Fernando MALTA-ESPINOZA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 478 F.3d 1080

ORDER AND OPINION CANBY, Circuit Judge. 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 The memorandum disposition filed on June 30, 2005, 137 FedAppx. 985, is withdrawn and is replaced by an opinion and dissent filed contemporaneously with this order.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). In addition, if Malta-Espinoza’s conviction qualifies as an aggravated felony, it renders him statutorily ineligible for discretionary cancellation of removal. 8 U.S.C. § 1229b(a)(3). The Immigration Act, 8 U.S.C. § 1101(43)(F), defines “aggravated felony” to include “crimes of violence” as defined in 18 U.S.C. § 16, which provides: The term “crime of violence” means— (

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. At the time of Malta-Espinoza’s offense, the California statute that he was convicted of violating provided in pertinent part: (

a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking.... Cal.Penal Code § 646.9. The issue, then, is whether this crime falls within the definition of “crime of violence” set forth in 18 U.S.C. § 16.

In determining that question, we first apply the categorical approach to determine whether the “full range of conduct” covered by the California statute falls within the meaning of “crime of violence.” See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). If it does not, we then proceed to a modified categorical approach in which we can conduct a “limited examination of documents in the record of conviction” to determine whether Malta-Espinoza was convicted of the necessary elements constituting a crime of violence.

See id. “We do not, however, look to the particular facts underlying the conviction.” Sareang Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000). The BIA took note of our decision in United States v. Jones, 231 F.3d 508 (9th Cir.2000), which held that, for purposes of the federal Sentencing Guidelines, a conviction for violation of the California stalking statute was not a crime of violence by reason of its element of threat, because under California law the requisite threat to safety did not mean only physical safety. Id. at 519-20 (citing People v. Borrelli, 77 Cal.App.4th 703, 719-20, 91 Cal.Rptr.2d 851 (2000)).

The BIA accordingly declined to apply 18 U.S.C. § 16(

a) to the California stalking statute and focused instead on the question of “substantial risk” under § 16(b). The BIA next stated that the California statute prohibited following or harassing another person, and that Malta-Espinoza’s conviction was for harassing, not following. It is not clear what evidence led the BIA to that conclusion. The administrative record contains only the felony complaint and the entry of conviction on a plea of guilty.

The felony complaint on the stalking charge alleged that Malta-Espinoza “did maliciously and repeatedly follow and harass Alma Esposito, and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her family.” Nothing in these minimal documents indicates whether Malta-Espinoza was guilty of following or harassing or both. Although the complaint alleged following and harassing conjunctively, the statute proscribes following or harassing. Cal.Penal Code § 646.9(a).

It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts. See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) (“Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.”).

All that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both. This fact need not affect our analysis, however, because under a categorical approach we must determine whether the “full range of conduct” covered by the statute falls within the definition of “crime of violence.” See Chang, 307 F.3d at 1189. On this record, Malta-Espinoza may have been guilty of harassing only, as the BIA assumed. If his conviction for harassing does not qualify as a crime of violence, the BIA’s decision cannot stand.

We therefore turn to that question. The BIA concluded that the conviction for harassing met the definition of 18 U.S.C. § 16(

b) as involving “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The BIA reasoned that this risk existed because the California statute requires that the harassment be accompanied by a “credible threat with intent to place that person in reasonable fear for his or her safety,” § 646.9(a), through a course of conduct that “seriously alarms, annoys, torments, or terrorizes the person” and “would cause a reasonable person to suffer substantial emotional distress.” § 646.9(e).

Such a combination, the BIA held, creates a “substantial risk that physical force may be used, at least recklessly, over the duration of the commission of the crime.” We conclude that this formulation is an incorrect application of the categorical or modified categorical approach to the determination of a crime of violence. It also runs afoul of our recent en banc decision in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.2006) (en banc), of which the BIA did not have the benefit at the time it decided.

Harassing can involve conduct of which it is impossible to say that there is a substantial risk of applying physical force to the person or property of another, as § 16(

b) requires. It is true that the California stalking statute requires a credible threat, but “[i]t is not necessary to prove that the defendant had the intent to actually carry out the threat,” and even “present incarceration of a person making the threat shall not be a bar to prosecution.” § 646.9(g). Stalking under California law may be conducted entirely by sending letters and pictures. People v. Falck, 52 Cal.App.4th 287, 297-98, 60 Cal.Rptr.2d 624 (1997). Indeed, a stalking conviction has been upheld even though the victim was out of the country at the time that the harassing conduct occurred. People v.

Norman, 75 Cal.App.4th 1234, 1240-41, 89 Cal.Rptr.2d 806 (1999). The bare complaint and plea of guilty in Malta-Espinoza’s case therefore establishes categorically no more than the possibility that Malta-Espinoza engaged in such long-distance harassing, which created no substantial risk of application of physical force against his victim or her property. See Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (under modified categorical approach, a sentencing court can consider only facts that are necessarily admitted in the plea); United States v.

