section
2
As noted in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008),
abrogated in part, Nijhawan v. Holder, ___ U.S. ___, 129 S. Ct. 2294
(2009): “The modified categorical approach . . . only applies when the par-
ticular elements in the crime of conviction are broader than the generic
crime.” Id. at 1115 (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063,
SZALAI v. HOLDER 9107
1227(a)(2)(E)(ii) is limited to violations of “the portion of a
protection order that involves protection against credible
threats of violence, repeated harassment, or bodily injury to
the person . . . for whom the protection order was issued”
does not change the analysis.
There is a further basis for distinguishing the present situa-
tion from cases which require the application of the categori-
cal/modified categorical approaches as developed in the
Taylor/Shepard line of decisions, i.e., by examining what is
required for the predicate element in the underlying statutes.
The Court in Taylor emphasized that 18 U.S.C. § 924(e)(1)
requires that the defendant have prior convictions, and not
merely have committed three previous crimes. 495 U.S. at
600-01. Further, the previous violent felony convictions must
have involved the use or threat of force, a designated crime
(such as burglary) or conduct that presents a serious potential
risk of harm as an element, rather than simply have involved
the use or threat force, the designated crime or serious risk of
harm in the specific case. Id. at 600. It follows that a court,
when evaluating convictions and elements, must constrain
itself only to the fact of a conviction and its underlying ele-
ments (with a few exceptions). Id. at 602. Section
1227(a)(2)(E)(ii), on the other hand, does not require convic-
tions, but only that the defendant “engage[ ] in conduct” that
violates a protection order. 8 U.S.C. § 1227(a)(2)(E)(ii). In
lieu of a conviction for a crime with such an element, this
arguably should permit a court to venture outside the evidenti-
ary realm of the categorical and modified categorical
approaches. There would be no need to prohibit, say, examin-
ing police reports to determine if a defendant engaged in a
1073 (9th Cir. 2007)). In the context of 8 U.S.C. § 1227(a)(2)(E)(ii), even
if one were to assume that the “crime of conviction” is the violation of the
restraining/protective order, what exactly would the “generic” crime be?
If there is no generic crime, why apply the modified categorical approach
at all?
9108 SZALAI v. HOLDER
certain type of conduct so long as due process concerns are
not violated.
The inapplicability of the categorical/modified categorical
approaches to 8 U.S.C. § 1227(a)(2)(E)(ii) is strongly indi-
cated by the Supreme Court’s recent decision in Nijhawan v.
Holder, ___ U.S. ___, 129 S. Ct. 2294, 2009 U.S. LEXIS 4320
(June 15, 2009). In that case, the issue was whether the alien
petitioner had been convicted of an “aggravated felony” under
8 U.S.C. § 1227(a)(2)(A)(iii). “Aggravated felony” is defined
in 8 U.S.C. § 1101(a)(43)(M)(i) to include offenses involving
“fraud or deceit in which the loss to the victim or victims
exceeds $10,000. . . .” The petitioner had been convicted of
mail fraud and related crimes but the jury made no findings
as to the amount of the loss. Nijhawan, 129 S. Ct. at 2298.
However, at sentencing, the petitioner stipulated that the loss
exceeded $100 million. The Government subsequently sought
to remove him from the United States on the basis of that con-
viction. The IJ held that he had been convicted of an “aggra-
vated felony” under sections 1227(a)(2)(A)(iii) and
§ 1101(a)(43)(M)(i), and the Third Circuit agreed. Id.
On certiorari, the issue was whether — as to certain lan-
guage in section 1101(a)(43)(M)(i), i.e. “an offense that . . .
involves fraud or deceit in which the loss to the victim or vic-
tims exceeds $10,000” — the italized phrase refers to a neces-
sary/generic element of the fraud or deceit “offense” or
whether it refers to the particular circumstances in which the
offender committed the more broadly defined fraud or deceit
crime on the particular occasion. Id. If the former, then argu-
ably the “categorical” approach delineated in Taylor would be
applicable; if the latter, then a broader “circumstance-
specific” analysis would be made. Id. at 2298-99. As stated in
Nijhawan: “If the first, we must look to the statute defining
the offense to determine whether it has an appropriate mone-
tary threshold; if the second, we must look to the facts and
circumstances underlying an offender’s conviction.” Id. The
Court noted the split in the circuit courts which had adopted
SZALAI v. HOLDER 9109
the categorical/definitional approach (such as the Ninth Cir-
cuit in Kawashima, 530 F.3d at 1117), and those which
employed a “fact-based approach” (such as the First and Fifth
Circuits). Id. at 2298.
