Fernando Malta-Espinoza v. Alberto R. Gonzales, Attorney General

478 F.3d 1080 Fernando MALTA-ESPINOZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 04-71140. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 15, 2005. Filed March 2, 2007. Lory D. Rosenberg, IDEA Immigration Defense & Expert, Assistance Consultation, Darnestown, MD, for the petitioner. William C. Erb, Jr., Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent. Paul C. Workman, Holland & Knight, Los Angeles, CA, for the amicus curiae. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ata-vbz-aen. Before MARY M. SCHROEDER, Chief Circuit Judge, WILLIAM C. CANBY, JR., Circuit Judge, and KEVIN THOMAS DUFFY, * District Judge. ORDER AND OPINION CANBY, Circuit Judge. ORDER 1 The petition for panel rehearing is GRANTED. The memorandum disposition filed on June 30, 2005, 137 Fed.Appx. 985 , is withdrawn and is replaced by an opinion and dissent filed contemporaneously with this order. 2 The petition for rehearing en banc is dismissed as moot. OPINION 3 Fernando Malta-Espinoza, a native and citizen of Mexico who is a permanent resident of the…

ORDER AND OPINION

ORDER

The petition for panel rehearing is GRANTED. The memorandum disposition filed on June 30, 2005, 137 FedAppx. 985, is withdrawn and is replaced by an opinion and dissent filed contemporaneously with this order.

The petition for rehearing en banc is dismissed as moot.

OPINION

Fernando Malta-Espinoza, a native and citizen of Mexico who is a permanent resident of the United States, petitions for review of an order of the Board of Immigration Appeals (“BIA”) holding that Malta-Espinoza’s state-law conviction for stalking rendered him removable under 8 U.S.C. § 1227 (a)(2)(A)(iii), as an alien convicted of an aggravated felony. Reviewing de novo, Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 939 (9th Cir.2004), we grant the petition for review, reverse the decision of the BIA, and remand for further proceedings.

DISCUSSION

Malta-Espinoza is removable if stalking, as defined by California Penal Code § 646.9, qualifies as an aggravated felony by reason of being a “crime of violence.” 8 U.S.C. §§ 1227 (a) (2) (A) (iii), 1101(a)(43)(F). 1 In addition, if Malta-Espinoza’s conviction qualifies as an aggravated felony, it renders him statutorily ineligible for…

dissenting:

The majority has reconsidered its earlier decision and holds that the record before us does not establish that Malta-Espinoza pleaded guilty to conduct constituting a crime of violence, as defined by 18 U.S.C. § 16 , when he pleaded guilty to stalking his female victim, Ms. Alma Espisito. In so holding, the majority has essentially decided that courts cannot rely on the words of a defendant’s guilty plea to mean exactly what they say. I respectfully dissent.

The Amended Felony Complaint against Malta-Espinoza charged, among of other things, that while under a prior restraining order prohibiting such conduct, Malta-Espinoza:

(Record on Appeal at 126)(emphasis added). This was the only count in the Amended Felony Complaint to which Malta-Espinoza pleaded guilty. The other counts were dismissed pursuant to his plea deal with the Government. An Abstract of the Judgment reflects the terms of his guilty plea. The majority holds that these documents, considered together, are not enough to establish that Malta-Espinoza both followed and harassed Ms. Espisito. Instead, they have found that when a defendant pleads guilty to a count he does not actually admit to the facts…