Wenner, 351 F.3d 969, 974 (9th Cir.2003) (under modified categorical approach, an information alone cannot determine the elements of a conviction). On this record, therefore, the government has not sustained its burden of establishing that Malta-Espinoza was convicted of a crime of violence. See United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir.2004) (under modified categorical approach, the government must establish clearly and unequivocally that the conviction was based on all of the elements of a qualifying offense).

The fact that harassing may include conduct carried on only at a long distance from the victim differentiates stalking from the example of burglary, upon which the BIA relied. “Any time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal purpose or to escape apprehension.” United States v. Becker, 919 F.2d 568, 571 (9th Cir.1990). Harassment by mail or telephone simply does not carry the same substantial risk.

It is true that the California statute at the time of Malta-Espinoza’s offense required that the accompanying threat cause “substantial emotional distress” to the victim, but emotional distress is not the equivalent of the use of physical force against the victim, which is the substantial risk required by § 16(b). Moreover, mere harm to the victim is not sufficient under § 16(b); the statute requires use of force against the victim in the course of committing the crime. See Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (stating that risk referred to in § 16(

b) is not merely “the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime.”). Finally, we note that the BIA found that the substantial risk that inhered in a violation of California’s stalking statute was a substantial risk that physical force against the person or property of another will be used “at least recklessly.” The Supreme Court in Leocal (which was decided after the BIA’s decision) left open the question whether force used recklessly qualified for a crime of violence under § 16(b).

Id. at 13, 125 S.Ct. 377. In a recent en banc decision, however, our court has ruled that reckless use of force is not sufficient to support a finding of commission of a crime of violence within the meaning of § 16(b). Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th Cir.2006) (en banc); see also United States v. Nobriga, 474 F.3d 561 (9th Cir.2006)(holding that plea of guilty to physical abuse of family member did not establish conviction for crime of violence when physical abuse may be committed by recklessness). For this reason, as well, the decision of the BIA cannot stand.

CONCLUSION On the basis of the charging document and Malta-Espinoza’s bare plea of guilty, which are the only relevant documents in the administrative record, we conclude that Malta-Espinoza’s conviction for stalking under Cal.Penal Code § 646.9(

a) does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16(b). The BIA accordingly erred in ruling that Malta-E spinoza was removable on that ground. The Immigration Judge held that Malta-Espinoza was also removable under 8 U.S.C. § 1227(a)(2)(E), which specifically makes a conviction for stalking a ground of removal. The BIA did not reach that issue, and neither do we.

Our conclusion that Malta-Espinoza’s conviction for stalking does not qualify as an aggravated felony, however, necessarily invalidates the ruling of the Immigration Judge that Malta-Espinoza is statutorily ineligible for cancellation of removal. Further proceedings are therefore necessary in that regard as well. The petition for review is granted. We reverse the decision of the BIA and remand for further proceedings consistent with this opinion. PETITION FOR REVIEW GRANTED; REVERSED; CASE REMANDED. . The Immigration Judge also found that Malta-Espinoza was removable under 8 U.S.C. § 1227(a)(2)(

E) by reason of his conviction for stalking. The BIA did not reach that question on appeal, and relied only on the ground that Malta-Espinoza’s conviction was for a crime of violence, qualifying as an aggravated felony under § 1227(a)(2)(A)(iii). . The California statute also provided that, if the stalking was done in violation of a restraining order, the penalty was imprisonment for two, three, or four years. Cal.Penal Code § 646.9(b). Malta-Espinoza was charged under this enhancing section. .

The dissent argues that Malta-Espinoza's plea admitted both harassing and following by pleading guilty to the charge that alleged both alternative elements conjunctively. But a plea of guilty admits only the elements of the charge necessary for a conviction. See United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir.1997). All that was necessary for conviction was that Malta-Espinoza either harassed or followed (with the necessary intent, threat and effect on the victim). His plea of guilty should not establish more than would have been established by a jury verdict of guilty on the charge. See id.

We also note that the BIA affirmed on the theory that Malta-Espinoza's conviction was for harassing, not following. We cannot uphold the decision of the BIA, an administrative agency, on a theory other than the one upon which it relied. See SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943). . Because the “full range of conduct” proscribed by the statute must meet the test of violent crime, it is not sufficient that stalking often results in violence, as the statistics cited by the dissent indicate.

If some stalking crimes include no substantial risk of violence, the test described by Chang is not met. . The requirement of emotional distress was removed by the 2002 amendments to § 646.9, but was in effect at the time of Malta-Espinoza’s offense.