CASE LAW-CRIME AND DEPORTATION
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA RENTERIA-MORALES, ü
Petitioner, No. 04-74742
v. ý Agency No. MICHAEL B. MUKASEY, Attorney A92-202-968
General,
Respondent. þ
MARIA JESUS RIVERA DE ALVARADO, ü
Petitioner, No. 06-73283
v. ý Agency No. MICHAEL B. MUKASEY, Attorney A17-970-844
General, OPINION
Respondent. þ
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 9, 2007—San Francisco, California
Filed July 10, 2008
Before: Sidney R. Thomas, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Tallman
8393
COUNSEL
Irma Renteria-Morales v. Mukasey , 04-74742:
Martin R. Guajardo (brief) and Marty Robles (argued), Law
Office of Martin R. Guajardo, San Francisco, California, for
the petitioner.
Marshall Tamor Golding (brief) and Ann Carroll Varnon
(argued), United States Department of Justice, Civil Division,
Washington, D.C., for the respondent.
Maria Jesus Rivera De Alvarado v. Mukasey , 06-73283:
Carol Dvorkin, San Francisco, California, for the petitioner.
David Schor, United States Department of Justice, Civil Division,
Washington, D.C., for the respondent.
RENTERIA-MORALES v. MUKASEY 8397
OPINION
IKUTA, Circuit Judge:
The two petitions for review consolidated in this opinion1
raise the question whether a conviction for failure to appear
in court in violation of 18 U.S.C. § 31462 is categorically an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(S)3 or
8 U.S.C. § 1101(a)(43)(T).4 Applying the categorical
approach prescribed by Taylor v. United States, 495 U.S. 575,
600-02 (1990), we conclude that a violation of § 3146 is not
categorically an aggravated felony under either provision.
Applying the modified categorical approach to the two petitions
before us, we determine that the prior conviction of one
petitioner qualifies as an aggravated felony and the prior conviction
of the other petitioner does not.
I
Irma Renteria Morales (Renteria) and Maria Jesus Rivera
1 These petitions are ordered consolidated for purposes of disposition.
2 18 U.S.C. § 3146 states, in pertinent part:
(a) Offense.— Whoever, having been released under this chapter
knowingly—
(1) fails to appear before a court as required by the conditions
of release; or
(2) fails to surrender for service of sentence pursuant to a
court order;
shall be punished as provided in subsection (b) of this section.
3 Under 8 U.S.C. § 1101(a)(43)(S), the definition of aggravated felony
includes "an offense relating to obstruction of justice, perjury or subornation
of perjury, or bribery of a witness, for which the term of imprisonment
is at least one year."
4 Under 8 U.S.C. § 1101(a)(43)(T), the definition of aggravated felony
includes "an offense relating to a failure to appear before a court pursuant
to a court order to answer to or dispose of a charge of a felony for which
a sentence of 2 years' imprisonment or more may be imposed."
8398 RENTERIA-MORALES v. MUKASEY
de Alvarado (Rivera), both natives and citizens of Mexico,
petition for review of the affirmance by the Board of Immigration
Appeals (BIA) of a final order of removal.
A
Renteria became a lawful permanent resident of the United
States in 1990. On January 13, 1998, Renteria pleaded guilty
to violation of 18 U.S.C. § 3146. The judgment entered by the
district court stated: "The defendant is convicted of the offense(
s) of: violating Title 18, United States Code, Sections
3146, Bail Jumping, as charged in the Information filed herein."
The information stated:
That on or about July 20, 1992, at or near Tucson,
in the District of Arizona, IRMA LINDA
RENTERIA-MORALES, after having been released
on or about March 2, 1992, pursuant to Chapter 207
of Title 18 of the United States Code, in connection
with a charge of possession with intent to distribute
marijuana, in violation of Title 21 United States
Code § 841(a)(1), an offense punishable by imprisonment
for a term of not more than five (5) years,
and having been directed to appear before the District
Court of Arizona at Tucson, Arizona, on July
20, 1992, wilfully did fail to appear as required;
All in violation of Title 18 United States Code
Section 3146.
