Alanis-Alvarado v. Holder

• Decision Date: 03 September 2008
• Docket Number: No. 06-72369.,06-72369.
• Citation: 558 F.3d 833
• Parties: Carlos ALANIS-ALVARADO, Petitioner, v. Eric H. HOLDER, JR.,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

558 F.3d 833

Carlos ALANIS-ALVARADO, Petitioner, v. Eric H. HOLDER, JR.,^* Attorney General, Respondent.

No. 06-72369.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2008.

Filed September 3, 2008.

Amended March 3, 2009.

Manuel F. Rios, III, and Lesley Irizarry-Hougan, Rios Cantor, P.S., Seattle, WA, for the petitioner.

Jesse Bless, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-611-947.

Before: ARTHUR L. ALARCÓN, SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITIONS FOR REHEARING AND REHEARING EN BANC AND AMENDED OPINION

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 petition for rehearing en banc, and Judge Alarcon has so recommended. 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, categorically qualifies as violation of a "protection order" under 8 U.S.C. § 1227(a)(2)(E)(ii) of the Immigration and Nationality 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 resident 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 DISOBEYING 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 willfully, 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 different provisions of the INA: under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving moral turpitude; under 8 U.S.C § 1227(a)(2)(E)(i), for having been convicted of a crime of domestic violence; and under 8 U.S.C. § 1227(a)(2)(E)(ii), for having been convicted of violating a domestic violence protection order.

After a hearing, the immigration judge ordered Petitioner removed. Petitioner appealed to the Board of Immigration Appeals ("BIA"). The BIA held that Petitioner's convictions qualified under 8 U.S.C. § 1227(a)(2)(E)(ii), but expressly declined to reach the other two sections of the INA charged in the Notice to Appear. Petitioner then filed a timely petition for review with this court.

STANDARD OF REVIEW

We review de novo whether a particular conviction under state law is a removable offense. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir.1997).

DISCUSSION

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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 categorically 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 sufficient 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. (citation and internal quotation marks omitted). If the information in the record of conviction does not establish that the petitioner's conviction meets the requirements of the INA provision, then the conviction is not a removable offense under that provision. Id.

The BIA held that Petitioner's state convictions meet the requirements of 8 U.S.C. § 1227(a)(2)(E)(ii), which is titled "[v]iolators of protection orders" and reads in full:

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in 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 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 Section 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.

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 violence. See, e.g., Cal.Civ.Proc. Code 527.6(c) (authorizing a court to issue a temporary restraining order against any person, without regard to the existence or nature of a relationship between the assailant and the victim). Indeed, the government concedes that a conviction under California Penal Code section 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 conviction establish that Petitioner was convicted, more specifically, 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 categorical inquiry is therefore identical to a categorical inquiry: whether the INA provision embraces the "full range of conduct" under those state statutes. It is a kind of modified categorical inquiry nonetheless, because it is a second-tier inquiry.

Section 6320 of the California Family Code states in full:

The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, 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 California 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, whenever 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 Family 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 conclude that the protective order was issued pursuant to section 6320 only and that section 6389 then applied automatically.

Having sorted out...