Eventually, the Court held that: 1) “the italicized language
does not refer to an element of the fraud or deceit crime.
Rather it refers to the particular circumstances in which an
offender committed a (more broadly defined) fraud or deceit
crime on a particular occasion” (id.); and 2) “we conclude that
the ‘fraud and deceit’ provision before us calls for a
‘circumstance-specific,’ not a ‘categorical,’ interpretation”
(id. at 2300). Of particular note is that, in Section III of the
opinion, the Court specifically rejected the petitioner’s request
to borrow from Taylor a “modified categorical approach” to
the analysis. Id. at 2302-03. In doing so, the Court found that
the “evidentiary limitations” urged by the petitioner and appli-
cable to the “modified categorical approach” were not
required. Id. at 2303. As stated by the Court: “we have found
nothing in prior law that so limits the immigration court. Tay-
lor, James [v. United States, 550 U.S. 192 (2007)] and Shep-
ard, the cases that developed the evidentiary list to which
petitioner points, developed that list for a very different pur-
pose, namely that of determining which statutory phrase (con-
tained within a statutory provision that covers several
different generic crimes) covered a prior conviction.” Id.
In conclusion, the central issues in determining whether
Szalai falls within 8 U.S.C. § 1227(a)(2)(E)(ii) are: 1) does
the Oregon FAPA restraining order qualify as a “protection
order” under the definition delineated in the federal statute,
and 2) did Szalai violate that portion of it which “involves
protection against credible threats of violence, repeated
harassment, or bodily injury to the person or persons for
whom the protection order was issued . . . .” Those matters
can be resolved quite simply and without the extraneous bur-
dens and restrictions of conducting a purported categorical
9110 SZALAI v. HOLDER
and/or modified categorical analysis.3 See generally, Cham-
bers v. United States, 555 U.S. ___, 129 S. Ct. 687, 693-95
(2009) (Alito, J., concurring) (observing that Taylor’s “ ‘cate-
gorical approach’ to predicate offenses has created numerous
splits among the lower federal courts, the resolution of which
could occupy this Court for years. [Footnote omitted.].”
3
One might question whether the majority opinion in Alanis-Alvarado
itself actually and/or correctly applied the categorical and modified cate-
gorical approaches delineated in Taylor and Shepard. Indeed, the dissent
in Alanis-Alvarado accuses the majority of having incorrectly applied the
modified categorical approach. 558 F.3d at 840-41 (Rawlinson, J., dissent-
ing).
In Alanis-Alvarado, it was initially held that “a conviction under Cali-
fornia Penal Code section 273.6, for violating a protective order issued
pursuant to California Family Code section 6320, categorically qualifies
as violation of a ‘protection order’ under 8 U.S.C. § 1227(a)(2)(E)(ii)
. . . .” 558 F.3d at 835. However, later it was observed that “[e]xamining
the ‘full range of conduct’ proscribed by section 273.6, Petitioner’s con-
viction does not suffice under the categorical approach.” Id. at 837
(emphasis in original). The court then turned to the modified categorical
approach in order to examine the petitioner’s “records of conviction.” Id.
In doing so, it cryptically noted that:
Although this inquiry rides under the banner of the “modified cat-
egorical approach,” the records of conviction here tell us only
which combination of statutes authorized the protection 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.
Id. It is difficult to comprehend how a modified categorical inquiry can be
“identical” to a categorical inquiry when going beyond the mere fact of
conviction and the statutory definition of the operative crime is by defini-
tion the distinction between the categorical approach and the modified cat-
egorical approach. See generally Gonzales, 549 U.S. at 187; Kawashima,
530 F.3d at 1114.