On March 3, 1998, the government filed a notice to appear
alleging that Renteria was subject to removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii)5 due to her violation of 18 U.S.C. § 3146.
The government claimed that a violation of § 3146 constituted
an aggravated felony for purposes of 8 U.S.C.
5 8 U.S.C. § 1227(a)(2)(A)(iii) states: "Any alien who is convicted of an
aggravated felony at any time after admission is deportable."
RENTERIA-MORALES v. MUKASEY 8399
§ 1101(a)(43)(T). Over Renteria's objections, the immigration
judge (IJ) agreed with the government's interpretation of
§ 1101(a)(43)(T) and pretermitted Renteria's application for
cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Renteria
appealed to the BIA, which affirmed the IJ's determination
without an opinion. Renteria timely filed a petition for review
to this court.
B
Rivera became a lawful permanent resident of the United
States in 1967. In 1973, she was indicted by a grand jury for
conspiracy to illegally import heroin, illegal importation of
heroin, conspiracy to possess a controlled substance with
intent to distribute, and possession of a controlled substance
with intent to distribute. Rivera pleaded not guilty and was
released on bail. While on bail, she fled the United States. The
government filed a second indictment charging Rivera with
violation of 18 U.S.C. § 31506 in August 1973. In 2004,
Rivera was arrested while crossing the border from Mexico
into the United States based on an outstanding warrant for
failure to appear. Rivera pleaded guilty to a violation of 18
U.S.C. § 3146, and the government dismissed the drug
charges. Rivera was sentenced to a $100.00 assessment and a
sentence of twelve months and one day.
In 2005, the government filed a notice to appear alleging
that Rivera was subject to removal on two grounds: (1) under
8 U.S.C. § 1182(a)(2)(A)(i)(I) for being an alien who committed
a crime of moral turpitude, and (2) under 8 U.S.C.
§ 1182(a)(2)(C), for being an alien who "the Attorney General
knows or has reason to believe . . . is or has been a knowing
aider, abettor, assister, conspirator, or colluder with others in
the illicit trafficking in any such controlled . . . substance." 8
6 18 U.S.C. § 3150 was repealed by the Bail Reform Act of 1984, Pub.
L. No. 98-473, 98 Stat. 1976 (1984). 18 U.S.C. § 3146 is the current bailjumping
statute.
8400 RENTERIA-MORALES v. MUKASEY
U.S.C. § 1182(a)(2)(C)(i). On November 14, 2005, Rivera
filed an application for cancellation of removal.
The IJ sustained the two charges of removability and pretermitted
and denied the application for cancellation of
removal on the ground that Rivera's conviction under 18
U.S.C. § 3146 qualified as an aggravated felony under 8
U.S.C. § 1101(a)(43)(S) as "an offense relating to obstruction
of justice." See 8 U.S.C. § 1229b(a)(3).
Rivera appealed to the BIA challenging only the denial of
her application for cancellation of removal. The BIA affirmed
the IJ in a reasoned opinion, agreeing "that the respondent
was convicted of an aggravated felony because the offense of
bail jumping falls within the definition of an obstruction of
justice crime under section 101(a)(43)(S) of the Immigration
and Nationality Act." Rivera timely filed a petition for review
to this court.
We have jurisdiction under 8 U.S.C. § 1252(a) to review
the legal question whether a conviction underlying an order of
removal or the denial of relief constitutes an aggravated felony.
See Li v. Ashcroft , 389 F.3d 892, 895 (9th Cir. 2004). If
the BIA conducted "an independent review . . . we review the
BIA's decision and not that of the IJ." Sinotes-Cruz v. Gonzales,
468 F.3d 1190, 1194 (9th Cir. 2006). However, where
the BIA summarily affirms the holding of the IJ without opinion,
we review the IJ's decision as the final agency determination.
