Matter of U. SINGH, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided January 19, 2012
25 I&N Dec. 670 (BIA 2012)
Interim Decision #3738
(2) A stalking offense for harassing conduct in violation of section 646.9(b) of the California Penal Code is a crime of violence under
FOR RESPONDENT: Kira Murray, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam L. Berg, Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated February 7, 2011, an Immigration Judge found the respondent removable under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of India who was lawfully admitted for permanent residence on December 5, 2001. On April 22, 2005, he was convicted in California of the felony offense of stalking in violation
At his hearing, the respondent conceded that he was removable as charged and applied for a section 212(h) waiver. The parties stipulated that the respondent‘s removal would result in extreme hardship to his United States citizen mother and his lawful permanent resident father. The Immigration Judge found that the respondent was convicted of both following and harassing another person under section 646.9 of the California Penal Code, but he concluded that neither offense was an aggravated felony. He therefore decided that the respondent was eligible for a waiver of inadmissibility under section 212(h) of the Act and granted him relief as a matter of discretion. On appeal, the DHS argues that the respondent‘s stalking conviction is for an aggravated felony, and it precludes him from establishing eligibility for a section 212(h) waiver. We agree and will sustain the DHS‘s appeal.
II. ANALYSIS
Section 212(h) of the Act includes a proviso that states, “No waiver shall be granted . . . in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony.” The respondent was admitted as a lawful permanent resident in 2001, so the only question before us is whether he demonstrated that his subsequent conviction for stalking in violation section 646.9(b) of the California Penal Code is not for an aggravated felony.
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The Immigration Judge acknowledged our decision in Matter of Malta, 23 I&N Dec. 656 (BIA 2004), where we held that a stalking offense for harassing conduct in violation section 646.9(b) of the California Penal Code was a crime of violence under
We apply the law of the circuit in cases arising in that jurisdiction, but we are not bound by a decision of a court of appeals in a different circuit. Matter of Salazar, 23 I&N Dec. 223, 235 (BIA 2002). For example, in Salazar we considered whether to give nationwide application to the Ninth Circuit‘s decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), which overturned Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). We concluded that our interpretation of the statute at issue in Matter of Roldan was correct and declined to apply the Ninth Circuit‘s interpretation outside of that jurisdiction. Matter of Salazar, 23 I&N Dec. at 234-35.
Although the respondent argues that the Immigration Judge was bound by the Ninth Circuit‘s decision reversing Matter of Malta, he has not cited any court case that reaches this conclusion regarding Board precedent decisions. An important purpose of Board precedent is the establishment of a uniform interpretation of law in cases before the Immigration Judges and the Board. Whether a Board precedent is binding should not turn on the actions of the circuit court that happens to review the published decision. Indeed, if that were the case, then the opposite should also be true: if a court of appeals affirms a Board precedent, it should then be binding in all other circuits. But that is clearly not the case. This is not to say that Congress could not create such a system, only that it has not done so.
The respondent‘s reliance on
Several important developments subsequent to our decision in Matter of Malta warrant discussion. The first involves amendments to section 646.9 of the California Penal Code that occurred after the conviction in that case. At the time the alien in Matter of Malta committed his offense, California‘s stalking statute provided in relevant part as follows:
(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who 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 is guilty of the crime of stalking . . . .
(b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.
. . . .
(e) For the purposes of this section, “harasses” means 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. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
(f) For the purposes of this section, “course of conduct” means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.
(g) For the purposes of this section, “credible threat” means 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, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and 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 of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat.
After 2002, the definition of “harasses” in section 646.9(e) was shortened by deleting the sentence requiring “substantial emotional distress” to the victim. However, the elimination of this part of the definition does not change our analysis of the statute, because emotional distress is not a requisite component of the substantial risk of physical force to a person or property necessary to establish a crime of violence under
Furthermore, after our decision was issued, the Supreme Court developed its line of jurisprudence regarding crimes of violence. Following that authority, we continue to consider our analysis in Matter of Malta to be sound. We will accordingly review the Immigration Judge‘s decision regarding the respondent‘s case in this light.
As the Immigration Judge found, the respondent was convicted of both following and harassing his victim. The California statute is divisible, see Matter of Malta, 23 I&N Dec. at 657, but as the Immigration Judge noted, there was no argument that the crime of following under section 646.9 is a crime of violence. Therefore we focus, as did the Immigration Judge, on the crime of harassment under section 646.9 of the California Penal Code.
Section 101(a)(43)(F) of the Act provides that an offense is an aggravated felony if it is “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” In turn,
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In Matter of Malta, we held that the respondent was convicted of stalking in the form of harassing conduct and determined that the offense was a crime of violence under
The Ninth Circuit reversed our decision, holding that stalking by harassing conduct under section 646.9 of the California Penal Code could not be considered a crime of violence under
The dissenting judge in that case agreed with our conclusion that the offense of stalking by harassing conduct involves a substantial risk that physical force will be used. Malta-Espinoza v. Gonzales, 478 F.3d at 1085-88 (Duffy, J., dissenting). He noted that stalking is a more personal crime than burglary, where the offender generally intends to avoid facing the occupants of the dwelling. Id. at 1086. By contrast, stalkers often seek a sense of power or control over the victim, usually through fear. Id. To bolster this conclusion, the dissenting judge cited national stalking statistics, which indicated the following: 46% of stalking victims experience one or more violent incidents by the stalker, 29% of stalkers vandalize the victim‘s property, and 9% of stalkers kill or threaten to kill the victim‘s family pets. Id. at 1087. Further, he pointed out that the physical distance of a stalker from his victim is not a reliable indicator of violence. Id. at 1087-88. He emphasized this point by noting that the impetus for the California stalker law was the case of a man who became obsessed with an actress living hundreds of miles away, but who one day traveled to her home and shot and killed her on her front step. Id. at 1088. He therefore concurred with our conclusion that a violation of section 646.9 was a crime of violence under § 16(b).
