PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 19-1848 & 19-2904

______________

VAMSIDHAR VURIMINDI,

 Petitioner

v.

ATTORNEY GENERAL 

UNITED STATES OF AMERICA 

______________

On Petition for Review of a Decision

of the Board of Immigration Appeals

(Agency No. A096-689-764)

Immigration Judge: Walter A. Durling

______________

Argued: October 27, 2021

______________

Before: GREENAWAY, JR., KRAUSE, and PHIPPS, 

Circuit Judges.

(Opinion Filed: August 24, 2022)
2

Rachel A.H. Horton [ARGUED]

Courtney G. Saleski 

DLA Piper

1650 Market Street

One Liberty Place, Suite 5000

Philadelphia, PA 19103

Counsel for Petitioner

Victoria M. Braga [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_____________

OPINION

______________

KRAUSE, Circuit Judge.

We are called on here to decide whether Pennsylvania’s 

stalking statute, 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1), 

constitutes a removable offense under the Immigration and 

Nationality Act, or, applying the so-called “categorical 

approach,” whether the elements of the Pennsylvania offense

are a categorical match to the elements of the generic “crime 

of stalking” for which a noncitizen is removable under 8 U.S.C. 

§ 1227(a)(2)(E)(i). Because the Board of Immigration Appeals 
3

mistakenly found that Petitioner Vamsidhar Vurimindi failed 

to raise this issue before the Immigration Judge and denied two 

motions for relief on that basis, we must also decide whether 

this question is one we may address in the first instance. We 

conclude that we can and that because the Pennsylvania 

stalking offense sweeps more broadly than the federal generic 

under the categorical approach, it is not a removable offense. 

Accordingly, we will grant Vurimindi’s consolidated Petitions

for Review.

I. Factual and Procedural Background

Vurimindi, a native of India, came to the United States 

on a work visa in 2000, and after marrying an American 

citizen, became a lawful permanent resident in 2008. JA 74. 

Vurimindi’s erratic behavior towards some of his neighbors 

eventually led to his arrest and conviction on two counts of 

misdemeanor stalking under Pennsylvania law. JA 74, 187, 

244, 420. In relevant part, the Pennsylvania stalking statute 

makes it a crime to: 

engage[] in a course of conduct or 

repeatedly commit[] acts toward 

another person . . . under 

circumstances which demonstrate 

either an intent to place such other 

person in reasonable fear of bodily 

injury or to cause substantial 

emotional distress to such other 

person[.]

18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1). Vurimindi was 

sentenced to two consecutive terms of fifteen to thirty months’ 
4

imprisonment followed by a period of supervised release. JA 

74, 187. 

In 2016, while Vurimindi was serving this sentence, the 

Government initiated removal proceedings against him under

8 U.S.C. § 1227(a)(2)(E)(i), which makes any noncitizen 

convicted of a “crime of stalking” removable from the United 

States. JA 72-74. But “crime of stalking” is not defined in the 

INA, so to ascertain whether Vurimindi’s Pennsylvania

conviction qualified under this removal provision, the IJ was 

required to apply the categorical approach, i.e., comparing the 

elements of the relevant state offense with the elements of the 

federal generic offense. See Descamps v. United States, 570 

U.S. 254, 257 (2013), JA 418-19. 

After comparing the elements of a crime of stalking 

under the INA to those of the Pennsylvania stalking statute, the 

IJ concluded that “[Vurimindi’s] conviction under the 

Pennsylvania statute is the prototypical case for stalking as set 

forth in [the] INA,” and that Vurimindi was removable on that 

basis. JA 419. Vurimindi appealed to the BIA, arguing that 

the IJ erred in finding him removable because his “conviction 

under 18 PA CSA § 2709.1 do[es]n’t constitute a crime of 

‘Stalking’ under INA § 237(a)(2)(E)(i).” JA 496; see JA 492-

96.1 

1 The IJ also rejected Vurimindi’s argument that his 

convictions were not final, reasoning that Vurimindi’s pending 

state case sought post-conviction relief and was not a direct 

appeal. JA 418. The BIA likewise rejected Vurimindi’s 

challenge to the finality of his conviction. JA 62–63. That

issue is not before us on appeal.
5

On appeal, the BIA issued three orders, the second and 

third of which are before us today. In the first order, the BIA 

mistakenly found that Vurimindi “does not contest his 

removability” and affirmed without addressing Vurimindi’s 

argument that his Pennsylvania conviction was not a 

categorical match with the generic offense under the INA. 

JA 63 n.4. But see JA 496 (raising challenge to removability 

on categorical approach grounds). In the second, the BIA 

denied Vurimindi’s motion to reopen, which it construed as a 

motion to reconsider the same categorical approach argument

that it had deemed “waived” in the first order and that it 

continued to assert had not been “raised earlier in the 

proceedings.” JA 68–69. Vurimindi then filed a motion for 

reconsideration of that order, which the BIA denied, stating 

that there was no “factual or legal error in our [prior] decision 

or any aspect of the respondent’s case that was overlooked.” 