See Falcon Carriche v. Ashcroft , 350 F.3d 845, 849 (9th
Cir. 2003).
II
[1] In analyzing Renteria's petition, we must determine
whether a conviction for failure to appear in court in violation
of 18 U.S.C. § 3146 constitutes an aggravated felony under 8
U.S.C. § 1101(a)(43)(T), which defines aggravated felony to
include certain offenses relating to a failure to appear. In ana-
RENTERIA-MORALES v. MUKASEY 8401
lyzing Rivera's petition, we must determine whether a conviction
for violating § 3146 constitutes an aggravated felony
under § 1101(a)(43)(S), which defines aggravated felony to
include certain offenses relating to obstruction of justice. If a
violation of § 3146 meets the definition set forth in
§ 1101(a)(43)(S) or (T), it counts as an aggravated felony for
purposes of making the alien removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). It will also count as an aggravated felony
for purposes of rendering an alien ineligible for cancellation
of removal pursuant to 8 U.S.C. § 1229b(a)(3).
To determine whether a conviction under § 3146 constitutes
an aggravated felony under § 1101(a)(43)(S) or (T), we
apply the categorical approach set forth in Taylor, 495 U.S.
575, to the Immigration and Nationality Act (INA). See
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir.
2006) (en banc). Using this approach, we determine what
Congress meant by "obstruction of justice" or "failure to
appear" in § 1101(a)(43)(S) and (T) respectively by discerning
the generic federal definition of these crimes. Because
§ 1101(a)(43) is part of the INA, we must defer to the BIA's
articulation of the generic federal definition "if the statute is
silent or ambiguous with respect to the specific issue before
the agency and the BIA's interpretation is 'based on a permissible
construction of the statute.' " Parrilla v. Gonzales, 414
F.3d 1038, 1041 (9th Cir. 2005) (quoting INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999)). We accord Chevron deference
where there is "binding agency precedent on-point
(either in the form of a regulation or a published BIA case)."
Kharana v. Gonzales , 487 F.3d 1280, 1283 n.4 (9th Cir.
2007); see Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-44 (1984).
After determining the elements of the generic crimes listed
in § 1101(a)(43) (S) and (T), the second step in the Taylor
analysis is to identify the elements of the specific crime of
conviction, in this case § 3146. We do not defer to the BIA's
interpretations of state law or provisions of the federal crimi-
8402 RENTERIA-MORALES v. MUKASEY
nal code. Parrilla, 414 F.3d at 1041. Rather, we review de
novo whether the specific crime of conviction meets the
INA's definition of an aggravated felony. Li, 389 F.3d at 895;
Randhawa v. Ashcroft , 298 F.3d 1148, 1151 (9th Cir. 2002).
If the elements of the specific crime of conviction are narrower
than or the same as the elements of the generic crime,
then the specific crime of conviction categorically counts as
an offense listed in § 1101(a)(43). See Fernandez-Ruiz, 466
F.3d at 1125.
If the elements of the specific crime of conviction are
broader than the elements of the generic crime listed in the
INA, we may "go beyond the mere fact of conviction" and
consider whether the petitioner was necessarily convicted of
all the elements of the generic crime. Taylor, 495 U.S. at 602.
In making this determination, the court is to "conduct a limited
examination of documents in the record of conviction."
Ferreira v. Ashcroft , 390 F.3d 1091, 1095 (9th Cir. 2004)
(internal quotation marks omitted). Where the defendant
pleaded guilty to the offense, the examination of the record is
"limited to the terms of the charging document, the terms of
a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial
record of this information." Shepard v. United States, 544
U.S. 13, 26 (2005). "If the record of conviction does not
establish that the offense the petitioner committed qualifies as
an aggravated felony, the government has not met its burden
of proving that the defendant committed an aggravated felony."
Ferreira , 390 F.3d at 1095.
Based on this framework, we will consider each appeal in
turn.
