FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO MALTA-ESPINOZA, 

No. 04-71140 Petitioner,

Agency No.

v.  A92-717-834

ALBERTO R. GONZALES, Attorney ORDER AND General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 15, 2005—San Francisco, California

Filed March 2, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

William C. Canby, Jr., Circuit Judge, and

Kevin Thomas Duffy,* District Judge.

Opinion by Judge Canby;

Dissent by Judge Duffy

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation. 

2387
COUNSEL

Lory D. Rosenberg, IDEA Immigration Defense & Expert

Assistance Consultation, Darnestown, Maryland, 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, California, for the amicus curiae. 

ORDER

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985, is withdrawn and is replaced by an opinion and dissent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. 

The petition for rehearing en banc is dismissed as moot.

OPINION

CANBY, Circuit Judge: 

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.

2390 MALTA-ESPINOZA v. GONZALES
§ 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 discretionary cancellation of removal.

8 U.S.C. § 1229b(a)(3). 

[1] 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:

1The 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). 

MALTA-ESPINOZA v. GONZALES 2391
(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 § 646.9.2 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. Borelli, 77 Cal.

App. 4th 703, 719-20 (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). 

2The 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. 

2392 MALTA-ESPINOZA v. GONZALES
[2] The BIA next stated that the California statute prohibited following or harassing another person, and that MaltaEspinoza’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 MaltaEspinoza 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.3 This fact need not affect our

3The 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 (1943).

MALTA-ESPINOZA v. GONZALES 2393
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 1189.4

 On this record, MaltaEspinoza 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).5

 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. 

4Because 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. 

5The 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. 

2394 MALTA-ESPINOZA v. GONZALES
[3] 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 (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

(1999). The bare complaint and plea of guilty in MaltaEspinoza’s case therefore establishes categorically no more

than the possibility that Malta-Espinoza engaged in such longdistance 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 (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

MALTA-ESPINOZA v. GONZALES 2395
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 MaltaEspinoza’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 (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. 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,

No. 04-10169, 2006 WL 3821413, *2-3 (9th Cir. Dec. 29,

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

[4] On the basis of the charging document and MaltaEspinoza’s bare plea of guilty, which are the only relevant

2396 MALTA-ESPINOZA v. GONZALES
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-Espinoza 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.

DUFFY, District Judge, dissenting: 

The majority has reconsidered its earlier decision and holds

that the record before us does not establish that MaltaEspinoza 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:

MALTA-ESPINOZA v. GONZALES 2397
Maliciously and repeatedly follow[ed] and harass-

[ed] ALMA ESPISITO, and made a credible threat

with the intent that she be placed in reasonable fear

for her safety and the safety of her immediate family.

(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 contained therein. They have in effect substituted

their own findings of fact for those set forth in the record. 

Defendants do not plead guilty to more than they must. It

goes against well-established precedent to hold that a plea of

guilty is not an admission to all of the facts contained in the

charge. See United States v. Harris, 108 F.3d 1107, 1109 (9th

Cir. 1997) (citing United States v. Mathews, 833 F.2d 161,

164 (9th Cir. 1987)(“a guilty plea conclusively proves the factual allegations contained in the indictment”)); see also

United States v. Velasco-Medina, 305 F.3d 839, 851-53 (9th

Cir. 2002)(holding an Abstract of the Judgment and the charging papers, considered together, were sufficient to prove the

facts alleged). The majority holds that this is not the case

when the charge is phrased conjunctively. The authority the

majority cites, however, is clearly distinguishable. The majority relies on United States v. Bonanno, 852 F.2d 434, 441 (9th

Cir. 1988), which holds that 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 a jury’s finding of

proof of any one of those acts is sufficient to find guilt. This

is different than a guilty plea, which is an “admission that [the

defendant] committed the crime charged against him.” United

States v. Broce, 488 U.S. 563, 570 (1989)(citations omitted).