JA 71. 

Currently before us are Vurimindi’s petitions for review 

of the second and third of these orders—the denials of his 

motion to reopen and motion for reconsideration. JA 11–13.

II. Jurisdiction and Standard of Review

The BIA had jurisdiction over Vurimindi’s appeal 

pursuant to 8 C.F.R. §§ 1003.1 and 1240.15, and over his 

motion to reconsider under 8 C.F.R. § 1003.2. This Court’s 

jurisdiction is governed by 8 U.S.C. § 1252, which provides 

for judicial review of final orders of removal. Our review of 

the purely legal question presented by this appeal is plenary. 

Moreno v. Att’y Gen., 887 F.3d 160, 163 (3d Cir. 2018).

We give deference to the BIA’s definition of a crime of 

stalking so long as it is “based on a permissible construction of 
6

the statute.” Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 

158 (3d Cir. 2018) (citation omitted)). But we do not afford 

deference to its categorical approach determination or its 

“parsing of the elements of the underlying [state] crime,” Mahn 

v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014), because that 

analysis is based on interpretation of state law, see Salmoran 

v. Att’y Gen., 909 F.3d 73, 77–78 (3d Cir. 2018). 

III. Discussion

On appeal, Vurimindi again urges that his Pennsylvania 

conviction is not a categorical match to the removable “crime 

of stalking” offense under the INA because the Pennsylvania 

statute is indivisible, with a single mens rea element that is 

satisfied by “either an intent to place [the victim] in reasonable 

fear of bodily injury or to cause substantial emotional distress 

to [the victim],” 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1), 

while the generic offense in the INA is limited to the intent to 

place the victim in “fear of bodily injury or death,” Matter of 

Sanchez-Lopez (“Sanchez-Lopez II”), 27 I. & N. Dec. 256, 258 

(BIA 2018) (construing 8 U.S.C. § 1227(a)(2)(E)(i)). For its 

part, the Government concedes that Vurimindi is not 

removable if the state statute is indivisible because that offense

would then sweep more broadly than the INA’s stalking 

offense. Oral Arg. Tr. 24:50–25:34; 45:42–59. It contends, 

however, that the state statute is properly considered divisible,

with two alternative mens rea elements, one of which—the 

“intent to place [the] victim in reasonable fear of bodily 

injury”—is a categorical match to § 1227(a)(2)(E)(i). 

Answering Br. 18.

So the merits of Vurimindi’s petitions come down to the 

divisibility of Section 2709.1(a)(1), but before we can address 

that issue, we must determine if we should remand for the BIA 
7

to consider that question in the first instance. That is because,

although the parties agree that the BIA erred in holding 

Vurimindi waived his challenge to removability, see 

Answering Br. 21–22, the BIA never addressed the merits of 

the IJ’s conclusion that the statutes were a categorical match, 

see JA 61–71. Thus, we must first determine whether remand 

is required before we can turn to the proper reading of the 

Pennsylvania statute and the proper application of the 

categorical approach.

A. Whether Remand to the BIA Is Required

When faced with an issue that the BIA has not yet 

addressed, we typically follow the Supreme Court’s instruction 

in INS v. Orlando Ventura to “remand a case to an agency for 

decision of a matter that statutes place primarily in agency 

hands.” 537 U.S. 12, 16 (2002) (per curiam). In that case, 

where the Ninth Circuit reversed the BIA’s denial of asylum 

based in part on de novo consideration of a changedcircumstances argument not addressed by the BIA, the 

Supreme Court held that failure to follow the ordinary remand 

rule violated “basic considerations” of administrative law: 

namely that, for a “decision of a matter that statutes place 

primarily in agency hands,” remand permits an agency to 

“bring its expertise to bear upon the matter; . . . evaluate the 

evidence; . . . make an initial determination; and, in doing so, 

[the agency] can, through informed discussion and analysis, 

help a court later determine whether its decision exceeds the 

leeway that the law provides.” Id. at 16–17. 

Since Ventura, however, we and other Courts of 

Appeals have identified a number of exceptions to the remand 

rule where such “basic considerations” of administrative law 

do not apply. In Jean-Louis v. Attorney General, for example, 
8

we declined to remand for the BIA to apply the categorical 

approach and simply applied it ourselves where the BIA had 

already utilized its expertise to define the mens rea required for 

the generic crime under the INA and the only remaining 

issue—application of the categorical approach—did not 

implicate the agency’s expertise or statutory domain. 582 F.3d 

462, 466–68 (3d Cir. 2009). More recently, in Singh v. 

