27 I. & N. Dec. 256
BIA2018Background
- Respondent (Peruvian LPR) was convicted in California in 2011 of stalking under Cal. Penal Code § 646.9(b).
- DHS charged him as removable under INA § 237(a)(2)(E)(i) as an alien convicted of a “crime of stalking.”
- BIA initially held in Matter of Sanchez-Lopez (2012) that § 646.9 matched the generic federal stalking offense (elements: repeated conduct, directed at a specific person, intent to cause fear of bodily injury or death).
- Ninth Circuit twice remanded for reconsideration; BIA reaffirmed then reconsidered again on remand.
- On reconsideration, BIA concluded § 646.9 is broader than the BIA’s earlier generic definition because California’s statute uses the term “safety,” which can encompass nonphysical harms.
- BIA overruled Matter of Sanchez-Lopez, held § 646.9 is not categorically a “crime of stalking” under INA § 237(a)(2)(E)(i), and ordered termination of removal proceedings.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Sanchez-Lopez) | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 646.9 categorically matches the INA § 237(a)(2)(E)(i) generic "crime of stalking" | § 646.9 is a predicate offense; California cases show application to threats implicating physical safety | § 646.9 requires fear of physical harm and thus fits the BIA’s generic stalking definition | No — § 646.9 is overbroad because it uses "safety," which can include nonphysical harms; not a categorical match |
| Whether there is a "realistic probability" California would prosecute nonphysical-fear conduct under § 646.9 | Argued some CA decisions decline to limit fear to bodily injury; asked BIA to reconsider realistic probability | Pointed to respondent’s conviction involving fear for physical safety | BIA: statutory text (substitution of "safety" in 1994 amendment) establishes realistic probability of broader application; indivisible term prevents record-based narrowing |
| Whether BIA may update its prior generic definition of "stalking" to reflect modern/state statutes | DHS urged broadening the generic definition to modern understandings to include "safety" | Respondent opposed; relied on original BIA definition requiring fear of bodily injury or death | BIA declined to broaden the generic definition beyond how Congress would have understood it in 1996; instead treated CA statute as overbroad |
| Whether the categorical/modified categorical approach permits resort to conviction record here | DHS argued § 646.9 overbreadth conceded but urged practical approach | Respondent relied on record showing physical-fear conduct | BIA held "safety" is indivisible relative to the federal definition, so cannot consult record to save the conviction under Descamps/Mathis framework |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (1995) (state statute matches generic federal crime only if no realistic probability statute would be applied to nongeneric conduct)
- United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (statutory text showing broader scope may establish realistic probability without specific state prosecutions)
- Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) (describes two ways to show realistic probability: actual prosecutions or statutory text breadth)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach and divisibility rules limit use of conviction records)
- Taylor v. United States, 495 U.S. 575 (1990) (use of generic, contemporary meaning for defining predicate offenses)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (useful for analyzing statutory meaning but looked to legislative history/state-law backdrop)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (realistic-probability standard requires actual prosecutions to demonstrate overbreadth)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (interpreting divisibility and limits on consulting conviction records)