Cite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
197
Matter of Santos Enrique MILIAN-Dubon, Respondent
File A047 042 904 – San Diego, California
Decided February 19, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In applying the modified categorical approach to assess an alien’s conviction, it is proper
to consider the contents of police reports as part of the record of conviction if they were
specifically incorporated into the guilty plea or were admitted by the alien during the
criminal proceedings.
FOR RESPONDENT: John Richard Smith, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Megan Berry Oshiro, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MILLER, and MALPHRUS, Board Members.
MALPHRUS, Board Member:
In a decision dated November 27, 2007, an Immigration Judge terminated
the removal proceedings against the respondent upon his finding that the
Department of Homeland Security (“DHS”) failed to establish the respondent’s
removability under section 237(a)(2)(E)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), as an alien convicted of a crime
of domestic violence. The DHS has appealed from that decision. The
respondent has filed a brief in response. The DHS’s appeal will be sustained,
and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who was admitted
to the United States on June 7, 1999, as a lawful permanent resident. On
June 11, 2004, the respondent pled guilty to battery of his spouse in violation
of section 243(e)(1) of the California Penal Code. The DHS charged that the
respondent is removable under section 237(a)(2)(E)(i) of the Act based on his
conviction for a crime of domestic violence. The Immigration Judge
determined that the respondent’s record of conviction consisted of the criminal
complaint and the guilty plea, and he concluded that these documents did notCite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
198
provide sufficient evidence to establish that the respondent was convicted
of a crime of violence. He therefore terminated the proceedings.
On appeal the DHS argues that the Immigration Judge erred in excluding
from his “modified categorical” analysis of the respondent’s conviction
a police report that formed the factual basis for his guilty plea. Thus, the DHS
contends that it has established by clear and convincing evidence that the
respondent is removable as charged and that the Immigration Judge erred
in terminating these proceedings. The respondent maintains that the
Immigration Judge correctly excluded the police report from his analysis
of the conviction. We review de novo the Immigration Judge’s determination
on this question of law. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also
Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N
Dec. 493 (BIA 2008).
II. ANALYSIS
The term “crime of domestic violence” means “any crime of violence
(as defined in [18 U.S.C. § 16]) against a person” committed by, inter alia,
a current or former spouse of the person. Section 237(a)(2)(E)(i) of the Act.
The term “crime of violence” is defined in 18 U.S.C. § 16 (2006) as (a) an
offense that “has as an element the use, attempted use, or threatened use
of physical force against the person or property of another,” or (b) 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.” Thus, an offense cannot qualify
as a “crime of domestic violence” unless it is also a “crime of violence”
as defined by 18 U.S.C. § 16.
Section 243(e)(1) of the California Penal Code punishes a battery committed
“against a spouse, a person with whom the defendant is cohabiting, a person
who is the parent of the defendant’s child, former spouse, fiancé, or fiancée,
or a person with whom the defendant currently has, or has previously
had, a dating or engagement relationship.” “Battery” is defined by section 242
of the California Penal Code as “any willful and unlawful use of force
or violence upon the person of another.” Under the case law of the
United States Court of Appeals for the Ninth Circuit, in whose jurisdiction
this case arises, battery under section 242 requires neither a force
capable of hurting or causing injury nor violence in the usual sense of the term,
so it does not qualify categorically as a crime of violence under 18 U.S.C.
§ 16. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006); Matter
of Sanudo, 23 I&N Dec. 968, 973-74 (BIA 2006). Thus, the respondent’s
offense is not categorically a crime of domestic violence. We must thereforeCite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
1
We are aware of no other circuit that has adopted the same strict limitation on the
application of the modified categorical approach. See Aguilar-Turcios v. Holder, 582 F.3d
at 1108-09 (Bybee, J., dissenting). We do not intend to suggest that this approach should
be applied in cases outside of this circuit.
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employ the modified categorical approach described in Taylor v. United States,
495 U.S. 575 (1990), to determine whether the respondent’s conviction is for
a crime of domestic violence.
