Arriaga v. Mukasey

• Citation: 521 F.3d 219
• Decision Date: 27 March 2008
• Docket Number: Docket No. 07-1148-ag.
• Parties: Nelson ARRIAGA, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

521 F.3d 219

Nelson ARRIAGA, Petitioner, v. Michael B. MUKASEY,¹ Respondent.

Docket No. 07-1148-ag.

United States Court of Appeals, Second Circuit.

Argued: December 13, 2007.

Decided: March 27, 2008.

Ramiro Alcazar, Meriden, CT, for Petitioner.

James A. Hunolt, Senior Litigation Counsel, Officer of Immigration Litigation, Civil Division, United States Department of Justice (Peter D. Keisler, Assistant Attorney General, and John P. Devaney, Trial Attorney, on the brief), Washington, D.C., for Respondents.

Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Nelson Arriaga ("Arriaga") petitions for review of a final order of removal of the Board of Immigration Appeals ("BIA"). The BIA dismissed Arriaga's appeal from the decision of the Immigration Judge ("IJ") Paul M. Gagnon, which sustained Arriaga's removability under the subsection of the Immigration and Nationality Act ("INA") that renders deportable any alien convicted of stalking. See INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) ("the INA stalking provision"). In re Arriaga, A74 913 575 (B.I.A. Feb. 28, 2007), aff'g No. A74 913 575 (Immig. Ct. Hartford Nov. 29, 2006). Arriaga concedes that he was convicted of stalking under Connecticut's penal code, but he argues that the INA stalking provision, which does not define "stalking," is unconstitutionally vague, on its face and as applied. This challenge presents a question of first impression in the courts of appeals.

BACKGROUND

Arriaga, a native and citizen of Honduras, was admitted to the United States as a lawful permanent resident in 2000. In October 2004, Arriaga pled guilty in Connecticut Superior Court to stalking in the second degree under Connecticut General Statutes § 53a181d(a):

A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.

In March 2006, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Arriaga pursuant to INA § 237(a)(2)(E)(i), which provides: "Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable." 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added). The INS added a second charge of deportability pursuant to INA § 237(a)(2)(A)(i), which provides for the removal of an alien convicted of a crime involving moral turpitude committed within five years after the date of admission. See 8 U.S.C. § 1227(a)(2)(A)(i).

At his hearing in July 2006, Arriaga conceded the conviction, but argued that the offense was insufficiently violent or depraved to justify removal under the applicable statutes. The IJ ruled Arriaga removable because his crime was one of moral turpitude. But in October 2006, the BIA, citing the IJ's failure "to provide reasons and bases for his conclusion," remanded for the IJ to prepare a full decision.

The IJ's November 2006 post-remand decision found that Arriaga is removable under both grounds charged by the INS. As to stalking, undefined in the INA, the IJ looked to the law dictionary and decided that the common law and the Connecticut statute "criminalize the same type of behavior: that of following another individual with the intent of causing him or her harm or to fear harm." The IJ accordingly found that Arriaga's Connecticut conviction qualified as a conviction for a crime of stalking under the INA. The IJ also ruled that stalking involves moral turpitude because it entails predatory and inherently threatening conduct.

In February 2007, the BIA affirmed the removal order and dismissed the appeal, stating: "[I]nasmuch as [Arriaga's] conviction is clearly a crime of stalking, we find no error in the Immigration Judge's conclusion that he is deportable pursuant to section 237(a)(2)(E)(i)." The BIA declined to consider whether Arriaga is also deportable for having been convicted of an offense involving moral turpitude. The BIA recognized that the agency lacks jurisdiction to consider Arriaga's argument that the INA stalking provision is unconstitutionally vague. See Matter of Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA 1997); Matter of C-, 20 I. & N. Dec. 529, 532 (BIA 1992); see also Zerrei v. Gonzales, 471 F.3d 342, 345 n. 3 (2d Cir.2006) (per curiam).

DISCUSSION

On this appeal, Arriaga challenges only the constitutionality of the INA stalking provision, arguing that the provision is void for vagueness on its face, and as applied in his case, because it does not define the word "stalking." We review de novo constitutional challenges to a statutory provision. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 493, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991); Field Day, LLC v. County of Suffolk, 463 F.3d 167, 176 (2d Cir.2006).

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "[T]he void-forvagueness doctrine requires that a penal statute define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

The "void for vagueness" doctrine is chiefly applied to criminal legislation. Laws with civil consequences receive less exacting vagueness scrutiny. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (expressing "greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe."); Chatin v. Coombe, 186 F.3d 82, 86-87 (2d Cir.1999) (scrutinizing "closely" a prison regulation prohibiting religious services because its penalties were more akin to criminal than civil penalties); see also Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (reviewing deportation provision for vagueness because of the "grave nature" of the penalty of forfeiting one's residence). The statute reviewed in Jordan v. De George was an earlier version of the same section of the INA at issue here (specifically, the subpart authorizing deportation for crimes involving moral turpitude). The Court "emphasized that this statute does not declare certain conduct to be criminal" and that "[i]ts function is to apprise aliens of the consequences which follow after conviction and sentence." Id. at 230, 71 S.Ct. 703. However, because deportation is a "drastic measure," the Court assessed the statute for vagueness as if it imposed a criminal penalty. Id. at 230-31, 71 S.Ct. 703 (internal quotation marks and citation omitted); see also Restrepo v. McElroy, 369 F.3d 627, 635 n. 16 (2d Cir.2004) ("deportation, like some other kinds of civil sanctions, combines an unmistakable punitive aspect with non-punitive aspects"). We need not decide whether the INA stalking provision should be assessed as a civil or criminal statute because even under the close scrutiny accorded criminal. laws, Arriaga's vagueness challenge fails.

I

Claims of facial invalidity are generally limited to statutes that threaten First Amendment interests. See Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ("First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied."). Arriaga does not claim that the INA stalking provision compromised his First Amendment rights. "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); see United States v. Rybicki 354 F.3d 124, 129 (2d Cir.2003) (en banc) ("[W]hen ... the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only `as applied,' i.e., `in light of the specific facts of the case at hand and not with regard to the statute's facial validity.'") (quoting United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993)).

Although we have suggested that some facial vagueness challenges may be brought where fundamental rights are implicated outside the First Amendment context, we need not pursue that issue because Arriaga has not identified a fundamental right compromised by the INA stalking provision. See Farrell v. Burke, 449 F.3d 470, 495-96 & n. 11 (2d Cir.2006) (noting that Rybicki suggests that facial vagueness challenges may be brought where other fundamental rights are at stake). Arriaga characterizes the INA stalking provision as a restriction on the right to travel and to interstate movement. See Mem'l Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (recognizing the right of interstate travel as a "basic constitutional freedom"). However, the INA provision does not prohibit stalking; it provides for removal of aliens who have been convicted of that offense. In that light, the INA stalking provision is an exercise of the fundamental authority of the political branches to exclude undesirable aliens. "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (internal quotation marks and citation omitted); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) ("Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct...