C ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

256 

### Matter of Jorge Isaac SANCHEZ

- LOPEZ
, Respondent

Decided April 20 , 2018

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (20 12 ). Matter of Sanchez

- Lopez , 26 I&N Dec. 71 (BIA 2012), overruled.

FOR RESPONDENT: Matthew L. Hoppock

, E squire, Overland Park, Kansas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy

, Associate Legal Advisor

BEFORE: Board Panel: GUENDELSBERGER and PAULEY

, Board Members

. Dissenting Opinion: MALPHRUS , Board Member.

GUENDELSBERGER

, Board Member :

This case is before us on remand from the United States Court of Appeals for the Ninth Circuit for further consideration of the respondent’s

remova bility under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012)

, as an alien convicted of a crime of stalking

. The respond e n t’s appeal will be sustained and the

p roceedings will be terminated.



### I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Peru who was admitted to the United States as a lawful permanent resident in 1993 . On April 19, 2011, he was convicted of stalking under section 646.9(b) of the California Penal Code. 1 Based on t his conviction , the Department of Hom el and Security

1 Section 646.9 of the California Penal Code provides, in relevant part, as follows:

(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously 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 st alking, punishable by imprisonment in aC ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

257 (“DHS”) initiated removal proceedings against the respondent

, charging him with removability under section 237(a)(2)(E)(i) of the Act. 2 On March 31, 2012, the Immigration Judge found the respondent removable and denied his application for relief. We dismissed the responde n t’s appeal in Matter of Sanchez

- Lopez , 26 I&N Dec. 71 (BIA 2012) , holding that t he offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under s ection 237(a)(2)(E)(i) of the Act

. On January 28, 2014, the Ninth Ci r cuit granted the Government’s unopposed motion to remand so that we could reconsider our holding in Matter of Sanchez

- Lopez

. On March 23, 2015 , we re affirmed our decision

, concluded that the respondent’s conviction is for a crime of stalking under section 237(a)(2)(E)(i)

, and dismissed his appeal

. On June 24, 2015, the Ninth Circuit granted the Government’s second unopposed motion to remand for us to further reconsider the respond e n t’s removability

. On remand, the respondent argu es that his conviction for stalking in violation of section 646.9 is not for a crime of stalking under section 237(a)(2)(E)(i) of the Act. T he DHS counters that the respondent ’s State offense is a predicat e for removal under that section of the Act

. 3 After further consideration, we conclude that the respondent’s conviction under section 646.9 i s not for a crime of stalking under section 237(a)(2)(E)(i)

. W e will therefore overrule Matter of Sanchez

- Lopez and vacate our prior orders in this case to the extent that they conclude otherwise

.

county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. (b) Any person who violates subdivis ion (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.

. . . . (g) For the purposes of this section, “credible threat” means a verbal or written threat

. . . made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her fam ily

. . . .

2 The DHS also charged the respondent under section 237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony. However, the Immigration Judge declined to sustain that charge, which is not the subject of this appeal.

3 The DHS made this argument in a supplemental brief, which it submitted in response to our request to both parties for supplemental briefing. Although t he respondent oppose s the DHS’s submission of its supplemental brief , we will consider it in the exercise of our discretion

. See 8 C.F.R. § 1003.3(c) (2017).C ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

258 

### I I. ANALYSIS

Section 237(a)(2)(E)(i) of the Act provides that an “alien who at any time after admission is convicted of

. . . a crime of stalking . . . is deportable. ” In Matter of Sanchez

- Lopez

, 26 I&N Dec. at 74 , we defined the “crime of stalking” in section 237(a)(2)(E)(i) as an offense contain ing the following elements: “ (1) conduct that was engaged in on more than a single occasion, (2) which was 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

. ” 4 (Emphasis added.) Applying this generic definition, we held that the offense of s talking under section 646.9 is categorically a “crime of stalking” under section 237(a)(2)(E)(i). Citing Gonzales v. Duenas

- Alvarez , 549 U.S. 183 (2007), and United States v. Grisel , 488 F.3d 844 (9th Cir. 2007) (en banc) , the Government sought a remand in its second unopposed motion to allow us “ to reconsider whether there is a ‘ realistic probability ’ that California would apply section 646.9 [] to conduct ” falling outside the definition of a “crime of stalking” outlined in Matter of Sanchez