In the Ninth Circuit, the modified categorical approach only applies
when the particular elements of the crime of conviction are broader than
the generic crime, and it cannot be applied when the crime of conviction
is missing an element of the generic crime altogether. Aguilar-Turcios
v. Holder, 582 F.3d 1093 (9th Cir. 2009) (citing Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1073 (9th Cir. 2007)).1
In Navarro-Lopez v. Gonzales, the
issue was whether an alien’s conviction for accessory after the fact in violation
of section 32 of the California Penal Code was for an offense within the
generic definition of a crime involving moral turpitude. The court concluded
that since the offense of accessory after the fact under section 32 was missing
the “depravity” element of a generic crime involving moral turpitude, the
crime of conviction could never be narrowed to conform to the generic crime.
Navarro-Lopez v. Gonzales, 503 F.3d at 1070-73.
Since “battery” is an element of section 243(e)(1) of the California Penal
Code, the statute under which the respondent was convicted, and it is defined
by section 242 of the California Penal Code as “any willful and unlawful use
of force or violence,” it is encompassed within the generic crime of domestic
violence and is not missing any element of the generic offense. Thus,
Navarro-Lopez v. Gonzales is not applicable to the instant case and requires
no further analysis here.
In applying the modified categorical approach to assess an alien’s
conviction, the Immigration Judge and the Board may look beyond the
language of the statute of conviction to a specific set of judicially noticeable
documents that are part of the record of conviction, including the charging
document, the judgment of conviction, jury instructions, a signed guilty plea,
the transcript from the plea proceedings, and any explicit factual findings
by the trial judge to which the alien assented in the criminal proceedings.
Shepard v. United States, 544 U.S. 13, 16, 26 (2005); Sandoval-Lua
v. Gonzales, 499 F.3d 1121, 1129 (9th Cir. 2007); Larin-Ulloa v. Gonzales,
462 F.3d 456, 464, 468 (5th Cir. 2006); Canada v. Gonzales, 448 F.3d 560,
566 (2d Cir. 2006); Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004);
see also Garcia v. Att’y Gen. of U.S., 462 F.3d 287, 292 (3d Cir. 2006)
(finding that it is appropriate to examine the criminal complaint, which was the
relevant charging instrument, under the modified categorical approach);Cite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
2 In Evanson v. Att’y Gen. of U.S., 550 F.3d 284, 292-93 (3d Cir. 2008), which concerned
whether the defendant’s State conviction for possessing marijuana with intent to deliver
qualified as a “drug trafficking offense,” the Third Circuit rejected consideration of the
factual assertions in the judgment of sentence, which are facts that a judge considers
in making a discretionary sentencing determination, because they were “not necessarily
admitted by the defendant.” The court noted that it is proper to consider the charging
document to the extent that the defendant was actually convicted of the charges. Id. at 293.
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Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir. 2006) (stating that consultation
of the indictment and final judgment, which included a restitution order, was
proper in an aggravated felony case, because those documents comprised
“‘conclusive [judicial] records made or used in adjudicating guilt’” (quoting
Shepard v. United States, 544 U.S. at 21)); Vue v. INS, 92 F.3d 696, 700 (8th
Cir. 1996) (finding that it was proper to consider an amended criminal
complaint in making a deportation determination where the complaint
demonstrated on its face with sufficient clarity and reliability that the alien was
convicted of using a firearm and thus that his violation was of the type
contemplated by the deportation statute relating to firearms offenses). It is also
proper to consider a comparable judicial record, including the clerk’s minute
order prepared by a neutral officer of the court, provided the defendant had the
right to examine and challenge its accuracy during the criminal proceedings.
