Orellana v. Barr

• Decision Date: 28 July 2020
• Docket Number: No. 19-70164,19-70164
• Citation: 967 F.3d 927
• Parties: Miguel Angel ORELLANA, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

967 F.3d 927

Miguel Angel ORELLANA, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-70164

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 2020,^* Pasadena, California

Filed July 28, 2020

M. SMITH, Circuit Judge:

Petitioner Miguel Orellana is a native and citizen of El Salvador who became a lawful permanent resident of the United States. Decades after his admission to the United States, he was convicted of two counts of criminal stalking in violation of California Penal Code § 646.9(a) for which he received a one-year term of imprisonment. In relevant part, the Department of Homeland Security (DHS) charged him with being removable as an alien who committed two crimes involving moral turpitude (CIMT) not arising out of a single scheme of criminal conduct after admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(ii). An immigration judge (IJ) concluded that Orellana was removable as charged. The Board of Immigration Appeals (BIA) affirmed. Orellana petitioned for our review.

We hold that the BIA did not err in concluding that a § 646.9(a) criminal stalking conviction is a CIMT because a § 646.9(a) offense is categorically a CIMT. We hold further that the BIA reasonably concluded that Orellana's two § 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct. Thus, we deny the petition.

BACKGROUND

Orellana has resided in the United States since 1986. He obtained lawful permanent resident status in 1997. Twenty years later, a California state court convicted him in 2017 of two counts of criminal stalking in violation of § 646.9(a) pursuant to a plea of nolo contendere and sentenced him to 365 days of imprisonment with 224 days in credit.

After he served the remainder of his sentence, DHS took Orellana into custody. DHS served Orellana with a notice to appear (NTA), charging him with being removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of the crime of stalking after entry. Orellana conceded removability through counsel and sought cancellation of removal, which the IJ denied. On appeal to the BIA, Orellana moved to remand in light of an intervening decision in which the BIA had concluded that a § 646.9(a) offense is not a categorical match with the federal crime of stalking.¹ Matter of Sanchez-Lopez , 27 I. & N. Dec. 256 (B.I.A. 2018). DHS moved to remand to lodge a new charge of removability. On remand, DHS charged Orellana as removable as an alien convicted of two CIMTs not arising out of a single scheme of criminal misconduct. Orellana argued that DHS could not prove removability.² The IJ determined that a § 646.9(a) criminal stalking offense is categorically a CIMT and the two § 646.9(a) counts did not arise out of a single scheme of criminal misconduct. The BIA affirmed in an unpublished decision. Orellana timely petitioned for review.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252. With the exception of constitutional claims and questions of law, we lack jurisdiction to review a final order of removal against an alien who is removable for having committed two CIMTs not arising out of a single scheme of criminal misconduct when a sentence of one year or longer may be imposed on each offense.³ 8 U.S.C. §§ 1252(a)(2)(C), (D) ; Planes v. Holder , 652 F.3d 991, 998 (9th Cir. 2011). Whether a crime involves moral turpitude is a question of law that we review de novo. Navarro-Lopez v. Gonzales , 503 F.3d 1063, 1067 (9th Cir. 2007) (en banc), overruled in part on other grounds by , Ceron v. Holder , 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc). Questions of law include the application of law to undisputed or established facts. Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1067, 206 L.Ed.2d 271 (2020).

ANALYSIS

I. A § 646.9(a) Criminal Stalking Conviction is Categorically a CIMT

The threshold issue we must decide is whether the BIA erred in concluding that a § 646.9(a) criminal stalking offense is a CIMT. We have not addressed in a precedential decision whether a criminal stalking offense qualifies as a CIMT⁴ , nor are we aware of a decision by any of our sister circuits doing so.