- Lopez . More precisely, the Government asked us 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 ‘ safety ’ in a non

- physical sense

. ” Ac cording to the Supreme Court

, “ to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute ” there must be “ a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that fall s outside the generic definition. ”
Duenas

- Alvarez , 549 U.S. at 1 93 . The Ninth Circuit has explained that a respondent “can show the requisi te ‘ realistic probability ’ ” in two ways. Chavez

- Solis v. Lynch , 803 F.3d 1004

, 1009 (9th Cir. 2015)

. First, he can “point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id. ( quo ting Duenas

- Alvarez , 549 U.S. at 193). Second, “ if ‘a state statute explicitly defines a c rime more broadly than the generic definition, no “ legal imagination ” is required to hold that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime

. ’ ” Id. at 1009

– 10 (quotin g Grisel , 488 F.3d at 850 ). Thus, “ when a

‘ state statute ’ s greater breadth is evident from its text, ’ a [respondent] need

4 We also recognized that there is a fourth element involving the subjective and objective consequences of the stalker’s conduct

, “ on which there is no clear consensus in the State

statutes .” Matter of S anchez

- Lopez

, 26 I&N Dec. at 74 . However, we declined “to resolve the contours of the fourth element relating to the cons equences of the conduct because” section 646.9 requires proof “ that both the targeted individual and a reasonable person in the circumstances” was or would be “placed in fear of bodily injury or death.” Id

.C ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

259 not point to an actual case applying the statute of conviction in a nongeneric

manner. [He or she] may simply ‘ rely on the statutory language to establish the statute as overly inclusive. ’” Id. at 1010 (citation s omitted). In its motion, the Government has cited California and Ninth Circuit

cases in which the courts have declined to consider the victim’s “fear for his or her safety or the safety of his or h er family” under section 646.9 as being limited to a fear of death or bodily injury

. However, ou r survey of California cases shows that the conduct prosecuted under section 646.9 invariably involve s statements and patterns of conduc t that reasonably imply an intent

to caus e the victim to either personally fear physical harm or fear such harm

to his or her family. 5 Further , the California cases the Government cite d in its motion involved situations where the totality of the circumstances surrounding the defendant’s conduct implied a threat against the physical safety of the victim or his or her famil y

. 6

5 See, e.g.

, People v. Itehua , 173 Cal. Rptr. 3d 614 , 617 (Ct. App. 2014) ( holding that the defendant’s pattern of behavior, including his repeated visits to the victim’s hous e without permission, was “an implied threat that invited [the victim’s] resistance or escape ” and thus possible injury) ; People v. McPheeters , 159 Cal. Rptr. 3d 607 , 618 (Ct. App. 2013) ( concluding that the defendant’s threats to beat the victim up and to shoot her “ implied

. . . a cre dible threat based on defendant’ s violent history and his pattern of conduct ” ); People
v. McCra y , 67 Cal. Rptr. 2d 872 , 881 (Ct. App. 1997) (finding that the defendant’s pattern of past violent conduct toward the victim “ te nded to demonstrate both that [the defendant] was capable of inflicting physical harm upon [his victim] and that [she] would have reason to fear h is threats might be carried out” ) ; People v. Falck , 60 Cal. Rptr. 2d 624 , 630

– 31 (Ct. App. 1997) ( finding that the defendant’s letters to the victim could “be construed as a threat to kill the victim or her husband” and “conveyed a credible threat” that gave her “cause to fear him” ).

6 See People v. Thimmes

, No. NA076325

, 2009 WL 2005598, at * 4

– 5 ( Cal. Ct. App. July 13, 2009) ( concluding that the victim’s fear for her own and her family’s safety was reasonable where , among other things, the defendant threatened to “physically harm” her husband) ; People v. Uecker , 91 Cal. Rptr. 3d 355, 366 (C t . App. 2009) ( hold ing that

, “[t]aken as a whole,” the defendant’s “ pattern of unrelenting conduct over the course of three weeks that toward the e nd became hostile and demanding ” implied “ a threat that caused [the victim] to reasonably fear for her safety ” ); People v. Wigfa ll

, No. 195789

, 2006 WL 3365659, at *2

– 6 (Cal. Ct. App. Nov. 21, 2006) ( finding that the defendant’s actions

— namely, following the victim to the bathroom, punching a hole in the bathroom door, physically assaulting her