Attorney General, we again declined to remand after 

concluding that the BIA erred in opting to apply the categorical 

approach instead of the modified categorical approach, and we 

applied the modified categorical approach ourselves, 

explaining that we would, in any event, be “review[ing] [the 

BIA’s determination] de novo as it implicates a purely legal 

question.” 839 F.3d 273, 282 (3d Cir. 2016) (quoting Restrepo 

v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010)). And the Ninth 

and Eleventh Circuits have taken a similar approach. See, e.g., 

Talamantes-Enriquez v. Att’y Gen., 12 F.4th 1340, 1348–49 

(11th Cir. 2021); Mandujano-Real v. Mukasey, 526 F.3d 585, 

588–89 (9th Cir. 2008).

What these cases teach is that remand to the BIA is not 

required and the Court of Appeals may address an issue in the 

first instance where: (1) it is purely legal; (2) it does not 

implicate the agency’s expertise; (3) review would be de novo; 

and (4) no fact-finding is necessary. In those circumstances, 

the agency’s decision would be nothing more than an “idle and 

useless formality,” rendering remand futile and unnecessary. 

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969).

Here, each of those criteria is satisfied. First, questions 

of divisibility and application of the categorical approach are 

purely legal questions. Singh, 839 F.3d at 282; see also Javier 

v. Att’y Gen., 826 F.3d 127, 130 (3d Cir. 2016); Jean-Louis, 

582 F.3d at 466. Second, these questions require no special 
9

agency expertise. As in Jean-Louis, the BIA has already 

exercised its expertise by identifying the mens rea for the 

“crime of stalking” in the INA, see Sanchez-Lopez II, 27 

I. & N. Dec. at 258, and the application of the categorical 

approach itself is not a question “that statutes place primarily 

in agency hands,” Jean-Louis, 582 F.3d at 469 (citation 

omitted); see Singh, 839 F.3d at 282. The only other issue, the 

divisibility of Section 2709.1(a)(1), is one of state law, and thus 

falls within our expertise, not the agency’s. See Salmoran, 909 

F.3d at 77 (“‘[W]e owe no deference to the BIA’s 

interpretation of a state criminal statute,’ which does not entail 

the BIA’s special expertise[.]” (quoting Javier, 826 F.3d at 

130)). Third, precisely because these are purely legal questions 

that do not implicate the agency’s expertise, we would review 

them de novo. Salmoran, 909 F.3d at 76; Singh, 839 F.3d at 

282. And finally, resolving these questions does not require 

the evaluation of any additional evidence because “all relevant 

evidence regarding the conviction ha[s] been presented to the 

BIA in earlier proceedings.” Fregozo v. Holder, 576 F.3d 

1030, 1039 (9th Cir. 2009); see also Ventura, 537 U.S. at 18.

Just as in Singh and Jean-Louis, remand under these 

circumstances “would be of no purpose and would lead to an 

unnecessary expenditure of time and resources,” MandujanoReal, 526 F.3d at 589, so we proceed to the merits of 

Vurimindi’s petitions. 

B. Whether the Statute Qualifies as a Removable 

Offense

To their credit, the parties here both recognize and 

acknowledge that Pennsylvania’s stalking statute is a 

removable offense if it is divisible, and it is not if it is 
10

indivisible.2 For those who may be unfamiliar with 

significance of the statute’s divisibility for our analysis, 

however, we briefly explain the modification to the categorical 

approach that the Supreme Court has authorized in the case of 

divisible statutes before turning to the dispositive issue in this 

case: whether Pennsylvania’s statute is, in fact, divisible. 

The Supreme Court has provided two approaches to 

analyzing whether a state conviction qualifies as removable 

under the INA. If the state offense is defined by a single set of 

elements, we apply the categorical approach, even where the 

statute provides different means by which one or more of those 

elements may be satisfied. See Rosa v. Att’y Gen., 950 F.3d 

67, 75 (3d Cir. 2020). Under the categorical approach, we 

compare the conduct covered by the elements of 

Pennsylvania’s stalking statute to conduct covered by the 

elements of a crime of stalking under the INA to determine “if 

[the] state statute’s elements define a crime identical to or 

narrower than the generic crime.” Larios v. Att’y Gen., 978 

F.3d 62, 67 (3d Cir. 2020) (citing Descamps, 570 U.S. at 261). 

2 Vurimindi concedes that if the Pennsylvania statute is 

divisible, the offense with the alternative mens rea of “intent 

to place [the victim] in reasonable fear of bodily injury” would 

be a removable offense. 18 Pa. Stat. and Cons. Stat. 

§ 2709.1(a)(1). Even then, however, Vurimindi claims his 

conviction was not for a removable offense because, under the 

modified categorical approach, the record would not show he 

was found guilty of stalking with that intent, as opposed to the 

non-removable alternative of intent to place the victim in fear 

of nonphysical injury. See Opening Br. 36–37. As we 

conclude the statute is indivisible, we need not address this 

argument.
11

We “focus[] on the underlying criminal statute rather than the 

alien’s specific act . . . to ascertain the least culpable conduct 

necessary to sustain a conviction under the statute.” Javier, 

826 F.3d at 130 (citations omitted). So if the state statute 

“covers more conduct” than the generic offense in the INA, 

then it is not a categorical match because it is “overbroad and 

does not match the generic offense.” Larios, 978 F.3d at 67.

