Szalai v. Holder , 572 F.3d 975 ( 2009 )

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 (“U”) 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 Beaver-ton, 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(l)(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 violence, repeated harassment, or bodily injury.” See Alanis-Alvarado, 558 F.3d at 839 (“[S]ome acts, such as telephoning one’s domestic partner or coming within a specified distance of him or her, do not typically constitute violence, threats, or harassment.”).

However, even if Petitioner’s reading of Gerlack is accurate (and it is not clear that it is), that the Oregon court only found Petitioner in violation of the 100 yard stay away prohibition is not to say that such a. provision does not “involve!] protection against credible threats of violence, repeated harassment, or bodily injury.” Indeed, in Alanis-Alvarado, we discussed the distinction a statute such as section 1227(a)(2)(E)(ii) inherently draws between assessing what an accused individual has actually done in violating a protective order versus the purpose that a protective order serves:

If the INA provision required the state court to find that petitioner actually had engaged in violent, threatening, or harassing behavior, we would conclude that Petitioner’s convictions do not qualify categorically. But the INA provision requires something different: that the state court conclude that Petitioner violated “the portion of a protection order that involves protection against” violence, threats, or harassment. 8 U.S.C. § 1227(a)(2)(E)(ii) (emphasis added). As discussed above, an injunction against making a telephone call (and all the other enumerated acts in section 6320) “involves protection against” violence, threats, or harassment, even if it is possible that Petitioner’s violative conduct did not independently constitute violence, threats, or harassment.

558 F.3d at 839-40.

Ultimately, Petitioner’s arguments are foreclosed by the reasoning in Alanis-Alvarado. At issue in that case was section 6320 of the California Family Code which provided:

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. [Emphasis added.⁷]

We were unable to determine from the record in that case (which, under the modified categorical approach that we adopted, consisted of the petitioner’s two guilty pleas) which portion of a section 6320 protective order the petitioner had violated.⁸ See 558 F.3d at 839. Nevertheless, we concluded there that “every portion ” of a protective order issued under that statute “involves protection against credible threats of violence, repeated harassment, or bodily injury.” Id. at 839-40 (emphasis in original). Because section 6320 of the California Family Code permitted protective orders which merely prevent a party from “coming within a specified distance of’ another party and because we concluded that any protective order issued under section 6320 met the definition of section 1227(a)(2)(E)(ii), Petitioner’s arguments here are untenable. Id.

At oral argument,⁹ Petitioner emphasized that in Alanis-Alvarado we concluded only that all portions of a section 6320 protective order served the purpose of section 1227(a)(2)(E)(ii) because the issuance of an order under section 6320 required “a showing of ‘reasonable proof of a past act or acts of abuse.’ ” Id. at 838, quoting Cal. FanxCode § 6300. However, a FAPA restraining order imposes a similar threshold requirement and more. See In re Marriage of Ringler, 221 Or.App. 43, 188 P.3d 461, 466 (2008) (“Under ORS 107.710, in order to obtain a FAPA restraining order, a petitioner must prove, by a preponderance of evidence, that he or she has been the victim of ‘abuse,’ as that term is defined in ORS 107.705.”¹⁰); OR. REV. STAT. § 107.718(1) (indicating that the court may issue a FAPA restraining order upon a showing that the individual “has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition,” and “that there is an imminent danger of further abuse to the [individual] and that the respondent represents a credible threat to the physical safety of the [individual] or the [individual’s] child.... ”). Moreover, in issuing the FAPA order here, the Oregon court in fact found that Petitioner had abused his ex-wife within the meaning of OR. REV. STAT. § 107.705, and that he “represents a credible threat to the physical safety of [his ex-wife] or [her] child and there is an imminent danger of further abuse.... ” Petitioner’s attempt to distinguish AlanisAlvarado is therefore unavailing.

We are bound by Alanis-Alvarado. However, as in that case, based on the government’s concession that the full range of conduct proscribable under a FAPA restraining order is broader than section 1227(a)(2)(E)(ii), we conclude that “Petitioner’s conviction does not suffice under the categorical approach.” See 558 F.3d at 837 (emphasis in original). We therefore proceed to an examination under the modified categorical approach.

2. The Modified Categorical Approach

[5] The parties dispute whether the BIA relied upon improper material in reaching its decision and even whether we have jurisdiction to resolve that issue. In light of Alanis-Alvarado, however, we need not reach those disputes. Even assuming that the BIA erred by considering the police report,¹¹ Petitioner does not deny that he violated the restraining order’s 100 yard stay away provision which we concluded in Alanis-Alvarado “involves protection against credible threats of violence, repeated harassment, or bodily injury.” Given the import of Alanis-Alvarado, all information necessary to the section 1227(a)(2)(E)(ii) analysis here was contained in the FAPA restraining order and the Judgment on Contempt Hearing, documents which Petitioner admits may be considered under the modified categorical approach. See Kawashima v. Mukasey, 530 F.3d 1111, 1114 n. 4 (9th Cir.2008), abrogated in part, Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). Thus any error in the BIA’s consideration of the police report was harmless.