, and persistently threatening to evict her

— implied a threat to the victim’s safety); People v. Theurer , No. 2003010002, 2005 WL 236761, at *3

– 4 (Cal. Ct. App. Jan. 25, 2005) (finding that the defendant’s pattern of conduct, which “consisted of harassing le tters , phone calls, and visits ,” was “ intended to cause the victim to fear for her safety ”) ; People v. Zavala , 30 Cal. Rptr. 3d 398, 404 ( Ct. App. 2005) (finding that the defendant’s threat to kill his wife “ caused [her] to reasonably fear for her safety” ); People v. Borrelli

, 91 Cal. Rptr. 2d 851, 854, 862 (Ct. App. 2000) ( upho lding the judgment against a stalker who threat ened to kill the victim and her parents ).C ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

260 Nevertheless

, n one of the se California cases definitively settle s whether there is a “realistic probability” that section 646.9 would be applied to a stalking offense committed with the intent ion of causing a victim to fear nonphysical injury

, either personally or to his or her family. We must therefore examine whether “t he statutory language ” of section 646.9 establish es that “ the statute [is] overly inclusive .” Chavez

- Solis , 803 F.3d at 1010 (citation omitted) (internal quotation mark omitted)

. In 199 4 , t he California L egislature amended section 646.9 “ to require that the target of the threat need only fear for the tar get ’ s safety or that of his or her family while deleting any requirement that the threat be ‘ against the life of, or [threaten] great bodily injury to ’ the target .” People v. Zavala , 30 Cal. Rptr. 3d 398, 404 ( App. Ct. 2005) (emphasis added) (citation omitted).
Because t he L egislature explicit ly replaced the specific reference to death

or great bodily injury with the broader term “safety

, ” stalking offense s committed with the intention of causing a victim to fear nonphysical injury

, either personally or to his or her family , may be prosecuted in California

. W e therefore conclude, pursuant to Ninth Circuit law

, that the statutory text of section 646.9 establishes that the re is a “ realistic probability ” that California would apply the statute to conduct falling outside the definition of the “crime of stalking” that we outlined in Matter of Sanchez

- Lopez

. See Chavez

- Solis

, 803 F.3d at 1009

– 10. In addition to being overbroad , the term “safety” in section 646.9 is “indivisible” relative to the de finition of a “crime of stalking” in section 237(a)(2)(E)(i) of the Act. See Almanza

- Arenas v. Lynch , 815 F.3d 469, 476

– 77 (9th Cir. 2016) (citing Descamps v. United States

, 570 U.S. 254 , 265 (2013)). As a result, w e cannot resort to the record of conviction to determine whether the respondent’s offense involved a threat that reasonably caused his victim to fear death or bodily injury

, either personally or to her family

. Although t he DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez

- Lopez , it asserts that we should broaden the definition of a “ crime of stalking” under section 237(a)(2)(E) (i) of the Act to meet contemporary standards

. Specifically, it ar gues that we should redefine the term “ stalking ” i n the Act based on its commonly understood meaning

, either in 2012 when we decided Matter of Sanchez

- Lopez , or based on the common elements of S tate and F ederal stalking statutes in 2017

. We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996

, in that a number of S tate s ha ve broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater pro tections to their citizens against stalk ers

. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time theC ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

261 statute was enacted.” Matter of Cardiel , 25 I&N Dec. 12, 17 (BIA 2009) ( quo ting Taylor v. United States , 495 U.S. 575, 598 (1990 )) ; see also Matter of Alvarado

, 2 6 I&N Dec. 895, 897 (BIA 2016). The DHS relies on t he decision of the Supreme Court in Voisine v. United States , 136 S. Ct. 2272

, 228 1 (2016)

, which declined “ to wind the clock back ” to consider the common law in discerning whether the provision at issue reached reckless

acts. B ut that case also looked to the legislative history and the “state

- law backdrop” that existed at the time the statute was enact ed

. Id. at 2280

– 82.
W e are therefore unpersuaded to broaden the definition of the term “ s talking ” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense. Upon reconsideration, we conclude that t he offense of stalki ng in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act . W e will therefore overrule our decision in Matter of Sanchez

- Lopez and vacate all prior orders in this

case to the extent they hold to the contrary

. Accordingly, because the respondent is not removable, his appeal will be sustained and t h e removal proceedings will be terminated. 

