Suazo Perez v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL SUAZO PEREZ, 
Petitioner, No. 06-73523
v.
 Agency No.
A95-562-903
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 5, 2007—Seattle, Washington
Filed January 22, 2008
Before: M. Margaret McKeown and Richard R. Clifton,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge McKeown
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
873
SUAZO PEREZ v. MUKASEY 875
COUNSEL
Matt Adams, Northwest Immigrant Rights Project, Seattle,
Washington, for the petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Department of Justice, Washington, D.C.; David V. Bernal,
Jesse M. Bless, Office of Immigration Litigation, Civil Divi-
sion, Department of Justice, Washington, D.C., for the
respondent.
OPINION
McKEOWN, Circuit Judge:
Fidel Suazo Perez (“Suazo”) petitions for review of the
Board of Immigration Appeals’ (“BIA”) summary affirmance
of the Immigration Judge’s (“IJ”) removal order.1 The IJ
ordered Suazo’s removal on the basis that his conviction for
misdemeanor assault was a conviction for a “crime of vio-
lence,” and thus an “aggravated felony.” Because fourth
degree assault under Washington law is not categorically a
“crime of violence,” and the modified categorical approach
does not establish that Suazo’s conviction was based on a
“crime of violence,” we grant his petition.
BACKGROUND
Suazo is a native and citizen of Mexico who entered the
United States in 1989 and became a lawful permanent resi-
dent in 2005. Suazo was then convicted for domestic violence
assault in the fourth degree under RCW §§ 9A.36.041,
1
Where the BIA affirms an IJ’s order without opinion, we review the
IJ’s decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898,
902 (9th Cir. 2004).
876 SUAZO PEREZ v. MUKASEY
10.99.020.2 He was sentenced to 365 days imprisonment. The
Department of Homeland Security charged Suazo with being
removable on the basis that his conviction constituted an “ag-
gravated felony” under 8 U.S.C. §§ 1101(a)(43)(F) and
1227(a)(2)(A)(iii), or a “crime involving moral turpitude”
under 8 U.S.C. § 1227(a)(2)(A)(i).
Expressly applying a modified categorical approach, the IJ
concluded that Suazo’s conviction for fourth degree domestic
violence assault was a “crime of violence” under 18 U.S.C.
§ 16(a),3 and ordered Suazo’s removal on the basis of his “ag-
gravated felony” conviction. The IJ also concluded that Suazo
had not committed a crime involving moral turpitude. The
BIA summarily affirmed the IJ’s decision.
ANALYSIS
The question we consider is whether Suazo’s conviction
qualifies as a “crime of violence,” and therefore an “aggra-
vated felony,” which is a ground for removal. See 8 U.S.C.
§§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). Although we lack juris-
diction to review “any final order of removal against an alien
who is removable by reason of having committed” an aggra-
vated felony, id. § 1252(a)(2)(C), Suazo’s challenge presents
a question of law over which we have jurisdiction. Id.
§ 1252(a)(2)(D); see Morales-Alegria v. Gonzales, 449 F.3d
1051, 1053 (9th Cir. 2006) (stating that whether an offense
constitutes an “aggravated felony” under § 1101(a)(43)(F) is
a question of law).
In analyzing whether Suazo’s conviction was for a “crime
of violence,” a question we review de novo, we first apply the
2
RCW § 10.99.020(5)(d) provides that “[a]ssault in the fourth degree
(RCW 9A.36.041),” when committed by one family or household member
against another, constitutes “domestic violence.”
3
Only 18 U.S.C. § 16(a) is implicated by Suazo’s petition, because
§ 16(b) pertains only to felonies.
SUAZO PEREZ v. MUKASEY 877
categorical approach set forth by the Supreme Court in Taylor
v. United States, 495 U.S. 575 (1990). The categorical
approach requires us to compare the elements of the statute of
conviction, fourth degree assault under Washington law, to
the generic crime, a “crime of violence” under 18 U.S.C.
§ 16(a), and then to determine whether the “ ‘full range of
conduct’ covered by [the criminal statute] falls within the
meaning of that term.” Chang v. INS, 307 F.3d 1185, 1189
(9th Cir. 2002) (citation omitted).
[1] We begin with the federal definition of a “crime of vio-
lence”: “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). Section 9A.36.041 of
the Washington Revised Code states that a person is guilty of
fourth degree assault if, “under circumstances not amounting
to assault in the first, second, or third degree, or custodial
assault, he or she assaults another.” Because the Washington
statute does not lay out the elements of the crime, we look to
state common law for guidance. See Ortega-Mendez v. Gon-
zales, 450 F.3d 1010, 1016 (9th Cir. 2006) (“in determining
the categorical reach of a state crime, we consider not only the
language of the state statute, but also the interpretation of that
language in judicial opinions.”) (citation omitted).