To determine whether a § 646.9(a) conviction is a CIMT, our analysis "involves two steps, to which different standards of review apply." Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013) (citation, internal quotation marks, and brackets omitted), overruled in part on other grounds by , Ceron , 747 F.3d at 782 n.2. First, we determine the elements of the underlying crime, reviewing de novo because the BIA " ‘has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes.’ " Uppal v. Holder , 605 F.3d 712, 714 (9th Cir. 2010) (quoting Marmolejo-Campos v. Holder , 558 F.3d 903, 907 (9th Cir. 2009) (en banc)). If the BIA errs in determining the elements of the offense, "we owe its CIMT analysis at step two no deference." Hernandez-Cruz v. Holder , 651 F.3d 1094, 1106 (9th Cir. 2011). Second, we compare the elements of the statute of conviction with the federal definition of a CIMT. Fugow v. Barr , 943 F.3d 456, 458 (9th Cir. 2019) (per curiam). An offense is categorically a CIMT if, when looking only to the fact of conviction and the statutory definition of the offense, the full range of conduct the statute proscribes matches the generic definition of a CIMT. Galeana-Mendoza v. Gonzales , 465 F.3d 1054, 1057–58 (9th Cir. 2006). But "[i]f there is a ‘realistic probability’ that the statute of conviction would be applied to non-turpitudinous conduct, there is no categorical match." Fugow , 943 F.3d at 458. We defer to the BIA's conclusion at the second step "following the Chevron framework if the decision is published or directly controlled by a published decision[.]" Ceron , 747 F.3d at 778 ; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Skidmore framework applies "if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute)." Uppal , 605 F.3d at 714 ; see also Skidmore v. Swift & Co ., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). "If neither applies, we review de novo." Vasquez-Valle v. Sessions , 899 F.3d 834, 838 (9th Cir. 2018).

A. The Elements of California Penal Code § 646.9(a)

Pursuant to California law, one commits the crime of stalking if one "willfully, maliciously, and repeatedly follows, or willfully and maliciously harasses another person and ... 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[.]" Cal. Penal Code § 646.9(a).⁵ The offense has been distilled into three elements. People v. Uecker , 172 Cal.App.4th 583, 91 Cal. Rptr. 3d 355, 364 (2009) ; CALJIC 9.16.11 (jury instructions applicable to § 646.9(a) offenses committed after January 1, 2003).

The first element is "willfully, maliciously, and repeatedly follow[ing] or willfully and maliciously harass[ing] another person[.]" Cal. Penal Code § 646.9(a) (emphasis added); Uecker , 91 Cal. Rptr. 3d at 364. The statute defines the term "harasses" to be "engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." Cal. Penal Code § 646.9(e). Excluding "[c]onstitutionally protected activity," the statute defines "course of conduct" as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose." Id . § 646.9(f).

The second element is "mak[ing] a credible threat." Cal. Penal Code § 646.9(a) ; Uecker , 91 Cal. Rptr. 3d at 364. A "credible threat" is "a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct ...." Cal. Penal Code § 646.9(g). The threat must be "made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family." Id . "Constitutionally protected activity is not included within the meaning of ‘credible threat.’ " Id .

The third element is that a violator must make the 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." Cal. Penal Code § 646.9(a) ; People v. Falck , 52 Cal.App.4th 287, 60 Cal. Rptr. 2d 624, 629 (1997) (distinguishing the making of a credible threat from the "intent[ ] to place the victim in reasonable fear of his or her safety"); Uecker , 91 Cal. Rptr. 3d at 364 (same). "It is not necessary to prove that the defendant had the intent to actually carry out the threat." Cal. Penal Code § 646.9(g).

Orellana identifies no error at this step. Although the BIA did not analyze the statute extensively, the BIA correctly identified the statute of conviction and its text. The BIA also relied on our nonprecedential disposition in Raya-Moreno , which thoroughly reviewed the elements. Thus, we find no error. See Latter-Singh v. Holder , 668 F.3d 1156, 1160 (9th Cir. 2012) (finding no error when "the BIA's analysis is terse and exhibits ‘less than ideal clarity,’ " yet enables the court to reasonably discern the agency's path).

B. Comparison of § 646.9(a)'s Elements with the Federal Definition

We next compare the offense's elements with the federal definition of a CIMT to determine whether the offense is a categorical match. Fugow , 943 F.3d at 458. The INA does not define the term "crime involving moral turpitude." Id. at 457. We have observed that " ‘[m]oral turpitude’ is perhaps the quintessential example of an ambiguous phrase." Marmolejo-Campos , 558 F.3d at 909. We have...