Szalai v. Holder

WU, District Judge,

concurring:

I concur in the result reached in the majority opinion and in most of its analysis based upon the decision in Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir.2009), except as noted herein.

Alanis-Alvarado holds, inter alia: 1) that the issue of whether a petitioner has violated a “protection order” under 8 U.S.C. § 1227(a)(2)(E)(ii) is to be determined under the “categorical approach” and the “modified categorical approach” first announced in Taylor v. United States, *983495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and 2) that the petitioner’s pleas to violating court orders issued pursuant to California Family Code § 6320 fell within section 1227(a)(2)(E)(ii) because section 6320 “is part of a statute that, in its entirety, aims to prevent domestic violence, authorizes a court to enjoin abusive acts, upon a showing of a past act of abuse .... [; and] every portion of a protective order issued under Section 6320 ‘involves protection against credible threats of violence ... or bodily injury.’ 8 U.S.C. § 1227(a)(2)(E)(ii).” 558 F.3d at 836, 838-39 (emphasis in original). I believe that the latter holding in Alanis-Alvarado is binding on this case and consequently Petitioner Szalai’s petition for review must be denied. However, I also conclude that Alanis-Alvarado’s initial holding (as to the applicability of Taylor’s categorical and modified categorical approaches to section 1227(a)(2)(E)(ii)) was simply assumed without analysis and is incorrect.

Admittedly, it has been noted that “the lower courts uniformly have applied the approach ... in Taylor v. United States ” to determine whether a conviction for violating a state criminal law falls within one of the removable offenses listed in 8 U.S.C. § 1227(a). Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). However, the precise problem raised in the Taylor scenario and addressed by the Court’s categorical and modified categorical approaches (while present where the application of a federal statute is predicated on the conviction of a crime which is undefined in the federal statute and where the conviction occurs in a state court) is not present in the context of section 1227(a)(2)(E)(ii), which is premised on a violation of a “protection order” which is defined in the federal statute itself.

In Taylor, the issue concerned the meaning of the word “burglary” as it was used in 18 U.S.C. § 924(e), which provided for a sentence enhancement for persons with three prior convictions for “a violent felony or a serious drug offense.” See 495 U.S. at 578-80, 110 S.Ct. 2143. A “violent felony” was defined to include “burglary” which was not itself defined in the then-current version of the statute. Id. at 581-82, 110 S.Ct. 2143. After reviewing the relevant legislative history of section 924(e), the Court concluded that Congress intended “burglary” to have its “generic” meaning (ie., having the basic elements of “an unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime”). Id. at 598, 110 S.Ct. 2143. It further held that the burglary predicate would not depend on the definition of “burglary” adopted by the State of conviction, but rather it would have to comply with the “categorical approach,” which required the inclusion of the elements of burglary as delineated in the “generic” definition. Id. at 588-90,110 S.Ct. 2143. Thus, under Taylor, a sentencing court in considering whether a state conviction constituted a burglary predicate was initially to employ what is now referred to as the “categorical approach” and determine if the state statute defining burglary was no broader than the generic definition of the crime.1 Id. at 599, 110 S.Ct. 2143. If the state statute was no broader, then the analysis was complete. Moreover, that examination was limited “only to the fact of conviction and the statutory definition of the prior *984offense.” Id. at 602, 110 S.Ct. 2143. If, however, the state statute defined burglary more broadly (for example by not requiring that the initial entry be unlawful or unprivileged, or by including nonbuildings such as cars or boats within its scope), the Court stated:

This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

Id.

In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court allowed, in limited situations, a further, examination of evidentiary materials beyond charges and jury instructions. As stated therein:

The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, [Taylor, 495 U.S.] at 602, 110 S.Ct. 2143, (discussing the use of these documents as an “example”), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge’s formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had “necessarily” rested on the fact identifying the burglary as generic, Taylor, supra, at 602, 110 S.Ct. 2143, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.

544 U.S. at 20-21, 125 S.Ct. 1254 (footnote omitted). However, the Court refused to permit further evidentiary explorations to be conducted beyond “conclusive records made or used in adjudicating guilt,” such as examining police reports and other “documents submitted to lower courts even prior to charges.” Id. at 21-23, 125 S.Ct. 1254.

In light of the above, it is unclear why the “categorical” or “modified categorical” approaches would be applicable to the 8 U.S.C. § 1227(a)(2)(E)® situation. Unlike “burglary” predicate situations where there are “generic” and apparently “non-generic” statutory definitions for the crime, section 1227(a)(2)(E)(ii) deals with “protection orders” where there is no such multitude of meanings. More importantly, the federal statute itself defines the term. Thus, there is no conflict between some “crime of conviction” and a “generic” crime. Hence, the very problem raised in Taylor (for which the “categorical” and “modified categorical” approaches were crafted in response) is absent here.2 The *985fact that section 1227(a)(2)(E)(ii) is limited to violations of “the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person ... for whom the protection order was issued” does not change the analysis.