United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008); see also
Fregezo v. Holder, 576 F.3d 1030, 1039 n.7 (9th Cir. 2009). “The use of [such
judicially noticeable] documents is permitted because they are considered
sufficiently conclusive and reliable to establish the facts to which the alien
actually pleaded guilty.” Larin-Ulloa v. Gonzales, 462 F.3d at 464 (citing
Shepard v. United States, 544 U.S. at 23).2
In this case, the relevant conviction documents include the criminal
complaint and the respondent’s signed guilty plea. Count 2 of the complaint
charges that on or about June 3, 2004, the respondent did willfully and
unlawfully use force and violence upon his wife, in violation of section
243(e)(1) of the California Penal Code. The signed guilty plea reflects that the
respondent pled guilty to Count 2 and stipulated to the police report prepared
in connection with his arrest as the factual basis for his guilty plea. While
a police report, standing alone, is not part of the record of conviction, Matter
of Teixeira, 21 I&N Dec. 316, 319 (BIA 1996), the respondent’s decision
to incorporate the police report into the guilty plea made the report an “explicit
statement ‘in which the factual basis for the plea was confirmed by the
[respondent].’” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)
(quoting Shepard v. United States, 544 U.S. at 26, and concluding that the
contents of police reports may be considered for the purpose of applying the
modified categorical approach if they have been “specifically incorporated intoCite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
3 In deciding not to consider the police report as part of the respondent’s record
of conviction, the Immigration Judge followed the reasoning of a Ninth Circuit
panel in United States v. Almazan-Becerra, 482 F.3d 1085, 1090-91 (9th Cir. 2007),
which declined to accept police reports as the factual basis for the alien’s plea because his
plea was disjunctive and the police reports did not necessarily contain either his own account
of the events or a mutually agreed-upon statement of facts. In that decision, the court did
not decide whether police reports could be considered but rather remanded the case so the
district court could decide the issue in the first instance. In United States
v. Almazan-Becerra, 537 F.3d at 1098, which was issued subsequent to the Immigration
Judge’s decision, a different panel of the Ninth Circuit found that the district court properly
relied on the police reports in the record, concluding that they became a mutually
agreed-upon statement of facts when the alien stipulated that they contained a factual basis
for his plea.
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the guilty plea or admitted by a defendant”); see also United States
v. Almazan-Becerra, 537 F.3d 1094, 1097-1100 (9th Cir. 2008); Suazo Perez
v. Mukasey, 512 F.3d 1222, 1226 (9th Cir. 2008) (considering a police report
under the modified categorical approach where the alien had agreed that the
criminal court could review such reports supplied by the prosecution
to establish a factual basis for his plea).
The respondent argues that the police report should not be considered
because it was never admitted into the record of his criminal proceedings
or incorporated into the criminal complaint. We disagree. In this case, the
plea agreement references the police report as the “factual basis” for the
respondent’s plea per People v. West, 477 P.2d 409 (1970). The plea form
contains the handwritten statement “stip to police report as factual basis,” and
the respondent initialed the statement. “[T]his document serves as the
‘findings of fact adopted by the defendant upon entering the plea,’ which
is part of the judicial record on which the . . . courts may rely.” United States
v. Hernandez-Hernandez, 431 F.3d 1212, 1217-18 (9th Cir. 2005) (quoting
Shepard v. United States, 544 U.S. at 20).3
It was not necessary for the respondent to acknowledge the truth of every
statement in the police report or for the judge in the criminal case to have
specifically reviewed or referenced the report during the plea proceedings. See
United States v. Almazan-Becerra, 537 F.3d at 1099-1100 (permitting reliance
on police reports where the defendant stipulated generally that the reports and
other documents within the court file contained a factual basis for his guilty
plea, without specifically identifying which police reports contained the factual
basis); cf. United States v. Kirksey, 138 F.3d 120, 125-26 (4th Cir. 1998)
(finding that it was proper to consider the charging documents, which
included an Application for Statement of Charges/Statement of Probable
Cause that incorporated the sworn statements of complaining witnesses,
in analyzing the defendant’s convictions). Also, contrary to the respondent’sCite as 25 I&N Dec. 197 (BIA 2010) Interim Decision #3674
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argument, it is not necessary that the copy of the police report relied on in the
immigration proceedings be obtained from the files of the criminal case. The
only requirement is that the police report or reports relied on in the
immigration proceedings be incorporated by reference as at least part of the
factual basis for the guilty plea. Thus, the Immigration Judge erred in failing
to view the police report as part of the record of conviction and to consider its
contents in applying the modified categorical analysis. Suazo Perez
v. Mukasey, 512 F.3d 1222.
Accordingly, we find it necessary to remand the record to the Immigration
Judge for further proceedings. On remand, the Immigration Judge should
consult the police report to determine whether the DHS has demonstrated that
the respondent’s offense is a crime of domestic violence that renders him
removable as charged. The DHS’s appeal will be sustained, and the record
will be remanded.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The decision of the Immigration Judge is vacated,
and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing and for the entry of a new decision.