BIA Holds That Conviction For Stalking Under California Penal Code §646.9 Is Not “A Crime Of Stalking” Per INA §237(A)(2)(E)(i), Overruling Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012).

On April 20, 2018, the Board of Immigrations (BIA or Board), in yet another lengthy and densely-reasoned decision, ruling on remand from the Ninth Circuit Court Of Appeals, sustained a respondent’s appeal and terminated removal proceedings over a dissenting opinion.  Respondent had been convicted under California Penal Code (CPC) §646.9 of stalking and placed into removal proceedings by DHS, charged as deportable per INA §237(A)(2)(E)(i). The Immigration Judge (IJ) found respondent removable, a holding upheld by the BIA in a published decision, Matter Of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), which specifically ruled that a conviction under §646.9 qualifies as a “crime of stalking” per the INA.

On initial remand from the Ninth Circuit (based on DHS’ unopposed motion), the Board upheld its previous decision; a second remand (following a second DHS motion) resulted in the instant reconsideration of the prior precedent.  On remand, respondent contended that his §646.9 conviction did not qualify as a stalking offense under the INA.

At the beginning of its analysis, the BIA noted that §237(A)(2)(E)(i) states that one is deportable if “at any time after admission” he or she is convicted of a “crime of stalking”, observing that the first Sanchez-Lopez decision defined “a crime of stalking” under the Act as an offense containing the following elements: 1) conduct engaged in on more than a single occasion 2) directed at a specific individual 3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death.  In its second unopposed remand motion, DHS had asked the Board to reconsider “whether there is a ‘realistic probability’ that California would apply section 646.9 to conduct committed with the intent ‘to cause and [which] causes a victim to fear safely in a non-physical cause’”. The BIA thus looked at U.S. Supreme Court jurisprudence, noting that to find that a state statute creates a crime outside the generic definition of the federal offense, there must be “a realistic probability, not a theoretical possibility” that the state would actually prosecute conduct that falls outside the generic definition.

Because no California case was found that could definitively settle whether there is a realistic probability §646.9 would be applied to a stalking offense committed with the intent to cause a victim to fear non-physical injury, the Board examined whether the language of the statute is “overly inclusive”.  On this point, because in 1994 the California Legislature had amended 646.9 to require a victim need only fear for his or her safety or that of his or her family, while deleting the requirement that the threat be against the life of, or threaten great bodily injury to, the victim, the Board concluded that the state had broadened the statute to encompass fear of a non-physical injury and therefore § 646.9’s text now “establishes that there is a ‘realistic probability’ that California would apply the statute to conduct falling outside the definition of the ‘crime of stalking’”.  As such, the appeal was sustained and proceedings ordered terminated.

In dissent, Board Member Malphrus expressed frustration with the majority’s refusal to define the generic definition of stalking to include the California statute at issue here.  He found that the generic definition used by the Board in the 2012 Sanchez-Lopez precedent decision was not substantially different from the “fear for one’s safety” standard incorporated by California, claiming that such a reasonable fear should be read into the generic definition of stalking found at §237(A)(2)(E)(i).  The dissenting opinion concluded by noting that this case illustrates the limitations of the categorical approach as now imposed by U.S. Supreme Court jurisprudence citing to (Descamps and Mathis) which now prevents those convicted of stalking from being removed, a result not intended by Congress.

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