If, on the other hand, the statute “list[s] elements in the 

alternative,” so that it “define[s] multiple crimes,” Mathis v. 

United States, 579 U.S. 500, 505 (2016), then the statute is 

“divisible” and we apply the modified categorical approach,

Hillocks v. Att’y Gen., 934 F.3d 332, 339 (3d Cir. 2019) 

(citation omitted).3 Under that approach, we first “determine 

which of the alternative elements was the actual basis for the 

underlying conviction,” Evanson v. Att’y Gen., 550 F.3d 284, 

291 (3d Cir. 2008),4and we then “compare that crime, as the 

3 As the Supreme Court has explained, elements are “the 

‘constituent parts’ of a crime’s legal definition—the things the 

‘prosecution must prove to sustain a conviction.’” Mathis, 579 

U.S. at 504 (quoting Elements of Crime, Black’s Law 

Dictionary 634 (10th ed. 2014)). 

4 Under the modified categorical approach, we consider 

“extra-statutory materials” to determine whether the 

conviction, for example, “was [for] the version of the crime in 

the [state] statute . . . corresponding to” a removable crime 

under the INA. Descamps, 570 U.S. at 262–63. Appropriate 

materials can include the “charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual 

finding by the trial judge to which the defendant assented,” but 
12

categorical approach commands, with the relevant generic 

offense,” Mathis, 579 U.S. at 506. 

The generic offense here, of course, is the “crime of 

stalking” under 8 U.S.C. § 1227(a)(2)(E)(i). Although the INA 

itself does not define the elements of that generic offense, see 

id., the BIA has done so, interpreting the term “crime of 

stalking,” to require proof of three elements: (1) that the 

defendant engaged in conduct more than once, (2) that he 

directed the conduct at a specific victim, and, importantly for 

our purposes, (3) that he acted with intent to cause the victim 

“fear of bodily injury or death.” Matter of Sanchez-Lopez

(“Sanchez-Lopez I”), 26 I. & N. Dec. 71, 74 (BIA 2012)

(emphasis added). And because the INA is a statute that the 

BIA is “charged with administering,” and the term “stalking” 

is not plain and unambiguous, we accord “deference [to] the 

BIA’s reasonable interpretation[].” De Leon-Ochoa v. Att’y 

Gen., 622 F.3d 341, 348 (3d Cir. 2010). 

Under that interpretation, however, a state statute that 

criminalized stalking with the intent to cause “fear [of] 

nonphysical injury” would be overbroad and would not support 

removal under the INA. Sanchez-Lopez II, 27 I. & N. Dec. at

260–61 (emphasis added); see also In re Shaban, 2018 WL 

3045823, at *2 (BIA May 1, 2018) (finding no categorical 

match with a state stalking statute criminalizing conduct other 

than with the intent to cause fear of physical injury). That 

brings us to the dilemma confronting the Government in this 

case. 

not “police reports or complaint applications.” Shepard v. 

United States, 544 U.S. 13, 16 (2005).
13

By its terms, the Pennsylvania’s statute matches the first 

two elements—the actus reus—of the federal generic offense, 

but as for mens rea, it criminalizes intent to cause nonphysical, 

as well as physical injury because it covers “circumstances 

which demonstrate either an intent to place [the victim] in 

reasonable fear of bodily injury or to cause substantial 

emotional distress to such [a] person.” 18 Pa. Stat. and Cons. 

Stat. § 2709.1(a)(1) (emphasis added). Thus, if “reasonable 

fear of bodily injury” and “substantial emotional distress” are 

simply two means to satisfy a single mens rea element, the 

categorical approach applies and the Pennsylvania statute is 

not a categorical match because Section 2709.1(a)(1) would

then “sweep[] more broadly” than stalking under the INA.

United States v. Scott, 14 F.4th 190, 197 (3d Cir. 2021); see 

also Larios, 978 F.3d at 67. If Section 2709.1(a)(1) is divisible, 

on the other hand, then the modified categorical approach 

applies and the first alternative mens rea—intent “to place . 

. . in reasonable fear of bodily injury”—is a categorical match. 

See Sanchez-Lopez II, 27 I. & N. Dec. at 258. For us, then, to 

divide or not to divide—that is the question. 

C. Whether Pennsylvania’s Statute Is Divisible

In determining whether Pennsylvania’s stalking statute 

is divisible, our first task is “to determine whether its listed 

items are elements or means.” Singh, 839 F.3d at 283 (quoting 

Mathis, 579 U.S. at 517). To distinguish between elements and 

means, we determine whether “the [text of the] statute is clear 

on its face” and examine whether there are “prior state court 

decisions definitively answering the question.” Rosa, 950 F.3d 

at 81 (citation omitted). If the statutory text and state court 

decisions are insufficiently clear, we “may look ‘to a limited 

class of documents (for example, the indictment, jury 

instructions, or plea agreement and colloquy).’” Id. (quoting 
14

Mathis, 579 U.S. at 505). But if those documents also do not 

“speak plainly,” then “the record will not be able to satisfy the 

‘demand for certainty’ required” to demonstrate that the 

“defendant was convicted of [the] generic offense.” Id. at 82 

(quoting Mathis, 579 U.S. at 519). We consider these 

authorities in order of priority.

