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Matter of Jorge Isaac SANCHEZ-LOPEZ, Respondent
Decided April 20, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of stalking in violation of section 646.9 of the California Penal Code is not
“a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012),
overruled.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Overland Park, Kansas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy,
Associate Legal Advisor
BEFORE: Board Panel: GUENDELSBERGER and PAULEY, Board Members.
Dissenting Opinion: MALPHRUS, Board Member.
GUENDELSBERGER, Board Member:
This case is before us on remand from the United States Court of Appeals
for the Ninth Circuit for further consideration of the respondent’s
removability under section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an alien convicted of
a crime of stalking. The respondent’s appeal will be sustained and the
proceedings will be terminated.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Peru who was admitted to the
United States as a lawful permanent resident in 1993. On April 19, 2011,
he was convicted of stalking under section 646.9(b) of the California Penal
Code. 1 Based on this conviction, the Department of Homeland Security
1 Section 646.9 of the California Penal Code provides, 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, punishable by imprisonment in a
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(“DHS”) initiated removal proceedings against the respondent, charging him
with removability under section 237(a)(2)(E)(i) of the Act.2 On March 31,
2012, the Immigration Judge found the respondent removable and denied his
application for relief. We dismissed the respondent’s appeal in Matter of
Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), holding that the offense of
stalking in violation of section 646.9 of the California Penal Code is “a crime
of stalking” under section 237(a)(2)(E)(i) of the Act.
On January 28, 2014, the Ninth Circuit granted the Government’s
unopposed motion to remand so that we could reconsider our holding in
Matter of Sanchez-Lopez. On March 23, 2015, we reaffirmed our decision,
concluded that the respondent’s conviction is for a crime of stalking under
section 237(a)(2)(E)(i), and dismissed his appeal. On June 24, 2015, the
Ninth Circuit granted the Government’s second unopposed motion to remand
for us to further reconsider the respondent’s removability.
On remand, the respondent argues that his conviction for stalking in
violation of section 646.9 is not for a crime of stalking under section
237(a)(2)(E)(i) of the Act. The DHS counters that the respondent’s State
offense is a predicate for removal under that section of the Act.3 After further
consideration, we conclude that the respondent’s conviction under section
646.9 is not for a crime of stalking under section 237(a)(2)(E)(i). We will
therefore overrule Matter of Sanchez-Lopez and vacate our prior orders in
this case to the extent that they conclude otherwise.
county jail for not more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the
state prison.
(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.
. . . .
(g) For the purposes of this section, “credible threat” means a verbal or written
threat . . . 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 . . . .
2 The DHS also charged the respondent under section 237(a)(2)(A)(iii) of the Act, as an
alien convicted of an aggravated felony. However, the Immigration Judge declined to
sustain that charge, which is not the subject of this appeal.
3 The DHS made this argument in a supplemental brief, which it submitted in response to
our request to both parties for supplemental briefing. Although the respondent opposes the
DHS’s submission of its supplemental brief, we will consider it in the exercise of our
discretion. See 8 C.F.R. § 1003.3(c) (2017).
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II. ANALYSIS
Section 237(a)(2)(E)(i) of the Act provides that an “alien who at any time
after admission is convicted of . . . a crime of stalking . . . is deportable.” In
Matter of Sanchez-Lopez, 26 I&N Dec. at 74, we defined the “crime of
stalking” in section 237(a)(2)(E)(i) as an offense containing the following
elements: “(1) conduct that was engaged in on more than a single occasion,
(2) which was directed at a specific individual, (3) with the intent to cause
that individual or a member of his or her immediate family to be placed in
fear of bodily injury or death.”4 (Emphasis added.) Applying this generic
definition, we held that the offense of stalking under section 646.9 is
categorically a “crime of stalking” under section 237(a)(2)(E)(i).
Citing Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and United
States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), the Government
sought a remand in its second unopposed motion to allow us “to reconsider
whether there is a ‘realistic probability’ that California would apply section
646.9[] to conduct” falling outside the definition of a “crime of stalking”
outlined in Matter of Sanchez-Lopez. More precisely, the Government asked
us to reconsider whether there is a “realistic probability” that California
would apply section 646.9 to conduct committed with the intent “to cause
and [which] causes a victim to fear ‘safety’ in a non-physical sense.”
