504 F. App'x 589
9th Cir.2013Background
- Raya-Moreno, a Mexican citizen, petitions for review of a BIA order dismissing his appeal from an IJ removal order.
- BIA found Raya-Moreno removable under INA § 237(a)(2)(A)(ii) based on two convictions for crimes involving moral turpitude: stalking (Cal. Penal Code § 646.9(a)) and sexual battery (Cal. Penal Code § 243.4(a)).
- Raya-Moreno challenges only whether § 646.9(a) is categorically a crime involving moral turpitude; he also seeks cancellation of removal and waiver relief that the BIA allegedly denied in its exercise of discretion.
- Raya-Moreno was convicted in 1995 of stalking under § 646.9(a), which requires malicious intent and a 'course of conduct' directed at a specific person that seriously alarms or torments the victim and a credible threat to safety.
- BIA relied on In re Ajami, 22 I. & N. Dec. 949 (BIA 1999), to categorize stalking under § 646.9 as categorically a CIMT, noting the pattern of conduct and mens rea involve moral turpitude.
- The opinion holds that the BIA’s moral-turpitude holding is entitled to deference and that Raya-Moreno is removable; the court lacks jurisdiction to review the discretionary denials of cancellation and § 212(c) waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 646.9(a) categorically a CIMT? | Raya-Moreno contends § 646.9(a) is not categorically a CIMT. | BIA held that § 646.9(a) is categorically a CIMT, based on Ajami and the statute’s pattern-of-conduct and mens rea. | Yes; § 646.9(a) is categorically a CIMT, with deference to BIA's Ajami-based ruling. |
| Whether the court may review the BIA's denial of cancellation of removal and § 212(c) waiver. | Raya-Moreno asserts due-process and wrongful discretion in weighing equities. | BIA denied relief in its discretion; this court lacks jurisdiction to review discretionary denials. | Jurisdiction barred; court cannot review discretionary denials of cancellation or § 212(c) waiver. |
Key Cases Cited
- In re Ajami, 22 I. & N. Dec. 949 (BIA 1999) (stalking statute pattern and mens rea support CIMT classification)
- People v. Halgren, 61 Cal. Rptr. 2d 176 (Cal. Ct. App. 1996) (credible-threat requirement distinguishes stalking from harassment)
- Bazua-Cota v. Gonzales, 466 F.3d 747 (9th Cir. 2006) (equities weighing as discretionary; due-process claims limited)
- Bermudez v. Holder, 586 F.3d 1167 (9th Cir. 2009) (per curiam; abuse-of-discretion framing for discretionary relief challenges)