### ORDER: The appeal is sustained and t h e removal proceedings are terminated.



### DISSENTING OPINION : Garry D. Malphrus , Board Member

I agree with the majority that we must look to the generic definition of “stalking” when Congress enacted section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (Supp. II 1996)

. See Taylor v. United States , 495 U.S. 575, 5 8 9

– 90 , 598 (1990); see also Matter of Alvarado , 26 I&N Dec. 895, 897 (BIA 2016). In that re spect

, I disagree with the Department of Homeland Securit y (“DHS”) that the Board is free to adopt a generic definition without regard to the laws as they existed at the time Congress added stalking as a removable offense in 1996. M odify ing legal definitions at will based on contemporary standards would conflic t with our duty to interpret statutory language consistent with c ongressional intent at the time of a statute’s enactment. See Matter of Alvarado , 2 6 I&N Dec. at 897. However, I do agree with the DHS that the Board can and should define the generic definition of stalking to include the California statute at issue in this case. Therefore, I respectfully dissent. While the differences in language among the S tate statute s makes precise comparisons difficult, it appears that a majority of the States tha t had stalking statutes in 1996 included as the key legal standard the victim’s reasonable fear of bodily or physical injury or death to himself or herself or to a familyC ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

262 member. However, there was no clear consensus among the States as to the specific la nguage and its scope. California and other State statutes referred to a reasonable fear f or one’s “safety” 1 or a reasonable fear f or personal or physical safety, 2 rather than a reasonable fear of bodily injury. Many other States statutes employed a defin ition broader than fear of bodily injury or fear f or safety that would include fear of property damage 3 or acts that would cause a reasonable person to suffer, inter alia, emotional or mental distress. 4 I agree with the majority that a generic definition of “stalking” must have specific parameters

, and I would not include all States that had stalking statutes in 1996, given the significant disparity in how stalking was defined by the various States at that time. However, the key point for our purposes is that the generic definition that we provided in Matter of Sanchez

- Lopez

, 26 I&N Dec. 71 (BIA 2012), w h ich was based on a fear of bodily injury or death

, is not substantially different from a fear f or one’s safety , which some of the States, including California, have inc orporat ed in their definition of stalking. In my view, a reasonable fear f or one’s safety, which was included in several State statutes at the time Congress added stalking as a removable offense in 1996, should be part of the generic definition of stalking in section 237(a)(2)(E)(i) of the Act. As a practical matter, the language in section 646.9 of the Cal ifornia Pen al Code regarding the victim’s “reasonable fear for his or her safety, or the safety of his or her immediate family” is not significantly different from the generic definition we adopted in Matter of Sanchez

- Lopez . We could and should amend th at definition to include a reasonable fear for one’s safety or that of a family member and thus find that section 646.9 is a categorical match to the generic definition of stalking

. 5

1 See, e.g.

, Cal. Penal Code § 646.9 (West 1996); Colo. Rev. Stat. § 18

- 9

- 111(4) (1996); Kan. Stat. Ann. § 21

- 3438 (a) (1996).

2 See, e.g ., Conn. Gen. Stat. § 53a

- 181d (1996); N.H. Rev. Stat. Ann. § 633:3

- a (1996); Or. Rev. Stat. § 163.732 (c) (1996).

3 See, e.g

., Haw. Rev. Stat. § 711

- 1106.5(1)(b) ( 1996 ); S.C. Code Ann. § 16

- 3

- 1700 (B)(6) (1996); Tex. Penal Code Ann. § 42.071 (a)(2) (West 1996); Wash. Rev. Code. § 9A.46.110 (1)(b ) (1996).

4 See, e.g.

, Ala. Code §13A

- 6

- 92(c) (1996 ) ; Fla. Stat. § 784.048 (1)(a) (1996 ) ; Ind. Code 35

- 45

- 10

- 2 (1996); Mich. Comp. Laws § 750.411h (1) (1996); Mo. Rev. Stat. Ann. § 565.225 .1(3)

– .2 (1996); Mont. Code Ann. § 45

- 5

- 220 (1) (1996); Ohio Rev. Code Ann. § 2903.211 (A) (West 1996); Okla. Stat. Ann. tit. 21, § 1173(F)(1) (West 1996 ) ; 18 Pa. Stat. and Cons. Stat. Ann. § 2709(b) (2) (West 1996); Utah Code An n. § 76

