In re Sanchez-Lopez
| Decision Date | 20 April 2018 |
| Docket Number | Interim Decision #3924 |
| Citation | 27 I&N Dec. 256 |
| Parties | Matter of Jorge Isaac SANCHEZ-LOPEZ, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
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) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Overland Park, Kansas
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 removability 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 respondent's appeal will be sustained and the proceedings will be terminated.
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 this conviction, the Department of Homeland Security("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 respondent's appeal in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), holding that the offense of stalking in violation of section 646.9 of the California Penal Code is "a crime of stalking" under section 237(a)(2)(E)(i) of the Act.
On January 28, 2014, the Ninth Circuit 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 reaffirmed 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 respondent's removability.
On remand, the respondent argues 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. The DHS counters that the respondent's State offense is a predicate for removal under that section of the Act.3 After further consideration, we conclude that the respondent's conviction under section 646.9 is not for a crime of stalking under section 237(a)(2)(E)(i). We will therefore overrule Matter of Sanchez-Lopez and vacate our prior orders in this case to the extent that they conclude otherwise.
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 containing 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 stalking 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."
According 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 falls outside the generic definition." Duenas-Alvarez, 549 U.S. at 193. The Ninth Circuit has explained that a respondent "can show the requisite '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. (quoting Duenas-Alvarez, 549 U.S. at 193). Second, "if 'a state statute explicitly defines a crime 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 (quoting Grisel, 488 F.3d at 850). Thus, Id. at 1010 (citations 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 her family" under section 646.9 as being limited to a fear of death or bodily injury. However, our survey of California cases shows that the conduct prosecuted under section 646.9 invariably involves statements and patterns of conduct that reasonably imply an intent to cause the victim to either personally fear physical harm or fear such harm to his or her family.5 Further, the California cases the Government cited 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 family.6
Nevertheless, none of these California cases definitively settles whether there is a "realistic probability" that section 646.9 would be applied to a stalking offense committed with the intention of causing a victim to fear nonphysical injury, either personally or to his or her family. We must therefore examine whether "the statutory language" of section 646.9 establishes that "the statute [is] overly inclusive." Chavez-Solis, 803 F.3d at 1010 (citation omitted) (internal quotation mark omitted).
In 1994, the California Legislature amended section 646.9 "to require that the target of the threat need only fear for the target'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 the Legislature explicitly replaced the specific reference to death or great bodily injury with the broader term "safety," stalking offenses 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. We therefore conclude, pursuant to Ninth Circuit law, that the statutory text of section 646.9 establishes that there 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 definition 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, we 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 the 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 argues that we should redefine the term "stalking" in 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 State and Federal 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 States have broadened the term "stalking" to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses "based on the 'generic, contemporary meaning' of the statutory words at the time the statute was enacted." Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which...
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