III
We first turn to Renteria's argument that her conviction for
failure to appear under 18 U.S.C. § 3146 does not constitute
an aggravated felony under 8 U.S.C. § 1101(a)(43)(T).
RENTERIA-MORALES v. MUKASEY 8403
[2] As noted above, our first step under Taylor is to determine
the elements of the generic federal crime. In this case,
the elements of the generic federal crime are clearly set out
in § 1101(a)(43)(T) itself. It includes any offense "relating to"
the following elements: (1) a failure to appear before a court;
(2) pursuant to a court order; (3) to answer to or dispose of
a charge of a felony; (4) which may be subject to a sentence
of two years' imprisonment or more. We have not found, nor
has the government cited, any precedential BIA decision providing
further interpretation of this generic federal crime.
We next turn to the specific crime of conviction to determine
whether the elements of § 3146 are narrower than or the
same as the elements of the generic crime, § 1101(a)(43)(T).
Section 3146 provides, in pertinent part:
(a) Offense.—Whoever, having been released under
this chapter knowingly—
(1) fails to appear before a court as required
by the conditions of release; or
(2) fails to surrender for service of sentence
pursuant to a court order;
shall be punished as provided in subsection (b) of
this section.
(b) Punishment.—(1) The punishment for an offense
under this section is—
(A) if the person was released in connection
with a charge of, or while awaiting sentence,
surrender for service of sentence, or
appeal or certiorari after conviction for—
(i) an offense punishable by death, life
imprisonment, or imprisonment for a
8404 RENTERIA-MORALES v. MUKASEY
term of 15 years or more, a fine under
this title or imprisonment for not more
than ten years, or both;
(ii) an offense punishable by imprisonment
for a term of five years or more, a
fine under this title or imprisonment for
not more than five years, or both;
(iii) any other felony, a fine under this
title or imprisonment for not more than
two years, or both; or
(iv) a misdemeanor, a fine under this title
or imprisonment for not more than one
year, or both; and
(B) if the person was released for appearance
as a material witness, a fine under this
chapter or imprisonment for not more than
one year, or both.
[3] Although § 3146 includes all the elements of the
generic crime, we conclude that the elements of § 3146 are
broader than the elements of § 1101(a)(43)(T). For example,
a necessary element of an offense included in
§ 1101(a)(43)(T) is that the defendant must have failed to
appear in connection with a felony for which a sentence of
two years' imprisonment or more could be imposed. However,
under § 3146, the defendant could have failed to appear
in connection with a misdemeanor, see 18 U.S.C.
§ 3146(b)(1)(A)(iv), or failed to appear as a material witness,
see § 3146(b)(1)(B). Therefore, a violation of § 3146 is not
categorically an aggravated felony for purposes of
§ 1101(a)(43)(T).
[4] We must therefore apply the modified categorical
approach to determine if the petitioner was necessarily con-
RENTERIA-MORALES v. MUKASEY 8405
victed of all the elements of § 1101(a)(43)(T). In making this
determination, we may review the judgment and the charging
document (the information) contained in Renteria's record of
conviction. See Shepard, 544 U.S. at 26; see also Ferreira,
390 F.3d at 1095. It is undisputed that these are the only documents
in Renteria's record that are cognizable for purposes of
our analysis. As noted above, the judgment states only that
Renteria pleaded guilty to violating "Title 18, United States
Code, Sections 3146, Bail Jumping, as charged in the Information
filed herein." The information provides that Renteria
was released "in connection with a charge of possession with
intent to distribute marijuana," an offense punishable by five
years' imprisonment, and "having been directed to appear
before the District Court of Arizona at Tucson, Arizona, on
July 20, 1992, wilfully did fail to appear as required."
According to Renteria, the record does not establish that
she was necessarily convicted of the second element of
§ 1101(a)(43)(T) (i.e., that she failed to appear before a court
"pursuant to a court order") or the third element (i.e., that she
failed to appear "to answer to or dispose of a charge of a felony").