1. Text and Structure of Section 

2709.1(a)(1)

We start with the text of Section 2709.1(a)(1), which 

provides in pertinent part that a person engages in the crime of 

stalking when they:

engage[] in a course of conduct or 

repeatedly commit[] acts toward 

another person, . . . under 

circumstances which demonstrate 

either an intent to place such other 

person in reasonable fear of bodily 

injury or to cause substantial 

emotional distress to such other 

person[.]

18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1). Parsing the text, a 

person only commits the crime when they act—i.e., “engage[]

in a course of conduct or repeatedly commit[] acts” that are 

directed “toward another person”5—in a certain manner—i.e., 

5 While Section 2709.1(a)(1) is also worded 

disjunctively as to actus reus, neither party argues that it is 

divisible as to this element and we need not consider whether 

“course of conduct” and “repeatedly commits acts” are 
15

“under circumstances which demonstrate” the statutorily 

enumerated intent. Id. And § 2709.1(a)(1) is worded 

disjunctively with respect to that intent, deploying the 

correlative conjunctives “either . . . or” to link the 

grammatically parallel infinitive phrases (1) “to place such 

other person in reasonable fear of bodily injury,” and (2) “to 

cause substantial emotional distress to such other person.” Id.

It is this disjunctive wording as to intent to which the 

Government points as textual evidence of divisibility. See 

generally Answering Br.; see also Oral Arg. Tr. 25:57–26:36. 

But that alone is not conclusive, for while disjunctives in 

statutes can provide “textual clue[s]” of divisibility, Hillocks, 

934 F.3d at 343, they are not dispositive because statutes that 

merely “enumerate[] various factual means of committing a 

single element” are not in fact divisible, Mathis, 579 U.S. at 

506. And here, other textual clues indicate that § 2709.1(a)(1) 

is in fact indivisible and that the enumerated intents are 

alternative means, not elements. 

First, the statute does not repeat the phrase “an intent.” 

This suggests a single intent element that can be 

“demonstrate[d]” through one of two means, 18 Pa. Stat. and 

Cons. Stat. § 2709.1(a)(1), rather than two, alternative intent 

elements, as words are to be given the meaning that proper 

grammar assigns them, see Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts § 17 (2012). 

If it did repeat “intent,” such that it read “either an intent to 

place . . . or an intent to cause . . . ,” then the verb 

“demonstrate” would take two direct objects, stated in the 

alternative means of satisfying an actus reus element, or two 

alternative means of satisfying a single element. 
16

disjunctive—the noun phrases “an intent to place [in fear of 

bodily harm]” and “an intent to cause [emotional distress],” 

which would support the Government’s argument that the two 

intents are elements rather than means. But the statute has a 

single direct object—“an intent”—with disjunctive 

modifiers—“to place [in fear of bodily harm]” and “to cause 

[emotional distress]”—that are grammatically parallel, 18 Pa. 

Stat. and Cons. Stat. § 2709.1(a)(1), which supports

Vurimindi’s argument that the modifiers are simply different 

means of satisfying a single intent element. 

Second, the legislature’s choice of the verb

“demonstrate” in Section 2709.1(a)(1) is another strong textual 

signal that the alternative intents are means, not elements. A 

person must engage in the prohibited conduct “under 

circumstances which demonstrate” either of the alternative

intents in order to violate the statute. 18 Pa. Stat. and Cons. 

Stat. § 2709.1(a)(1). And the plain meaning of “demonstrate”

at the time of enactment was “to show clearly” or “to illustrate 

or explain esp[ecially] with many examples,” Demonstrate,

Merriam-Webster’s Collegiate Dictionary 308 (10th ed. 1993); 

see also Demonstrate, Oxford English Dictionary 447 (2d ed. 

1989) (“[t]o point out, indicate; to exhibit, set forth”).

6 Thus,

by describing the two alternatives as means of

“demonstrate[ing]” intent, the statute communicates that they 

are illustrative, explanatory, and exhibitive of a separate and 

6 The word “demonstrate” was first included in 

Pennsylvania’s stalking statute in 1993. See 18 Pa. Stat. and 

Cons. Stat. § 2709 (1993); 1993 Pa. Legis. Serv. 124 (West); 

see also B. Benjamin Haas, The Formation and Viability of 

Anti-Stalking Laws, 39 Vill. L. Rev. 1387, 1401 (1994) (noting 

that Pennsylvania’s anti-stalking statute was enacted in 1993).
17

singular subject. They are, in short, means of proving the 

requisite mens rea, not elements.