[2] Washington courts have held that fourth degree assault
can be committed in three ways: (1) an attempt, with unlawful
force, to inflict bodily injury upon another; (2) an unlawful
touching with criminal intent; or (3) putting another in appre-
hension of harm. See State v. Aumick, 894 P.2d 1325, 1328
n.12 (Wash. 1995) (en banc); State v. Davis, 808 P.2d 167,
172 (Wash. Ct. App. 1991). Under Washington law, fourth
degree assault can be committed by nonconsensual offensive
touching. See Aumick, 894 P.2d at 1328 n.12. We have held
that “conduct involving mere offensive touching does not rise
to the level of a ‘crime of violence’ within the meaning of 18
U.S.C. § 16(a).” Ortega-Mendez, 450 F.3d at 1017. Accord-
ingly, because the “full range of conduct” covered by the
878 SUAZO PEREZ v. MUKASEY
Washington fourth degree assault statute does not “fall[ ]
within the meaning of” a “crime of violence,” Suazo’s convic-
tion was not categorically a conviction for a “crime of vio-
lence.” Chang, 307 F.3d at 1189.
If a crime is categorically overbroad, we proceed to a modi-
fied categorical approach in which we look beyond the statute
of conviction and consider “a narrow, specified set of docu-
ments that are part of the record of conviction” to determine
whether the defendant was convicted of the necessary ele-
ments of the generic crime. Tokatly v. Ashcroft, 371 F.3d 613,
620 (9th Cir. 2004). The modified categorical approach may
be applied where a statute of conviction is divisible into sev-
eral different crimes, one or more of which may constitute a
“crime of violence.” Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1073 (9th Cir. 2007) (en banc) (citing Carty v. Ashcroft,
395 F.3d 1081, 1084 (9th Cir. 2005)).
[3] In Carty, the statute of conviction was, on its face,
divisible into two different crimes. 395 F.3d at 1083-84. In
contrast, the Washington fourth degree assault statute does
not expressly lay out different ways that the crime may be
committed. RCW § 9A.36.041. However, Washington courts
have interpreted the statute to encompass three different ways
of committing the crime, including an attempt, with unlawful
force, to inflict bodily injury on another. See Aumick, 894
P.2d at 1328 n.12; see also 11 Washington Practice: Washing-
ton Pattern Jury Instructions: Criminal 35.50 (2d ed. 2005)
(following state common law in defining the three ways that
fourth degree assault may be committed). Thus, Suazo’s
Washington assault conviction may have entailed “the use,
attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C. § 16(a). In such a
case, the modified categorical approach may be invoked to
determine whether the defendant’s fourth degree assault con-
viction was for a “crime of violence.”
We next consider which documents comprise the “narrow,
specified set of documents” that may be used in the modified
SUAZO PEREZ v. MUKASEY 879
categorical analysis. Tokatly, 371 F.3d at 620. We are gener-
ally limited to reviewing the statutory definition, charging
document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding made by the trial judge to
which the defendant assented. Shepard v. United States, 544
U.S. 13, 16 (2005). Police reports may be considered “if spe-
cifically incorporated into the guilty plea or admitted by a
defendant.” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th
Cir. 2005).
In a section of his written plea, Suazo checked a box by
which he agreed that “the court may review the police reports
and/or a statement of probable cause supplied by the prosecu-
tion to establish a factual basis for the plea.” Like Parrilla,
Suazo’s decision to incorporate the police report into his
guilty plea made the report “an explicit statement ‘in which
the factual basis for the plea was confirmed by the defen-
dant.’ ” Id. (quoting Shepard, 544 U.S. at 26). Thus, in this
circumstance, “relying upon the [police report] to establish
the elements of the crime” of conviction “does not undermine
the purposes of our limited modified categorical inquiry.” Id.
(citations omitted).4
[4] Despite our consideration of the written guilty plea and
the police report, the record does not demonstrate that Suazo’s
conviction was based on an attempt to inflict bodily injury on
another person with unlawful force. In other words, the record
leaves unclear whether his conviction rested on an attempt to
inflict injury with unlawful force, an unlawful touching, or
putting another person in apprehension of harm. Therefore,
we “are compelled to hold that the government has not met
4
That Suazo entered an Alford plea does not prevent us from evaluating
the police report under the modified categorical approach. See United
States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006)
(“Whether or not a defendant maintains his innocence, the legal implica-
tions of a guilty plea are the same in the context of the modified categori-
cal approach under Taylor.”).
880 SUAZO PEREZ v. MUKASEY
its burden of proving that the conduct of which the defendant
was convicted constitutes a predicate offense” that is a basis
for removal. Tokatly, 371 F.3d at 620-21.
Because the Washington fourth degree assault statute is cat-
egorically overbroad, and the modified categorical approach
does not establish that Suazo was convicted of a “crime of
violence,” we grant his petition and remand to the BIA for
further proceedings as necessary.
PETITION GRANTED.