The petition for review is DENIED.

1 . This fact is derived from an Affidavit in Support of Probable Cause Arrest and from an incident report that was part of a police report, both of which were filed in connection with the violation of restraining order contempt proceedings and which appear to have been before both the IJ and the BIA. Ordinarily, we could not rely upon those sources to establish this fact if we follow the “modified” categorical approach that Petitioner asserts applies. See United States v. Lopez-Solis, 447 F.3d 1201, 1210 (9th Cir. 2006); United States v. Kelly, 422 F.3d 889, 895-96 (9th Cir.2005); Parrilla v. Gonzales, 414 F.3d 1038, 1043-44 (9th Cir.2005). Ultimately, however, reliance on those documents is unnecessary for purposes of determining whether Petitioner’s offense qualifies as a violation of a "protection order” under 8 U.S.C. § 1227(a)(2)(E)(ii), the pertinent issue in this proceeding.

2 . Under FAPA, violation of a restraining order gives rise to contempt proceedings. As explained in Bachman v. Bachman, 171 Or. App. 665, 16 P.3d 1185, 1188 (2000) (quoting Hathaway v. Hart, 300 Or. 231, 708 P.2d 1137, 1139 (1985)), "the essence of [FAPA] is to prevent acts of family violence through restraining orders and, if the court orders are disobeyed, to provide legal sanctions for the violations of the orders because ordinary criminal actions at law were found to be inadequate to achieve this desired legislative result.”

3 . Although the BIA referenced a "police report,” it in fact cited to an Affidavit in Support of Probable Cause Arrest which was filed as part of a certified copy of Petitioner’s conviction record.

4 . In his petition to this court, Szalai does not challenge the denial of his request for asylum, withholding of removal, and/or relief under the Convention Against Torture.

5 . The BIA's interpretation and application of the immigration laws are nevertheless entitled to deference in certain instances under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Marmolejo-Campos v. Holder, 558 F.3d 903, 908-11 (9th Cir.2009). The government argues that the BIA’s interpretation of section 1227(a)(2)(E)(ii) is entitled to such deference here, whereas Petitioner points out that the BIA’s interpretation is due no deference when its construction is contrary to the statute’s "plain and sensible meaning.” See Prieto-Romero v. Clark, 534 F.3d 1053, 1061 (9th Cir.2008) (“We will not defer to the BIA when its construction of a statute defies its plain and sensible meaning.’ Kankamalage v. INS, 335 F.3d 858, 862(9th Cir.2003)”); Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th Cir.2005) (applying Chevron deference principles to BIA’s construction of section 1227(a)(l)(E)(I)); Singh v. Ashcroft, 386 F.3d 1228, 1230-31 (9th Cir.2004) (rejecting call for Chevron deference in interpreting state and federal criminal laws in context of removal proceeding under section 1227(a)(2)(E)(i)). We need not reach the Chevron question, however, because Petitioner’s argument regarding his desired construction of section 1227(a)(2)(E)(ii) is foreclosed by a recent controlling Ninth Circuit case ii.e. Alanis-Alvarado), as discussed further below. That controlling case, which addressed arguments similar to those raised herein, made no mention of Chevron or the deferential review required by that case and doctrine.

6 . The United States Code Annotated provides, in a footnote, that this language was “[s]o in original.” See 8 U.S.C.A. § 1227 at pages 326 and 331 (Thomson/West 2005).

7 . As we noted in Alanis-Alvarado, section 6320 was amended in 2007 — after the protective orders in that case were issued and after the petitioner had been convicted. See 558 F.3d at 838 n. 3.

8 . In this case, the Judgment on Contempt Hearing specified that Szalai had violated 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 the time of oral argument, none of the subsequent amendments affects our analysis or Alanis-Alvarado’s application to this case.

10 . "Abuse” under FAPA means "[attempting to cause or intentionally, knowingly or recklessly causing bodily injury,” "[intentionally, knowingly or recklessly placing another in fear of imminent bodily injury,” or "[clausing another to engage in involuntary sexual relations by force or threat of force.” Or. Rev. Stat. § 107.705(1); see also Boyd v. Essin, 170 Or.App. 509, 12 P.3d 1003, 1004 (2000).

11 . We note that, in Alanis-Alvarado, we followed the modified categorical approach, albeit without obviously rejecting an argument that we should not do so. See 558 F.3d at 836-37.