Tokatly v. Ashcroft

Decision Date10 June 2004
Docket NumberNo. 03-70473.,03-70473.
Citation371 F.3d 613
PartiesNaji Antoine TOKATLY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Janice K. Redfern, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for respondent.

Raquel E. Hecht, Eugene, OR, for petitioner.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: REINHARDT, SILVERMAN, and CLIFTON, Circuit Judges.

REINHARDT, Circuit Judge:

Naji Tokatly, native of Syria and legal permanent resident, appeals the BIA's streamlined decision finding that he was removable for having been convicted of a "crime of domestic violence," INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E). We hold that the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) categorical and modified categorical approach is applicable to section 237(a)(2)(E)(i), and that neither the Board of Immigration Appeals (BIA or Board) nor this court may look beyond the record of conviction to determine whether the crime of which the alien was convicted was a "crime of domestic violence" within the meaning of the statute. Accordingly, we conclude that the Immigration Judge (IJ) erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner's own admissions regarding the nature of his relationship with the victim, and in finding him removable under section 237(a)(2)(E)(i).1

A. Factual and Procedural Background

Naji Tokatly was first admitted to the United States in 1989 as a student, and in 1993 he adjusted his status to legal permanent resident. In 1997 he was convicted in Oregon state court on charges of Burglary in the First Degree and Attempted Kidnaping in the First Degree, Or.Rev.Stat §§ 164.225, 163.235, pursuant to a guilty plea.2 By the terms of the plea agreement, Tokatly was placed on probation and ordered to pay $29,800 in compensatory damages and other monetary fines but was not sentenced to serve any time in prison. In 1998, the government charged him with removability under section 237(a)(2)(E)(i) for having been convicted of a "crime of domestic violence."3

At a hearing before the IJ in 1999, Tokatly contested removability under the "crime of domestic violence" provision on the basis that, while the evidence in the record of conviction established that his crime was a crime of violence, it did not establish that the violence was "domestic" within the meaning of the statute. In fact, the record of conviction — the government submitted the judgment, the indictment, and the guilty plea — did not serve to establish that the crime was "domestic."4 For this reason, at the hearing, the government called as a witness the crime victim to testify as to the nature of her prior relationship with Tokatly. Tokatly, through counsel, objected to the use of this testimonial evidence to establish what the record of conviction did not — namely, that his 1997 violation was a crime of "domestic" violence. The IJ overruled the objection, however, explaining: "the Immigration Judge does have to examine the facts behind the conviction."

Thereafter, the IJ determined — solely on the basis of the victim's testimony at the hearing — that Tokatly had "cohabited" with the victim in a "domestic" relationship, and that a crime of domestic violence had therefore been committed. The IJ then found that Tokatly was removable under section 237(a)(2)(E)(i).

Tokatly appealed to the BIA, arguing, inter alia, that the IJ erred in considering testimonial evidence outside the record of conviction to establish removability under section 237(a)(2)(E)(i). While the appeal was pending, however, Tokatly's approved I-130 visa for the unmarried son of a U.S. citizen became available. Accordingly, he requested that the Board remand his case so that he could apply for alternative relief in the form of adjustment of status and cancellation of removal under section 212(h).

The BIA granted the unopposed motion, and in 2001, the IJ held a second hearing to consider Tokatly's petition for adjustment of status and cancellation of removal. In the course of this hearing, at which the issue was whether Tokatly was entitled, in the IJ's discretion, to relief from removal on extreme hardship grounds, Tokatly, as well as the victim, testified as to the nature of their prior romantic relationship. Following their testimony, the IJ questioned Tokatly's counsel about the status of Tokatly's claim that the government had failed to establish that he had been convicted of a "crime of domestic violence." When counsel stated that the issue was still on appeal, the IJ disagreed, and by persistent questioning elicited from counsel a statement that contradicted her initial answer: This time she replied that she was not still challenging the finding that the prior offense involved a crime of domestic violence under section 237(a)(2)(E)(i).5 The IJ then returned to the issue that was the subject of the hearing, and, exercising his discretion, ruled that Tokatly did not merit relief in the form of adjustment of status or cancellation of removal. In the introductory section of his ruling, the IJ described the procedural history of the case, noting in one brief sentence counsel's purported "concession" regarding Tokatly's relationship to the victim and stating incorrectly that counsel had conceded removability under the "crime of domestic violence" provision.

Tokatly again appealed to the BIA, renewing his challenge to removability under section 237(a)(2)(E)(i). He reasserted his contention that the IJ improperly relied on evidence outside the record of conviction to establish that he had been convicted of a "crime of domestic violence." In response, the government did not contend that counsel's statement at the hearing constituted a waiver of Tokatly's claim, but rather addressed the issue on the merits, incorporating by reference the argument contained in its brief filed before the BIA on the first appeal. The Board simply affirmed the IJ's decision in a streamlined disposition.