- 5

- 106.5 (2)(a)(ii) ( West 1996); Vt. Stat. Ann. tit. 13, § 1061(1) (B) (West 1996); Wyo. Stat. Ann. § 6

- 2

- 506 (a)(ii) (199 6)

. 5 The definition we adopted in Matter of Sanchez

- Lopez closely tracked the 1993 Model Anti

- Stalking Code, and we did not conduct a comprehensive survey of the relevant Federal and State stalking statutes.C ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

263 As the majority has correctly co nclude d , a survey of California cases does not show a realistic probability that a person would be prosecut ed for conduct that would involve a reasonable fear f or one’s safety

, but not a reasonable fear of bodily injury or death. See Moncrieffe v. Holder , 569 U.S. 184, 191

, 206 (2013) ( stating that to show a “realistic probability,” it must be demonstrated that the S tate “actually pro secutes” conduct outside the generic definition of the crime). I agree with the majority that we cannot resolve th e respondent’s case on this ground, given the Ninth Circuit’s reliance on statutory language to establish that a statute is overly inclusive

, rather than

on any actual cases

. B ut the lack of a realistic probability of prosecution strong ly indicat es that the reasonable fear f or one’s safety is not substantially different from a reasonable fear of bodily injury or death

, and it supports a determ ination that fear for one’s safety should be included in the generic definition of stalking. Since 1996, many States have revised the scope of their stalking statutes to provide greater protection for stalking victims. Congress has broadened the F ederal statute in 18 U.S.C. § 2261A ( Supp. II 1996 )

, which was first enacted on Sept ember 23, 1996

, and was in effect until Oct ober 27, 2000, so that it now also include s substantial emotional distress to the victim. See 18 U.S.C. § 2261A ( Supp. I V 201 7 ). Eve n under the generic definition that I would adopt, many stalking statutes may not be covered as a result of our obligation to follow the categorical approach

, as most recently explained in Descamps v. U nited S tates

, 570 U.S. 254 (2013), and Mathis v. Uni ted States

, 136 S. Ct. 2243 (2016). The F ederal stalking statute and the State stalking statutes that extend beyond a fear of bodily injury or safety, such as those that include an intent to cause emotional distress, will often be found to be overbroad

. A nd, if they are indivisible, they would not be a categorical match

to section 237(a)(2)(E)(i) of the Act

, even if we were to adopt my proposed generic definition , which includes a reasonable fear for one’s safety. However, under the definition that the majority applies today, it appears that a very small number of States will be covered going forward

. And t hese are States that have not amended their laws to inclu d e the type of stalking conduct that 18 U.S.C. § 2261A protect s victims against today. Cf. Torres v. Lynch , 136 S. Ct. 1619, 1628 (2016) (stating that Congress did not intend to limit the application of t he aggravated felony provisions of the Act in manner that would produce “‘ haphazard’

— indeed, upside down coverage ” ( citation omitted ) )

. As we noted in Matter of Sanchez

- Lopez , 26 I&N Dec. at 7 5 n

. 5

, there is, in fact, no claim that the respondent’s conduct did not involve placing the victim in fear f or her physical safety. Applying the categorical and modified categorical approaches at t hat time, we would not have be en precluded from considering

, to some degree

, the factual basis for theC ite as 27 I&N Dec. 256 (BIA 2018 ) Interim Decision #39 24

264 respondent’s conviction. See, e.g.

, United States v. Aguila

- Montes de Oca

, 655 F.3d 915, 935 (9th Cir. 2011) (en banc )

, abrogated by Descamps

, 570 U.S. 254, and Young v. Holder , 697 F.3d 976 (9th Cir. 2012). The legal landscape has changed since we published our decision in Matter of Sanchez

- Lopez

. This case i llu s trates the limitations of appl y i ng the categorical approach imposed by the Supreme Court in Descamps and Mathis to provisions of the immigration laws enacted by Congress for the purpose of remov ing aliens convicted of serious criminal conduct

. See Matter of Chairez , 27 I&N Dec. 21, 25

– 26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury , as many such s talking cases do

. Because of t his strict categorical approach

, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act

. As a result, in California a nd many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act

, even though the record makes clear that he or she committed “ a crim e of stalking

. ” It is highly unlikely that Congress intended this result.