Additional support for a finding of indivisibility comes 

from our decision in United States v. Gonzalez, 905 F.3d 165 

(3d Cir. 2018), interpreting the federal cyberstalking statute, 18 

U.S.C. § 2261A(2). In Gonzalez, the defendants argued that 

the district court erred in failing to give a jury instruction 

requiring, inter alia, that the jury unanimously agree on the 

defendants’ mens rea to sustain a conviction under that statute. 

Like the Pennsylvania stalking statute, the federal 

cyberstalking statute utilizes the disjunctive to describe a 

singular “intent,” requiring the Government to establish that 

the defendant:

engaged in a course of conduct that 

placed a person in reasonable fear 

of death or serious bodily injury, or 

causes substantial emotional 

distress . . . “with the intent to kill, 

injure, harass, intimidate, or place 

under surveillance with intent to 

kill, injure, harass, or intimidate” 

that person. 

905 F.3d at 183 (quoting 18 U.S.C. § 2261A(2)). 

After reviewing the text of the statute and caselaw 

interpreting it, we could discern no evidence that Congress 

“intended to create separate offenses for stalking ‘with the 

intent to kill’ as opposed to stalking ‘with the intent to . . . 

injure’ or ‘with the intent to . . . harass,’” and therefore held 

that the different mental states in the statute constitute alternate

factual means and not alternate elements. Id. at 185. In 
18

reaching this conclusion, we found especially persuasive the 

fact that the cyberstalking statute “sets forth different tiers of 

punishment based not on the mental state of the defendant, but 

on the harm suffered by the victim,” reflecting that their mental 

state must be evidenced by “equivalent blameworthiness or 

culpability.” Id. at 185–86 (quoting United States v. Yeaman, 

194 F.3d 442, 454 n.6 (3d Cir. 1999)). 

Here, the Pennsylvania legislature drafted its stalking 

statute in a grammatically similar way, requiring a singular 

“intent” with disjunctive modifiers, and it also did not make

punishment contingent on the intent of the defendant. Rather,

the grade of the offense and the punishment for a violation of 

§ 2709.1 are dependent on an offender’s prior criminal history. 

See 18 Pa. Stat. and Cons. Stat. § 2709.1(c).

7

 So, just as in 

Gonzalez, as long as the defendant’s conduct “was taken with 

an intent to cause the victim harm, the specific mental state 

does not make a difference to the defendant’s culpability.”

Gonzalez, 905 F.3d at 185. Thus, here too, that the sentencing 

scheme indicates that the different intent one “means” with 

“equivalent blameworthiness,” id. (quoting Yeaman, 194 F.3d 

at 454 n.6), along with the text and grammar, favor a finding 

of different means, not different elements.

7 Under the Pennsylvania stalking statute, an offense 

can be a first-degree misdemeanor or third-degree felony, 

depending on offender’s criminal history. See 18 Pa. Stat. and 

Cons. Stat. § 2709.1(c). 
19

2. Pennsylvania Courts’ Interpretation of 

Section 2709.1(a)(1)

While parties may point to state court decisions as 

“authoritative sources of state law” that resolve a means-orelements question, Mathis, 579 U.S. at 518, the Government

has not identified any case that squarely addressesthis question 

in relation to Section 2709.1(a)(1), Answering Br. 24–25, nor

have we.

8

 If anything, the smattering of cases discussing the 

elements of a Section 2709.1(a)(1) conviction suggest instead 

that Vurimindi has the stronger argument.

For instance, the Government points us to the Superior 

Court’s statement in Commonwealth v. Abed that the “intent to 

place one in fear of bodily injury is but one mens rea that will 

sustain a conviction under § 2709[] . . . as a conviction may be 

upheld upon a showing that the accused intended to harass, 

annoy, alarm[,] or cause substantial emotional distress.” 989 

A.2d 23, 27 (Pa. Sup. Ct. 2010) (citation omitted). Answering 

Br. 24–25. But Abed is itself quoting the Superior Court’s 

decision in Commonwealth v. Miller, 689 A.2d 238, 240 (Pa. 

Super. Ct. 1997), and Miller actually undermines the 

8 To determine whether an “authoritative source[] of 

state law,” Mathis, 579 U.S. at 518, has resolved “this meansor-elements question,” we try to determine how the 

Pennsylvania Supreme Court would decide the substantive 

legal issue, Singh, 839 F.3d at 283 & n.5. However, when, as 

here, “there is no opinion or other ‘persuasive data’ on point 

from the Supreme Court of Pennsylvania,” we may rely on 

authoritative decisions of the Superior Court of Pennsylvania. 