2398 MALTA-ESPINOZA v. GONZALES
By entering a plea of guilty, the accused is stating that he did

the discrete acts described in the indictment and is admitting

guilt of a substantive crime. See id. Because of the clear difference and its import, I cannot agree with the majority.1

It is then necessary to determine if stalking by maliciously

and repeatedly following and harassing a person, and making

a credible threat with the intent that the person be placed in

reasonable fear for her safety and the safety of her immediate

family while a prior restraining order prohibiting such conduct is a crime of violence under 18 U.S.C. § 16(b).2

Subsection 16(b) defines a crime of violence as: 

(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. 

18 U.S.C. § 16(b)(emphasis added). The majority’s analysis

considers both the categorical and modified categorical

approach. While the parties have agreed that stalking is not a

1The Board of Immigrations Appeals (the “BIA”) examined the record

of conviction and found that Malta-Espinoza was harassing Ms. Espisito,

rather than following her. (Record on Appeal at 8.) The BIA did not identify the basis for its finding of fact. It may have reached this conclusion

based on police reports presented to the immigration judge. Those police

reports are not a part of this Court’s consideration. This is of no consequence. The BIA’s finding does not change this analysis. Surely, if MaltaEspinoza’s harassing conduct alone was sufficient to convince the BIA of

the risk violence, the BIA’s acknowledgment of his admission to following Ms. Espisito could only have supported its ultimate conclusion. 

2Subsection 16(a) of Title 18 of the United States Code is not relevant

to this case. It states: 

The term “crime of violence” means— 

(a) an offense that has an element the use, attempted use, or

threatened use of physical force against the person or property of

another . . . . 

MALTA-ESPINOZA v. GONZALES 2399
crime of violence under the categorical approach, consideration of that approach is instructive when applying the modified categorical approach—particularly in light of the logic set

forth in United States v. Becker, 919 F.2d 568, 573 (9th Cir.

1990) (holding residential burglaries are categorically crimes

of violence because “[t]he confluence of common sense and

precedent lead to the conclusion that the unauthorized daytime entry of the dwelling of another with the intent to commit a larceny or any felony carries with it a substantial risk

that force will be used against the person or property of another”). 

In Becker, and the cases that follow it, this Circuit rightly

considered the “substantial risk” requirement set forth in

§ 16(b). The Becker court did not require an absolute certainty

of physical force, as the majority seems to require here. Even

though physical force is not a necessary element of residential

burglary, “[a]ny time a burglar enters a dwelling . . . 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 . . . .” Becker, 919 F.2d at 571; see also

United States v. M.C.E., 232 F.3d 1252, 1255-56 (9th Cir.

2000) (holding that under the categorical approach residential

burglary is a crime of violence because of the risk of a violent

confrontation). 

The majority notes that stalking can occur at a distance and

implies that in those instances there is a small risk of physical

force being used against the victim. The same is true of burglary. A burglar may enter an empty dwelling while its inhabitants are traveling far from home. In fact, it is generally the

intention of most burglars to enter undetected and remove

valuables without ever facing the occupants of the dwelling.

Stalking is a far more personal crime. The stalker often seeks

a sense of power or control over his victim, usually through

fear. See National Institute of Justice and Centers for Disease

Control and Prevention, Stalking in America: Findings From

the National Violence Against Women Survey, Research in

2400 MALTA-ESPINOZA v. GONZALES
Brief (April 1998) at 8; see also U.S. Dep’t of Justice, Stalking and Domestic Violence, Report to Congress (May 2001)

at 22 (stating, generally, the motive for stalking is not necessarily sexual; stalkers are motivated by anger or hostility

towards the victim and a desire to control the victim). And,

because stalking, by definition, requires repeated victimization, it is intuitive that there is an increased opportunity for

violence. 