In his petition before this court, Tokatly continues to contest removability under section 237(a)(2)(E)(i) on the basis that the IJ erred in relying on evidence outside the record of conviction. Indeed, he seeks review only of the first decision of the IJ, which dealt exclusively with the question whether he may be lawfully removed under that provision. He does not seek to overturn the IJ's second ruling, upon remand from the Board, denying ancillary relief from removal in the form of adjustment of status and cancellation of removal under section 212(h).

Because the Board streamlined the case, we review the IJ's opinion as the final agency decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). Here, although there are two IJ opinions in the administrative record, it is only the first ruling that Tokatly asks us to review. In this respect, it is significant that he sought a remand of the first BIA appeal in order to seek alternative forms of relief, and that, in so doing, he did not dismiss the initial appeal. Accordingly, we review the IJ's first opinion, as Tokatly requests, and consider the question whether, given the record of conviction that was before the IJ, Tokatly's burglary and attempted kidnaping conviction constitutes a lawful basis for removal under the INA's "crime of domestic violence" provision.

B. Waiver

As an initial matter, the government, citing Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir.2001), contends that we lack jurisdiction to review Tokatly's claim respecting the IJ's erroneous reliance on testimonial evidence outside of the record of conviction because he waived this issue through counsel at a hearing before the IJ. The government's jurisdictional argument is incorrect: Rodas-Mendoza involved the statutory requirement of exhaustion, see INA § 242(d), and there we summarily declined to address one of petitioner's claims for the sole reason that he had failed to raise the issue before the BIA. Here, by contrast, Tokatly properly exhausted his claim by presenting it to the Board in his appellate briefs on both appeals. Accordingly, the BIA was "given the opportunity to review and adjudicate" the issue, and Tokatly "does not raise any arguments for the first time on appeal" to this court. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003). Thus, section 242(d)'s jurisdictional bar to our review does not apply.

Moreover, it is well-established that "the government can `waive waiver' implicitly by failing to assert it." United States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir.2002) (citing other decisions to this effect); see also United States v. Lewis, 798 F.2d 1250 (9th Cir.1986); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991). Here, following counsel's elicited "concession" at the adjustment of status hearing, and Tokatly's subsequent reaffirmation of his claim that the government failed to lawfully establish that he was "convicted of a crime of domestic violence" in his brief to the Board on his second appeal, the government, in its reply brief, did not argue waiver but instead elected to address the issue on the merits, incorporating by reference the argument contained in its brief to the Board on the first appeal. Under these circumstances, we conclude that the government has "waived" any waiver argument it may have had, and that we may proceed to address the merits of Tokatly's claim.

Finally, we emphasize once more that the subject of the second hearing was Tokatly's alternative claim for relief — not the question whether the conviction at issue constituted a proper basis for removal under section 237(a)(2)(E)(i). The latter claim had already been adjudicated at the first hearing. Tokatly's motion for remand of the appeal on that issue was solely for the...

To continue reading

Request your trial
103 cases
  • Cuevas-Gaspar v. Gonzales
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Diciembre 2005
    ...approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Tokatly v. Ashcroft, 371 F.3d 613, 622 (9th Cir.2004); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir.1994) (applying modified categorical approach to determine whether petitioner......
  • Arguelles-Olivares v. Mukasey
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 22 Abril 2008
    ...actual conduct fit the definition of a predicate offense. Taylor, 495 U.S. at 601, 110 S.Ct. 2143; see also Tokatly v. Ashcroft, 371 F.3d 613, 621 (9th Cir.2004) (noting "fundamental principle" that "in determining whether a prior conviction constitutes a predicate offense, we must avoid `t......
  • Tijani v. Willis
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 Diciembre 2005
    ...that Tijani caused this amount of loss, as this circuit's case law requires. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Tokatly v. Ashcroft, 371 F.3d at 620. Further, there appears to be no California law requiring that a jury determine the amount of restitution. Cf. Cal.Penal Code § 1202......
  • Jean-Louis v. Attorney General of U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 6 Octubre 2009
    ...Courts of Appeals buttress this conclusion — Gertsenshteyn v. U.S. Dept. of Justice, 544 F.3d 137 (2d Cir.2008) and Tokatly v. Ashcroft, 371 F.3d 613, 622 (9th Cir.2004). Although these opinions address "convicted" in the context of different removal provisions, Congress has prescribed a si......
  • Request a trial to view additional results
1 books & journal articles
  • Immigration Law's Missing Presumption
    • United States
    • Georgetown Law Journal No. 111-5, May 2023
    • 1 Mayo 2023
    ...The Ninth Circuit has applied the categorical approach to the domestic relationship requirement. See Tokatly v. Ashcroft, 371 F.3d 613, 622–23 (9th Cir. 2004). The Fourth and Fifth Circuits, on the other hand, have applied the circumstance-specif‌ic approach, reasoning that the domestic rel......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT