Miguel Orellana v. William Barr, 967 F.3d 927

Petitioner Miguel Orellana, an El Salvador native and U.S. lawful permanent resident, was convicted (nolo contendere) of two counts of criminal stalking under Cal. Penal Code § 646.9(a) in 2017 and sentenced to one year (365 days).
DHS charged Orellana as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for committing two crimes involving moral turpitude (CIMTs) not arising out of a single scheme of criminal misconduct; an IJ and the BIA affirmed removability.
The BIA relied in part on its decision In re Ajami to conclude § 646.9(a) offenses are CIMTs; Orellana argued the statute reaches non-turpitudinous conduct and that his two convictions arose from a single scheme.
The Ninth Circuit reviewed the statutory elements de novo and the CIMT determination with deference principles (Chevron/Skidmore) as applicable.
The court held that a § 646.9(a) conviction is categorically a CIMT and that Orellana’s two counts did not arise out of a single scheme; petition for review denied. Concurring judge criticized the CIMT framework.

Issue	Orellana's Argument	Government's Argument	Held
Whether Cal. Penal Code § 646.9(a) is categorically a CIMT	§ 646.9(a) is broader than classic CIMTs and can reach mere/general threats or non-turpitudinous conduct	§ 646.9(a) requires willful, malicious repeated conduct, a "credible threat," and intent to instill reasonable fear—thus is a CIMT (BIA/ Ajami support)	§ 646.9(a) is categorically a CIMT; statute limits liability to "true/credible" threats with requisite mens rea, aligning it with CIMT precedents
Whether Ajami (BIA) decision merits Chevron deference	Ajami does not interpret § 646.9(a), so Chevron deference is inappropriate	BIA’s precedent informs the CIMT analysis	No Chevron deference; Ajami is entitled to Skidmore weight and is persuasive here
Whether Orellana’s two § 646.9(a) convictions arose from a single scheme of criminal misconduct	The convictions are related and thus should be treated as a single scheme (preventing removability on that basis)	Counts occurred on different dates/periods and are separate, distinct crimes (Adetiba/Leon‑Hernandez support)	Counts did not arise out of a single scheme—separate-date convictions create a rebuttable presumption of separateness; BIA’s conclusion reasonable

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency rulings entitled to weight based on persuasiveness)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (petitioners must show a realistic probability that a statute reaches non‑generic conduct)
Latter‑Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012) (California § 422 threats offense is categorically a CIMT)
Fernandez‑Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006) (simple assault statute not a CIMT where intent/injury elements lacking)
Leon‑Hernandez v. U.S. INS, 926 F.2d 902 (9th Cir. 1991) (presumption of separate crimes when offenses occur on different dates)
Fugow v. Barr, 943 F.3d 456 (9th Cir. 2019) (framework for comparing state statute elements to federal CIMT definition)
Marmolejo‑Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (BIA lacks special expertise to construe state criminal statutes)