7 First, Renteria notes that the information charges Renteria
with failure to appear as "directed," and does not
mention a court order. Renteria argues that § 3146(a)(1) (prohibiting
the failure to appear "as required by the conditions of
release") would allow the government to obtain a conviction
for violation of § 3146 without proving that the offender had
violated a court order. To support this interpretation, Renteria
notes that Congress chose to use the term "court order" in
§ 3146(a)(2) (prohibiting the failure to surrender for service
of sentence "pursuant to a court order"), but did not use that
term in § 3146(a)(1), which raises the inference that Congress
intended § 3146(a)(1) to be broader than § 3146(a)(2).
7 The record does establish that Renteria was necessarily convicted of
the first and fourth element of § 1101(a)(43)(T) (i.e., she failed to appear
before a court, and the underlying offense was punishable by a sentence
of two years' imprisonment or more). Renteria does not dispute this conclusion.
8406 RENTERIA-MORALES v. MUKASEY
Second, Renteria notes that the information does not establish
that she was convicted of a failure to appear "to answer
to or dispose of a charge," the third element of
§ 1101(a)(43)(T). Renteria argues that she could have been
convicted for failing to appear "for service of sentence," as
contemplated in § 3146(a)(2), or for failing to appear as a
material witness, as contemplated in § 3146(b)(1)(B).
The government contends that it is reasonable to infer from
the information and the statute of conviction that Renteria
failed to appear before a court "pursuant to a court order," and
failed to appear "to answer to or dispose of a charge of a felony."
With respect to the "court order" element, the government
asserts that only a judicial officer has authority to direct
Renteria to appear, and the judicial officer's direction would
be a court order. With respect to the second element, the government
notes that the information did not expressly allege
that Renteria's conviction was for failing to appear for service
of a sentence or as a material witness. From this silence, the
government argues, we can reasonably infer that Renteria's
conviction under § 3146 was to answer to or dispose of a
charge. The government concludes, therefore, that the record
does establish that Renteria was convicted of the second and
fourth elements of § 1101(a)(43)(T).
[5] Although the inferences suggested by the government
may be reasonable, the government has not established that
such inferences are necessary. On their face, the judicially
noticeable documents do not establish that Renteria was under
a court order or that she was ordered to appear to answer to
or dispose of a charge. The government has not established
that the phrase "having been directed to appear" in the information
necessarily means that a court had issued an order.
Nor has the government established that the phrase "released
. . . in connection with a charge" of a substantive crime necessarily
means that the person directed to appear was charged
with that crime, rather than being a material witness to that
crime.
RENTERIA-MORALES v. MUKASEY 8407
[6] The dissent points out that under 18 U.S.C. § 3142,
judicial officers have authority to order the release of pretrial
detainees, subject to certain conditions. The dissent reasons
that Renteria was probably subject to such a court order,
which would likely order her to appear before the court at the
appropriate time. Again, such inferences are reasonable, but
are not necessary. The record does not establish that Renteria
was a pretrial detainee released pursuant to § 3142, nor that
she was under a court order to make an appearance.
[7] Under the modified categorical approach, the government
must establish that the prior conviction necessarily
involved, and the allowable documents necessarily established,
facts equating to the generic crime. See Shepard, 544
U.S. at 24; see also Sandoval-Lua v. Gonzales, 499 F.3d
1121, 1131 (9th Cir. 2007) ("[T]he Supreme Court's holdings
in Taylor and Shepard . . . both stress that a predicate conviction
qualifies as a generic crime under the modified categorical
approach only if the record of conviction shows the jury
'necessarily' found all of the generic elements, or the defendant
'necessarily' admitted all of the generic elements in a
plea." (citations omitted)). Therefore, on the present record,
we cannot say with certainty that Renteria was convicted of
all the elements of § 1101(a)(46)(T). "If the record of conviction
does not establish that the offense the petitioner committed
qualifies as an aggravated felony, the government has not
met its burden of proving that the defendant committed an
aggravated felony." Ferreira, 390 F.3d at 1095. The government's
interpretation of the judgment and information are
inadequate to carry its burden of establishing that Renteria
was convicted of all the elements of the generic crime
described in § 1101(a)(46)(T). We therefore grant Renteria's
petition for review.
