FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE REFUGIO CORTEZ-GUILLEN,
Petitioner, No. 09-72358
v.
Agency No.
A030-458-000
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 31, 2010—Seattle, Washington
Filed October 5, 2010
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
16751
CORTEZ-GUILLEN v. HOLDER 16753
COUNSEL
Matt Adams and Betsy Tao, Northwest Immigration Rights
Project, Tacoma, Washington, for the petitioner.
Aimee J. Fredrickson and Tim Ramnitz, United States Depart-
ment of Justice, Office of Immigration Litigation, for the
respondent.
OPINION
BEA, Circuit Judge:
A Mexican, now a lawful permanent U.S. resident, was
convicted in Alaska of criminal “coercion.” We must now
decide whether that state-law conviction constitutes a “crime
of violence” under Federal Immigration law. If so, he is sub-
ject to removal from this country.
We hold that the Alaska “coercion” conviction does not
necessarily equate with a federal “crime of violence” and
grant the petition and remand to the Board of Immigration
Appeals (BIA) for further proceedings.
16754 CORTEZ-GUILLEN v. HOLDER
I
Jose Cortez-Guillen, a native and citizen of Mexico,
entered the United States on July 6, 1973, as a lawful perma-
nent resident. On June 16, 2006, he was arrested and charged
with sexual abuse of a minor in the second degree, in viola-
tion of Alaska Statute § 11.41.436(a)(2). That charge was ulti-
mately dropped and, on September 16, 2008, Cortez-Guillen
instead pleaded guilty to one count of coercion, in violation
of Alaska Statute § 11.41.530(a)(1). He was sentenced to four
years in prison.
The Department of Homeland Security (DHS) detained
Cortez-Guillen and commenced removal proceedings against
him as an alien convicted of an aggravated felony. Aggra-
vated felonies include crimes of violence as defined in 18
U.S.C. § 16 for which the term of imprisonment is at least one
year. 8 U.S.C. § 1101(a)(43)(F). At his removal hearing, the
Immigration Judge (IJ) held Cortez-Guillen’s conviction for
coercion was not categorically a crime of violence but that,
under the modified categorical approach, Cortez-Guillen’s
coercion conviction constituted a crime of violence because
the 2006 Indictment and Information charged Cortez-Guillen
with sexual abuse of a minor. The IJ ordered Cortez-Guillen
removed to Mexico.
The BIA affirmed the IJ’s order, but on a different ground;
it held the coercion was categorically a “crime of violence.”
Petitioner timely appealed. This petition presents a question
of law, which we review de novo. 8 U.S.C. § 1252(a)(2)(D);
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1126 n.7 (9th
Cir. 2006) (en banc).
II
[1] Under the Taylor1 categorical approach, we “compare
1
Taylor v. United States, 495 U.S. 575 (1990).
CORTEZ-GUILLEN v. HOLDER 16755
the elements of the statute of conviction with a federal defini-
tion of the crime to determine whether conduct proscribed by
the statute [of conviction] is broader than the generic federal
definition.” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.
2008) (citation omitted). Here, the coercion statute provides:
(a) A person commits the crime of coercion if the
person compels another to engage in conduct from
which there is a legal right to abstain or abstain from
conduct in which there is a legal right to engage, by
means of instilling in the person who is compelled a
fear that, if the demand is not complied with, the per-
son who makes the demand or another may
(1) inflict physical injury on anyone, except under
circumstances constituting robbery in any degree, or
commit any other crime . . . .
Alaska Stat. § 11.41.530(a)(1) (2010) (emphasis added). The
statute requires the perpetrator to instill fear in the victim,
should he not comply with the demands made on him. But the
fear can be of either physical injury—violence done to him—
or “of any other crime”—which may involve no violence, as
in blackmail. For § 11.41.530(a)(1) to qualify under Taylor as
a categorical “crime of violence,” it must be either “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another,” 18 U.S.C. § 16(a), or “any other offense that is
a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense,” 18 U.S.C.
§ 16(b). As one can readily see, threat of blackmail, for exam-
ple, is neither.
[2] Although the Supreme Court has explained that there
must be “a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls out-
side the generic definition of a crime,” Gonzalez v. Duenas-
16756 CORTEZ-GUILLEN v. HOLDER
Alvarez, 549 U.S. 183, 193 (2007), we “cannot . . . ignore the
plain language of [the statute of conviction].” Cerezo, 512
F.3d at 1167. “[W]here, as here, the state statute plainly and
specifically criminalizes conduct outside the contours of the
federal definition, we do not engage in judicial prestidigita-
tion by concluding that the statute ‘creates a crime outside the
generic definition of a listed crime.’ ” Id. (quoting Duenas-
Alvarez, 549 U.S. at 193).
[3] Even though the plain text of Alaska’s coercion statute
criminalizes conduct outside the contours of the federal defi-
nition of a crime of violence, we must still consider whether
Alaskan courts have interpreted the scope of
§ 11.41.530(a)(1) more narrowly so as to make it applicable
only to conduct that constitutes a crime of violence. See
Cerezo, 512 F.3d at 1167-68. Here, the Alaskan courts have
not interpreted Alaska’s coercion statute so as to narrow its
scope. The Alaskan courts construe the statute according to its
plain text. See, e.g., Powell v. State, 12 P.3d 1187, 1190
(Alaska Ct. App. 2000) (requiring the State to prove defen-
dant threatened that, if his demand was not complied with, he
“would inflict physical injury on someone or commit some
other illegal act.”) (emphasis added).
Further, a case cited by Cortez-Guillen demonstrates that
convictions under § 11.41.530(a)(1) for conduct that does not
involve a substantial risk of physical force are not merely the
product of legal imagination. In Alaska v. Wilson, the defen-
dant was charged with and pleaded guilty to coercion under
Alaska Statute § 11.41.530(a)(1). No. 3AN-07-8794 (Alaska
Sup. Ct. Dec. 17, 2007). The complaint charged Wilson with
coercion based only on a threat to reveal confidential informa-
tion; no threat of violence was alleged. Id.
[4] Therefore, because the plain language of
§ 11.41.530(a)(1) criminalizes conduct that is broader than the
federal definition of a crime of violence and because Alaskan
courts have not interpreted § 11.41.530(a)(1) more narrowly
CORTEZ-GUILLEN v. HOLDER 16757
than its plain language, § 11.41.530(a)(1) is not categorically
a crime of violence.
We remand this case to the BIA so that they may address
the modified categorical approach in the first instance. See
INS v. Ventura, 537 U.S. 12 (2002).
GRANTED AND REMANDED.