Id. at 283 n.5 (quoting Sheridan v. NGK Metals Corp., 609 

F.3d 239, 254 (3d Cir. 2010)).
20

Government’s reading, describing a singular “intent element,”

with alternative means of establishing that element. See Miller, 

689 A.2d at 240 n.1 (“The intent element of stalking requires 

proof that the actor either intended to place the victim in 

reasonable fear of bodily injury or to cause substantial 

emotional distress.” (emphasis added)). In any event, when 

read in context, Abed and Miller, which both involve 

sufficiency of the evidence challenges on direct appeal, suggest 

only that a Section 2709.1(a)(1) stalking conviction can be 

upheld where the Government proves that the defendant acted 

under circumstances demonstrating one of the two enumerated 

intents—not that each of the intents listed is a separate element 

of two alternative stalking crimes. See Miller, 689 A.2d at 

239–41; Abed, 989 A.2d at 27–28.9

9 The Government also cites two non-precedential 

decisions: Commonwealth v. Heflin, No. 1700 WDA 2013, 

2014 WL 10588385, at *1 (Pa. Super. Ct. Sept. 30, 2014) (nonprecedential), and Commonwealth v. Hoffman, No. 2277 EDA 

2015, 2016 WL 7176962, at *1 (Pa. Super. Ct. Dec. 9, 2016) 

(non-precedential), as evidence of a divisible intent element. 

Answering Br. 25. Under Pennsylvania Court Rules, Pa. I.O.P. 

65.37, we may consider such unpublished state court opinions 

as persuasive authority “when predicting state law,” Taransky 

v. Sec’y of U.S. Dep’t of Health & Hum. Servs., 760 F.3d 307, 

317 n.9 (3d Cir. 2014), but neither case is persuasive on this 

point. In Heflin, the Superior Court drew a distinction between 

the lower intent required for the crime of harassment and the 

higher “malevolent intent” required for stalking. 2014 WL 

10588385, at *1. Nothing in that decision suggests that the 

intent element of the stalking statute is divisible; rather, the 

court simply addressed the sufficiency of the evidence issue

raised by the defendant on appeal. Id. And in Hoffman—which 
21

Similarly, although Pennsylvania courts have not 

squarely considered the divisibility of Section 2709.1(a)(1),

those discussing the elements of a conviction uniformly 

describe the mens rea element as a singular “intent.” See, e.g.,

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. Ct. 

2019) (“[B]oth Harassment and Stalking have an intent 

element.” (emphasis added)), appeal denied, 219 A.3d 597 (Pa. 

2019); Commonwealth v. D’Collanfield, 805 A.2d 1244, 1248–

49 (Pa. Super. Ct. 2002) (interpreting a “virtually identical” 

involved the admission of a 2003 stalking conviction as 

character evidence at trial—the trial court referred to “either 

section of [the] stalking [statute],” which the Government takes 

to establish two alternative intent elements. Answering Br. 25 

(citing Hoffman, 2016 WL 7176962, at *3). Effective in mid2003, the Pennsylvania legislature repealed and replaced the 

predecessor stalking statute with Section 2709.1. The previous 

statute enumerated the alternative intents in two numbered subsections. 18 Pa. Cons. Stat. Ann. § 2709(b)(1)–(2) (1999). The 

2003 conviction at issue in Hoffman dealt with the previous 

version of the stalking statute, see Appellant’s Br., 

Commonwealth v. Hoffman, 2016 WL 5944544, at *18 (Pa. 

Super. Ct. July 26, 2016), and thus the court’s reference to 

“either section” of the statute literally refers to two subsections

of the now-repealed stalking statute. In any event, the 

defendant in Hoffman argued that her prior conviction for 

stalking could not be probative of violence absent evidence of 

the underlying facts of her conviction, and the Superior Court 

flatly rejected this argument. 2016 WL 7176962 at *4. Thus, 

Hoffman does not imply—much less persuasively reason—that 

the alternative intents in Pennsylvania’s stalking statute are 

elements rather than means.
22

stalking statute and holding that “stalking requires a repetitive 

course of malevolent conduct, the intent of which was to place 

someone in fear of bodily injury or cause substantial emotional 

distress” (emphasis added)); see also Commonwealth v. 

Rushing, 236 A.3d 1098 (Pa. Super. Ct. 2020) (nonprecedential table decision) (“[S]talking requires an intent to 

create fear or emotional distress in the victim, an element not 

required to establish contempt.” (emphasis added)), appeal 

denied, 239 A.3d 2 (Pa. 2020); Commonwealth v. Mongeau, 

240 A.3d 153 (Pa. Super. Ct. 2020) (non-precedential table 

decision) (describing the intent element as the intent as “to 

place [the victim] in fear of bodily injury and/or to cause her 

substantial emotional distress.” (emphasis added)), appeal 

denied, 244 A.3d 1225 (Pa. 2021).

3. Additional Evidence of Indivisibility 

As a last resort, we “may look ‘to a limited class of 

documents (for example, the indictment, jury instructions, or 

plea agreement and colloquy),’” Rosa, 950 F.3d at 81 (quoting 

Mathis, 579 U.S. at 505), and here, those documents also 

support the conclusion that the statute is indivisible—even 

when the Government contends otherwise. See Answering Br. 

26–30.