IV
[8] Next we consider Rivera's argument that her conviction
for failure to appear under 18 U.S.C. § 3146 does not consti-
8408 RENTERIA-MORALES v. MUKASEY
tute a conviction for "obstruction of justice" under 8 U.S.C.
§ 1101(a)(43)(S) as charged by the government. A conviction
constitutes an aggravated felony under § 1101(a)(43)(S) if it
is "an offense relating to obstruction of justice . . . for which
the term of imprisonment is at least one year."
[9] Following the categorical approach prescribed by Taylor,
we must first determine the generic definition of obstruction
of justice. See Taylor, 495 U.S. at 598-99. Unlike
§ 1101(a)(43)(T), § 1101(a)(43)(S) does not clearly set forth
the elements of the generic federal crime. Because the INA
does not define the phrase "offense relating to obstruction of
justice," we must determine whether there is any "binding
agency precedent on-point" which does define that phrase.
Kharana , 487 F.3d at 1283 n.4; see also Parrilla, 414 F.3d at
1041 (internal quotation marks omitted). As acknowledged by
the government and Rivera, the BIA has interpreted the elements
of a generic obstruction of justice offense under
§ 1101(a)(43)(S) in a precedential decision, In re Espinoza-
Gonzalez, 22 I. & N. Dec. 889 (BIA 1999). Based on its
review of the crimes listed in chapter 73 of title 18 of the U.S.
Code, entitled "Obstruction of Justice," and on the guidance
provided by the Supreme Court in United States v. Aguilar,
515 U.S. 593 (1995) (analyzing the elements of 18 U.S.C.
§ 1503), the BIA articulated both an actus reus and mens rea
element of the generic definition of such crimes for purposes
of § 1101(a)(43)(S). Espinoza-Gonzalez, 22 I. & N. Dec. at
892-93. First, the BIA held that obstruction of justice crimes
include "either active interference with proceedings of a tribunal
or investigation, or action or threat of action against those
who would cooperate in the process of justice." Id. at 893.
Second, the BIA held that such crimes include an intent element,
defined as a "specific intent to interfere with the process
of justice." Id.
In considering the BIA's construction of § 1101(a)(43)(S),
a statute it administers, we must comply with the principles
of deference articulated in Chevron and uphold the BIA's def-
RENTERIA-MORALES v. MUKASEY 8409
inition of "obstruction of justice" offenses if it " 'is based on
a permissible construction of the statute.' " Aguirre-Aguirre,
526 U.S. at 424 (quoting Chevron, 467 U.S. at 843). Here the
BIA acted reasonably in deriving the definition of "obstruction
of justice" for purposes of § 1101(a)(43)(S) from the
body of federal statutes imposing criminal penalties on
obstruction of justice offenses. See Parrilla, 414 F.3d at 1041.
Accordingly, in determining whether the specific crime of
conviction is an obstruction of justice offense for purposes of
§ 1101(a)(43)(S), we rely on the BIA's definition.8
We now turn to Rivera's specific crime of conviction. In
this case, the question is whether all the elements of § 3146,
namely, being released and knowingly failing to appear
before a court as required by the conditions of release or failing
to surrender for service of sentence pursuant to a court
order, are included in § 1101(a)(43)(S). See Taylor, 495 U.S.
at 599.
[10] First, § 3146 clearly includes the requisite actus reus,
an "active interference with proceedings of a tribunal or
investigation, or action or threat of action against those who
would cooperate in the process of justice," Espinoza-
Gonzalez, 22 I. & N. Dec. at 893. Failure to appear before a
court as required by the conditions of release, and failure to
obey a court order to surrender for service, both constitute
active interferenc |