Alanis-Alvarado v. Mukasey
| Decision Date | 03 September 2008 |
| Docket Number | No. 06-72369.,06-72369. |
| Citation | 541 F.3d 966 |
| Parties | Carlos ALANIS-ALVARADO, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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: ALARCÓN, SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.
Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge RAWLINSON.
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.
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 relevant parts of the two guilty pleas are identical and read as follows:
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.
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).
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). 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 look beyond the statutory text to "a narrow, specified set of documents that includes ... guilty pleas."2 Id. (internal quotation marks omitted). If the information in those documents 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) (). 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 guilty pleas in the record 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. Although this inquiry rides under the banner of the "modified categorical approach," the guilty pleas 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 guilty pleas state 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 the various state statutes, we turn to the question whether Petitioner's convictions meet the requirements of the INA provision. Petitioner argues that his convictions 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.
Section 6320 is part of the "Domestic Violence Prevention Act." Cal. Fam.Code § 6200. The Code defines a "protective order," in part, as "[a]n order described in Section 6320 enjoining specific acts of abuse." Id. § 6218 (emphasis added). A protective...
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Szalai v. Holder, 06-74994.
...the restraining order's 100 yard stay away provision. 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......
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Alanis-Alvarado v. Holder
... ... 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 ... ...