There is a further basis for distinguishing the present situation from cases which require the application of the eategorical/modified categorical approaches as developed in the Taylor/Shepard line of decisions, ie., by examining what is required for the predicate element in the underlying statutes. The Court in Taylor emphasized that 18 U.S.C. § 924(e)(1) requires that the defendant have prior convictions, and not merely have committed three previous crimes. 495 U.S. at 600-01, 110 S.Ct. 2143. Further, the previous violent felony convictions must have involved the use or threat of force, a designated crime (such as burglary) or conduct that presents a serious potential risk of harm as an element, rather than simply have involved the use or threat force, the designated crime or serious risk of harm in the specific case. Id. at 600,110 S.Ct. 2143. It follows that a court, when evaluating convictions and elements, must constrain itself only to the fact of a conviction and its underlying elements (with a few exceptions). Id. at 602, 110 S.Ct. 2143. Section 1227(a)(2)(E)(ii), on the other hand, does not require convictions, but only that the defendant “engage[] in conduct ” that violates a protection order. 8 U.S.C. § 1227(a)(2)(E)®. In lieu of a conviction for a crime with such an element, this arguably should permit a court to venture outside the evidentiary realm of the categorical and modified categorical approaches. There would be no need to prohibit, say, examining police reports to determine if a defendant engaged in a certain type of conduct so long as due process concerns are not violated.

The inapplicability of the eategorical/modified categorical approaches to 8 U.S.C. § 1227(a)(2)(E)(ii) is strongly indicated by the Supreme Court’s recent decision in Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). In that case, the issue was whether the alien petitioner had been convicted of an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43)(M)(i) to include offenses involving “fraud or deceit in which the loss to the victim or victims exceeds $10,000.... ” The petitioner had been convicted of mail fraud and related crimes but the jury made no findings as to the amount of the loss. Nijhawan, 129 S.Ct. at 2298. However, at sentencing, the petitioner stipulated that the loss exceeded $100 million. The Government subsequently sought to remove him from the United States on the basis of that conviction. The IJ held that he had been convicted of an “aggravated felony” under sections 1227(a)(2)(A)(iii) and § 1101(a)(43)(M)(i), and the Third Circuit agreed. Id.

On certiorari, the issue was whether— as to certain language in section 1101(a)(43)(M)(i), ie. “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,-000 ” — the italicized phrase refers to a necessary/generic element of the fraud or deceit “offense” or whether it refers to the particular circumstances in which the offender committed the more broadly defined fraud or deceit crime on the particular occasion. Id. If the former, then arguably the “categorical” approach delineated in Taylor would be applicable; if *986the latter, then a broader “circumstance-specific” analysis would be made. Id. at 2298-99. As stated in Nijhawan: “If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender’s conviction.” Id. The Court noted the split in the circuit courts which had adopted the categorical/definitional approach (such as the Ninth Circuit in Kawashima, 530 F.3d at 1117), and those which employed a “fact-based approach” (such as the First and Fifth Circuits). Id. at 2298.

Eventually, the Court held that: 1) “the italicized language does not refer to an element of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion” (id.); and 2) “we conclude that the ‘fraud and deceit’ provision before us calls for a ‘circumstance-specific,’ not a ‘categorical,’ interpretation” (id. at 2300). Of particular note is that, in Section III of the opinion, the Court specifically rejected the petitioner’s request to borrow from Taylor a “modified categorical approach” to the analysis. Id. at 2302-03. In doing so, the Court found that the “evidentiary limitations” urged by the petitioner and applicable to the “modified categorical approach” were not required. Id. at 2303. As stated by the Court: “we have found nothing in prior law that so limits the immigration court. Taylor, James [v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)] and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction.” Id.

In conclusion, the central issues in determining whether Szalai falls within 8 U.S.C. § 1227(a)(2)(E)® are: 1) does the Oregon FAPA restraining order qualify as a “protection order” under the definition delineated in the federal statute, and 2) did Szalai violate that portion of it which “involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued....” Those matters can be resolved quite simply and without the extraneous burdens and restrictions of conducting a purported categorical and/or modified categorical analysis.3 See generally, Chambers v. *987United States, 555 U.S. -, 129 S.Ct. 687, 693-95, 172 L.Ed.2d 484 (2009) (Alito, J., concurring) (observing that Taylor’s “ ‘categorical approach’ to predicate offenses has created numerous splits among the lower federal courts, the resolution of which could occupy this Court for years.) [Footnote omitted.].”

. The Court explained that: "If the state statute is narrower than the generic view, e.g., in cases of burglary convictions in common-law States or convictions of first-degree or aggravated burglary, there is no problem, because the conviction necessarily implies that the defendant has been found guilty of all the elements of generic burglary.” Id. at 599, 110 S.Ct. 2143.

. As noted in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir.2008), abrogated in part, Nijhawan v. Holder, -U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009): “The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime.” Id. at 1115(quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007)). In the context of 8 U.S.C. § 1227(a)(2)(E)(ii), even if one were to assume that the “crime of *985conviction” is the violation of the restraining/protective order, what exactly would the ''generic” crime be? If there is no generic crime, why apply the modified categorical approach at all?

. One might question whether the majority opinion in Alanis-Alvarado itself actually and/or correctly applied the categorical and modified categorical approaches delineated in Taylor and Shepard. Indeed, the dissent in Alanis-Alvarado accuses the majority of having incorrectly applied the modified categorical approach. 558 F.3d at 840-41(Rawlin-son, J., dissenting).

In Alanis-Alvarado, it was initially held that "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) ....” 558 F.3d at 835. However, later it was observed that "[e]xamining the 'full range of conduct' proscribed by section 273.6, Petitioner's conviction does not suffice under the categorical approach.” Id. at 837 (emphasis in original). The court then turned to the modified categorical approach in order to examine the petitioner’s "records of conviction.” Id. In doing so, it cryptically noted that:

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.

*987Id. It is difficult to comprehend how a modified categorical inquiry can be “identical” to a categorical inquiry when going beyond the mere fact of conviction and the statutory definition of the operative crime is by definition the distinction between the categorical approach and the modified categorical approach. See generally Gonzales, 549 U.S. at 187, 127 S.Ct. 815; Kawashima, 530 F.3d at 1114.