Subsequent to our decision in Matter of Malta, the United States Supreme Court offered guidance on the meaning of
covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16(b) relates not to the general conduct or to the possibility that harm will result from a person‘s conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under § 16(b) not because the offense can
be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.
Id. at 10 (footnote omitted). Thus, the critical inquiry is not the mens rea required for conviction of a crime, but rather whether the offense, by its nature, involves a substantial risk that the perpetrator will use force in completing its commission.
The Third Circuit recently explained that “the takeaway from Leocal is its instruction to focus the § 16(b) analysis on whether the crime, by its nature, raises ‘a substantial risk’ of ‘the use of force,’ and not on the crime‘s mens rea.” Aguilar v. Att‘y Gen. of U.S., 663 F.3d 692, 697 (3d Cir. 2011) (citation omitted) (quoting Leocal v. Ashcroft, 543 U.S. at 10 n.7). Leocal teaches “that crimes carrying a mens rea of recklessness may qualify as crimes of violence under § 16(b) if they raise a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime.” Id. at 699 (emphasis added). In Aguilar, which involved a sexual assault offense, the court stated that the question presented was “whether non-consensual sexual intercourse, by its nature, creates a substantial risk that the actor will intentionally use physical force against the victim.” Id. at 701 (citing Tran v. Gonzales, 414 F.3d 464, 471 (3d Cir. 2005) (stating that “§ 16(b) crimes are those raising a substantial risk that the actor will intentionally use force in the furtherance of the offense“) (internal quotation mark omitted)). Concluding that the offense qualified as a crime of violence, the Third Circuit stated:
Just as a burglary creates a substantial risk that the burglar will have to use physical force to overcome the desire of home occupants to protect themselves and their property, so too does a sexual assault . . . , by its nature, create a substantial risk that the assailant will use physical force to overcome a victim‘s desire to protect his or her body from non-consensual sexual penetration.
Similarly, “when a person engages in stalking, there is a substantial risk that the individual being stalked will take exception and, as a result, cause the perpetrator to use force in self-defense or to further effectuate the harassment.” Matter of Malta, 23 I&N Dec. at 659. Thus, as is the case with burglary and sexual assault, stalking a victim through harassing conduct creates a substantial risk that the perpetrator will intentionally use physical force in completing the crime. See Aguilar v. Att‘y Gen. of U.S., 663 F.3d at 702 (stating that the “substantial risk involved in sexual assault . . . is that, to achieve non-consensual penetration, the offender will intentionally use force to overcome the victim‘s natural resistance against participating in unwanted intercourse“).
We note that unlike both the sexual assault crime in Aguilar, which required only a minimum mens rea of recklessness, and the offense of driving under the influence in Leocal, where the standard was less than recklessness, stalking by harassment under section 646.9 of the California Penal Code requires proof that the perpetrator “willfully and maliciously” harassed the victim by engaging in a “knowing and willful course of conduct.” We emphasize, however, that the focus in assessing whether an offense is a crime of violence under § 16(b) is not on the mens rea of the crime itself but is, instead, on whether there is a substantial risk that the perpetrator will resort to intentional physical force in the course of committing the crime. We conclude that such a risk of the intentional use of force is inherent in a violation of section 646.9.
Furthermore, in determining this risk, the proper inquiry is not whether physical force must always be used, but rather whether the conduct encompassed by the elements of the offense presents a substantial risk of the use of physical force in the ordinary case. Matter of Ramon Martinez, 25 I&N Dec. 571, 574 (BIA 2011). We are instructed in this regard by James v. United States, 550 U.S. 192, 196 (2007), where the Court considered whether attempted burglary was a “violent felony” under the residual clause of
[t]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent
crime might not present a genuine risk of injury—for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets. Or . . . one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses . . . are categorically nonviolent.
Id. (emphasis added) (citation omitted).
Although the statute at issue in James v. United States is different from
In Matter of Malta, 23 I&N Dec. at 659, we held that harassment is “likely to evoke a reaction” from the victim and that the perpetrator “will then respond with physical force against the victim.” We illustrated this observation by citing several examples of California stalking prosecutions where the use of force was present. These actual prosecutions indicate that in the ordinary case of stalking under California law, there is a risk of confrontation inherent in harassment that results in the perpetrator‘s use of force against the victim. Therefore they substantiate our conclusion that the California crime of stalking satisfies the requirements of
Finally, there is additional support for this conclusion in Sykes v. United States, 131 S. Ct. 2267, 2272-73 (2011), where the Supreme Court considered whether a violation of Indiana‘s vehicle flight statute constituted a violent felony under
Having considered the Ninth Circuit‘s decision in Malta-Espinoza v. Gonzales, as well as Supreme Court and other circuit court authority, we respectfully conclude that our decision in Matter of Malta is correct, and we will continue to adhere to our precedent in cases arising outside of the Ninth Circuit. Applying Matter of Malta to the respondent‘s case, we hold that his stalking offense for harassing conduct in violation section 646.9(b) of the California Penal Code involved a substantial risk of the intentional use of physical force during the course of its commission and, consequently, is a crime of violence under
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The respondent is ordered removed from the United States to India.