Szalai v. Holder, 06-74994.

• Decision Date: 16 July 2009
• Docket Number: No. 06-74994.,06-74994.
• Citation: 572 F.3d 975
• Parties: Ferenc SZALAI, Petitioner v. Eric H. HOLDER Jr.,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 975

Ferenc SZALAI, Petitioner v. Eric H. HOLDER Jr.,^* Respondent.

No. 06-74994.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 24, 2008.

Filed July 16, 2009.

Teresa A. Statler, Immigration Law Office of Teresa A. Statler, Portland, OR, for the petitioner.

Wendy Benner-Leon, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C. for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. Agency No. 26-262-804.

Before A. WALLACE TASHIMA and MILAN D. SMITH, Jr., Circuit Judges, and GEORGE H. WU,^** District Judge.

PER CURIAM:

The question raised in this case is whether a judgment holding 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") dismissing 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 pursuant 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 children in her custody (or attempting to do any of those things), 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 exwife'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 violated the order "by being within 100 yards of[Petitioner's ex wife] not allowed by rest. order." The court sentenced Petitioner to serve 60 days in jail (with credit for time served and a suspension of the remainder), placed him on formal probation for a period of two years, ordered him to undergo treatment 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 protection 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. Petitioner 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. . . .

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 Nationality 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

B. Analysis

1. Categorical Analysis of the Oregon FAPA Restraining Order

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 following classes of deportable aliens:

. . . .

(2) Criminal offenses

. . . .

(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and[⁶]

. . . .

(ii) Violators of protection orders

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.

8 U.S.C.A. § 1227(a)(2)(E)(ii) (2005 & Supp.2007) (emphasis added). The question here is whether Petitioner's violation of the restraining order by being within 100 yards of his exwife's residence (without falling within the conditions set in connection with the provision for delivery or pick-up of children) brings him "categorically" within the scope of section 1227(a)(2)(E)(ii).

Petitioner admits that all provisions of the FAPA restraining order at issue in this case generally involve protection of persons who obtain the order, but insists that not all provisions 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 render 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 parenting 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 portion' 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, 152 Or.App. 40, 952 P.2d 84, 86-87(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 condition 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...