The documents specific to Vurimindi’s conviction—

including the criminal information, order of sentence, and trial 

disposition form—are a good illustration. The Government 

asserts that their references to “Stalking—Repeatedly 

Commits Acts to Cause Fear,” as shorthand for Vurimindi’s 

Section 2709.1(a)(1) conviction prove that Pennsylvania 

courts treat the two intents as giving rise to two different 

offenses. Answering Br. 28; see also JA131, 133–34. But its 

hypothesis, which is that the “cause fear” shorthand refers only 
23

to stalking with intent to “cause fear of bodily injury,”

relegating the distinct offense of stalking with intent to cause 

emotional distress to a different shorthand, Answering Br. 27–

29, is not borne out by a survey of the case law or dockets in 

Pennsylvania stalking cases.

To the contrary, that survey reveals that the same “cause 

fear” shorthand that appears in Vurimindi’s paperwork is used 

in all Section 2709.1(a)(1) stalking cases, including those 

involving intent to cause substantial emotional distress. As just 

one example, though the Superior Court’s opinion in 

Commonwealth v. Sammy makes clear that the defendant’s 

conduct involved only “intent to cause substantial emotional 

distress,” No. 1671 WDA 2016, 2018 WL 2010436, at *5 (Pa. 

Super. Ct. Apr. 30, 2018) (non-precedential), the docket 

repeatedly uses the shorthand “Stalking—Repeatedly Commit 

Acts To Cause Fear.” See Commonwealth v. Sammy, No. CP02-CR-0004751-2015 (Ct. Common Pleas, Allegheny Cnty. 

Oct. 6, 2016), available at 

https://ujsportal.pacourts.us/Report/CpDocketSheet?docketN

umber=CP-02-CR-0004751-

2015&dnh=WxFwQeZfNC5vOfV1S0%2Bu8A%3D%3D; 

see also Reply Br. 7 n.2 (collecting other examples). 

Pennsylvania’s sentencing guidelines likewise use “Stalking—

repeated acts to cause fear of BI [bodily injury]” as shorthand 

for all Section 2709.1(a)(1) cases, regardless of intent. See 204 

Pa. Code § 303.15. 

The Government also posits that the model jury 

instructions for Section 2709.1 support a finding that the 

statute is divisible as to intent.10 Answering Br. 26. We draw 

10 We have previously considered Pennsylvania’s 

pattern jury instructions to be relevant to our divisibility 
24

the opposite conclusion. The relevant jury instructions are 

structured in a way that communicates only two elements—

one actus reas and one mens rea:

To find the defendant guilty of this offense, you 

must find that each of the following elements has 

been proven beyond a reasonable doubt: 

First, that the defendant: 

a. engaged in a course of conduct . . . or 

b. repeatedly committed acts . . . or 

c. repeatedly communicated . . . and 

Second, that the defendant did so under 

circumstances that demonstrated that [he] [she] 

intended: 

a. to put [name of victim] in reasonable 

fear of bodily injury; or 

analysis, see, e.g., United States v. Steiner, 847 F.3d 103, 119 

(3d Cir. 2017); however, the Pennsylvania Supreme Court has 

explained that “[t]he Suggested Standard Jury Instructions 

themselves are not binding . . . ; rather, as their title suggests, 

the instructions are guides only,” Commonwealth v. Eichinger, 

108 A.3d 821, 845 (Pa. 2014). Thus, at most, the pattern jury 

instructions are but one relevant source of authority that we 

consider in determining whether Section 2709.1(a)(1) is 

divisible. 
25

b. intended to cause [him] [her] 

substantial emotional distress. 

Pa. S.S.J.I. (Crim), § 15.2709.1. Even aside from enumerating 

only two elements, the “[f]irst,” the act, and the “[s]econd,” the 

intent, id., a subcommittee note to these jury instructions 

explains that “[i]n a prior version of these instructions, the 

subcommittee had suggested that a third element of this 

offense required that the Commonwealth prove that the victim 

was actually placed in fear by the defendant’s actions,” and that

because the proposed third element appeared neither in the 

statute nor in the decisions of Pennsylvania’s appellate courts, 

the subcommittee removed it. Id. (emphasis added). Thus, 

directly contrary to the Government’s reading, the pattern jury 

instructions make explicit that the alternative intents are simply 

means of satisfying the intent element. 

In sum, the Government has identified no evidence that 

supports divisibility. The statute, the case law, and the 

available state court documents all support the opposite 

conclusion.11 Because Pennsylvania’s stalking statute is 

indivisible as to intent, we apply the categorical approach. And

under the categorical approach, Section 2709.1(a)(1), which 

sweeps more broadly than its generic counterpart in the INA, 

is not a categorical match. Vurimindi’s offense of conviction

therefore does not qualify as a removable offense.

11 Because there was no indictment, plea, or jury trial in 

Vurimindi’s underlying criminal case, there are no additional 

documents associated with those events to review. 
26

IV. Conclusion

For the foregoing reasons, we will grant Vurimindi’s 

petitions, vacate the BIA’s orders, and remand to the agency

for further proceedings consistent with this opinion.