Category Archives: California Penal Code

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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BIA Holds That The Offense Of Attempted Voluntary Manslaughter Under California Penal Code Sections 192(A) And 664, Which Requires The Specific Intent To Cause Another Person’s Death, Is Categorically An Aggravated Felony Crime Of Violence Per INA § 101(A)(43)(F), Despite The Fact That The Completed Offense Of Voluntary Manslaughter Itself Is Not Such An Aggravated Felony.

On March 15, 2018 the Board of Immigration Appeals (BIA or Board), sustained the appeal of a decision of the Immigration Judge (IJ) terminating removal proceedings on the ground that the respondent is not deportable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.  Respondent had been convicted of both voluntary manslaughter in violation of California Penal Code (CPC) section 192(a) and attempted voluntary manslaughter under CPC sections 192(a) and 664. The initial Notice to Appear (NTA) charged him with removability under INA § 237(a)(2)(A)(iii) on the basis of her CPC section 192(a) conviction, claiming that offense constitutes an aggravated felony per INA § 101(a)(43)(F).  

However, as the Board explained, “DHS subsequently conceded that voluntary manslaughter under California law is not a crime of violence and lodged an additional charge that the respondent’s conviction for attempted voluntary manslaughter in violation of sections 192(a) and 664 is a conviction for a crime of violence (COV) under sections 101(a)(43)(F) and an attempt to commit an aggravated felony under section 101(a)(43)(U).”

The IJ found section 192(a) indivisible and overbroad relative to 101(a)(43)(F), concluding that attempted manslaughter is not an aggravated felony COV or an attempt offense under 101(a)(43)(U), that respondent was therefore not removable as charged, and terminated proceedings.  On appeal, DHS contended that a conviction under 192(a) and 664 is an aggravated felony COV, even if the completed offense of voluntary manslaughter under § 192(a) is not.

The BIA began its analysis by stating that in determining whether one is removable under § 237(a)(2)(A)(iii), it uses the categorical approach, focusing on the elements of the crime, not the case’ s particular facts; this approach asks whether the state statute of conviction fits within the generic federal definition of a corresponding aggravated felony.  As a result, the Board must compare the elements of CPC 192(a) and 664 with the Federal generic definition of a COV found at § 101(a)(43)(F). If the elements of the state crime are the same or narrower than those of the Federal offense, noted the opinion, “the state crime is a categorical match and every conviction under that statute qualifies as an aggravated felony.”

In finding that California manslaughter is not a categorical COV, the IJ relied on a Ninth Circuit case, Quijado-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), which held that because one may be convicted under section 192(a) for reckless conduct, a conviction is not a categorical COV under the applicable Federal law, 18 U.S.C. § 16(a), which requires the intentional use of force.

The BIA then found that section 192(a) is not a categorical COV “because it encompasses both intentional and reckless acts”, but concluded that the offense of attempted voluntary manslaughter under the CPC “is not similarly overboard relative to § 16(a)”.  In fact, one who violates sections 192(a) and 664 must act with “the specific intent to kill another person.” The Board thus held that, unlike voluntary manslaughter, the attempted crime under sections 192(a) and 664 requires a specific intent to kill, necessarily involving the volitional “use” of force required by § 16(a).

Finally, held the decision, although counterintuitive, respondent’s conviction for attempted voluntary manslaughter under 192(a) and 664 is categorically a COV under § 16(a), under the completed crime of a voluntary manslaughter, which encompasses reckless conduct and is therefore not a categorical COV under Ninth Circuit law.  The appeal was sustained, the IJ’s decision vacated and removal proceedings reinstated with the record remanded to the Immigration Court. Matter of Cervantez Nunez, 27 I&N Dec.238 (BIA 2018).

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