25 I. & N. Dec. 670
BIA2012Background
- Respondent U. Singh, a native and citizen of India, was lawfully admitted for permanent residence in 2001.
- Convicted in California on April 22, 2005 of the felony stalking offense 646.9(b) with a sentence over one year.
- DHS initiated removal proceedings in 2010 based on crime involving moral turpitude.
- Immigration Judge found both following and harassing offenses under 646.9 and granted a section 212(h) waiver.
- DHS appealed; Board sustained the appeal and ordered removal.
- Court addresses whether the stalking offense is an aggravated felony and thus bars 212(h) relief, applying Board precedent and circuit antidotal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California stalking by harassing conduct is a crime of violence under 18 U.S.C. § 16(b). | Singh contends Malta controls and harassment stalking is a crime of violence. | DHS argues Malta-Espinoza undermines Malta and stalking is an aggravated felony. | No; stalking by harassing conduct is a crime of violence under §16(b). |
| Whether Matter of Malta should apply nationwide despite Malta-Espinoza and circuit boundaries. | Singh asserts Malta applies nationwide. | DHS argues Malta should not control outside Ninth Circuit after Malta-Espinoza. | Matter of Malta remains valid precedent outside the Ninth Circuit; not bound by Malta-Espinoza nationally. |
| Given post-Malta developments, does the stalking offense retain its §16(b) classification for §101(a)(43)(F) purposes? | Singh relies on Malta as updated by Leocal guidance. | DHS emphasizes subsequent statutory and Supreme Court guidance supporting substantial risk of force. | Stalking by harassment inherently presents substantial risk of intentional force, qualifying as a crime of violence under §16(b). |
Key Cases Cited
- Matter of Malta, 23 I&N Dec. 656 (BIA 2004) (stalking by harassment is a crime of violence under §16(b) and an aggravated felony)
- Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) (reversed Malta; casting doubt on nationwide application of Malta)
- Salazar, 23 I&N Dec. 223 (BIA 2002) (binding effect of Board precedent not dependent on circuit court action)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (focus on whether offense inherently involves substantial risk of force, not mens rea)
- Aguilar v. Att’y Gen. of U.S., 663 F.3d 692 (3d Cir. 2011) (crime of violence analysis centers on substantial risk of intentional force)
- James v. United States, 550 U.S. 192 (U.S. 2007) (proper inquiry is whether the ordinary conduct of the offense carries a substantial risk of injury)
- U.S. v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001) (cited for risk framework in violent-felony analysis)
- Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. 2007) (applies similar §16(b) analysis in context)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (discusses inherent risk of violence in related offenses)