Research on stalking has found that violence against a person occurs in 30-50% of stalking cases. See Barry Rosenfeld,

Violence Risk Factors in Stalking and Obsessional Harassment, 31 CRIMINAL JUSTICE AND BEHAVIOR 9, 31 (2004) (performing a meta-analysis of eight leading studies of stalking).

It is likely these figures actually underestimate the rate of violence associated with stalking because cases in which stalking

has turned violent are often identified solely by the more serious crime such as homicide, rape or assault. See id. at 11. The

National Center for Victims of Crime reports that “46% of

stalking victims experience one or more violent incidents by

the stalker.” National Center for Victims of Crime Stalking

Resource Center, Stalking Fact Sheet, http://www.ncvc.org/

src/AGP.Net/Components/DocumentViewer/Download.

aspxnz?DocumentID=40616 (last visited Jan. 26, 2006). In

addition to physically harming the victim, research has indicated that approximately 29% of stalkers vandalize the victim’s property, and 9% of stalkers kill or threaten to kill the

victim’s family pets. See U.S. Dep’t of Justice, Stalking and

Domestic Violence, Report to Congress (May 2001) at 22. 

In California, the existence of a credible threat—whether

direct or implied through conduct—is an element of the crime

of stalking. See Cal. Penal Code § 646.9(a). Studies have confirmed that there is a positive association between the existence of such threats and a stalker’s eventual use of violence.

See Rosenfeld supra at 14-17. An analysis of six leading

studies on stalking has shown the making of threats to be the

second best indicator of a stalker’s potential to use violence

MALTA-ESPINOZA v. GONZALES 2401
in the future. See id. at 29-30. Because California does not

recognize individuals who are obsessive followers and harassers to be stalkers unless they make credible threats, persons

who meet the statutory definition presumably already present

a greater risk of violence. As in this case, restraining orders

are often not an effective deterrent; 69% of women said the

stalker violated a restraining order. See National Center for

Victims of Crime Stalking Resource Center, Stalking Fact

Sheet, supra at 1. 

The majority relies on the recent en banc decision,

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.

2006)(en banc). This reliance is misplaced. Fernandez-Ruiz

holds that the reckless use of force is not sufficient to support

a finding of the commission of a crime of violence under 18

U.S.C. § 16(a). The opinion expressly declined to consider

§ 16(b), which is the only section of the statute at issue in this

case. See id. at 1125 n.6 (“Additionally, we need not consider

18 U.S.C. § 16(b) because Fernandez-Ruiz’s assault convictions were both misdemeanors.”). 

Malta-Espinoza pleaded guilty to repeatedly following and

harassing Ms. Espisito despite the existence of a restraining

order. He pleaded guilty to making a credible threat with the

intent to put her in fear for her safety and the safety of her

immediate family. The majority somehow reaches the conclusion that they are unable to determine whether this created a

substantial risk of physical force against Ms. Espisito or her

property. They rest their conclusion on the “possibility that

Malta-Espinoza engaged in . . . long-distance harassing.” I

cannot agree. The judicially noticeable documents show that,

by repeatedly “following and harassing” Ms. Espisito, MaltaEspinoza was, to some degree, in physical proximity to her.

Moreover, it is not without sad irony that I note the lack of

physical proximity of a stalker to his victim is not a reliable

indicator of the risk of violence. California’s stalking laws are

rooted in the case of a man who became obsessed with a

young actress living hundreds of miles away. He sent her

2402 MALTA-ESPINOZA v. GONZALES
items through the mail until one day he traveled to her home,

shot and killed her on her front step. See Gina Piccalo, The

Safety Zone; Stalker’s Prey Tells of Terror; Cases like News

Anchor Kelly Mack’s Show Police, Judges and Law Makers

are Taking the Crime of Stalking More Seriously, L.A. Times,

Dec. 4, 2000, at B6 (describing the stalking and murder of 21-

year-old actress Rebecca Schaeffer, the co-star of the sitcom

“My Sister Sam”). 

I respectfully dissent. 

MALTA-ESPINOZA v. GONZALES 2403