According to the Supreme Court, “to find that a state statute creates a
crime outside the generic definition of a listed crime in a federal statute” there
must be “a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition.”
Duenas-Alvarez, 549 U.S. at 193. The Ninth Circuit has explained that a
respondent “can show the requisite ‘realistic probability’” in two ways.
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015). First, he can
“point to his own case or other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which he argues.”
Id. (quoting Duenas-Alvarez, 549 U.S. at 193). Second, “if ‘a state statute
explicitly defines a crime more broadly than the generic definition, no “legal
imagination” is required to hold that a realistic probability exists that the state
will apply its statute to conduct that falls outside the generic definition of the
crime.’” Id. at 1009–10 (quoting Grisel, 488 F.3d at 850). Thus, “when a
‘state statute’s greater breadth is evident from its text,’ a [respondent] need
4 We also recognized that there is a fourth element involving the subjective and objective
consequences of the stalker’s conduct, “on which there is no clear consensus in the State
statutes.” Matter of Sanchez-Lopez, 26 I&N Dec. at 74. However, we declined “to resolve
the contours of the fourth element relating to the consequences of the conduct because”
section 646.9 requires proof “that both the targeted individual and a reasonable person in
the circumstances” was or would be “placed in fear of bodily injury or death.” Id.
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not point to an actual case applying the statute of conviction in a nongeneric
manner. [He or she] may simply ‘rely on the statutory language to establish
the statute as overly inclusive.’” Id. at 1010 (citations omitted).
In its motion, the Government has cited California and Ninth Circuit
cases in which the courts have declined to consider the victim’s “fear for his
or her safety or the safety of his or her family” under section 646.9 as being
limited to a fear of death or bodily injury. However, our survey of California
cases shows that the conduct prosecuted under section 646.9 invariably
involves statements and patterns of conduct that reasonably imply an intent
to cause the victim to either personally fear physical harm or fear such harm
to his or her family.5 Further, the California cases the Government cited in
its motion involved situations where the totality of the circumstances
surrounding the defendant’s conduct implied a threat against the physical
safety of the victim or his or her family.6
5 See, e.g., People v. Itehua, 173 Cal. Rptr. 3d 614, 617 (Ct. App. 2014) (holding that the
defendant’s pattern of behavior, including his repeated visits to the victim’s house without
permission, was “an implied threat that invited [the victim’s] resistance or escape” and thus
possible injury); People v. McPheeters, 159 Cal. Rptr. 3d 607, 618 (Ct. App. 2013)
(concluding that the defendant’s threats to beat the victim up and to shoot her “implied . . .
a credible threat based on defendant’s violent history and his pattern of conduct”); People
v. McCray, 67 Cal. Rptr. 2d 872, 881 (Ct. App. 1997) (finding that the defendant’s pattern
of past violent conduct toward the victim “tended to demonstrate both that [the defendant]
was capable of inflicting physical harm upon [his victim] and that [she] would have reason
to fear his threats might be carried out”); People v. Falck, 60 Cal. Rptr. 2d 624, 630–31
(Ct. App. 1997) (finding that the defendant’s letters to the victim could “be construed as a
threat to kill the victim or her husband” and “conveyed a credible threat” that gave her
“cause to fear him”).
6 See People v. Thimmes, No. NA076325, 2009 WL 2005598, at *4–5 (Cal. Ct. App.
July 13, 2009) (concluding that the victim’s fear for her own and her family’s safety was
reasonable where, among other things, the defendant threatened to “physically harm” her
husband); People v. Uecker, 91 Cal. Rptr. 3d 355, 366 (Ct. App. 2009) (holding that,
“[t]aken as a whole,” the defendant’s “pattern of unrelenting conduct over the course of
three weeks that toward the end became hostile and demanding” implied “a threat that
caused [the victim] to reasonably fear for her safety”); People v. Wigfall, No. 195789, 2006
WL 3365659, at *2–6 (Cal. Ct. App. Nov. 21, 2006) (finding that the defendant’s actions—
namely, following the victim to the bathroom, punching a hole in the bathroom door,
physically assaulting her, and persistently threatening to evict her—implied a threat to the
victim’s safety); People v. Theurer, No. 2003010002, 2005 WL 236761, at *3–4 (Cal. Ct.
App. Jan. 25, 2005) (finding that the defendant’s pattern of conduct, which “consisted of
harassing letters, phone calls, and visits,” was “intended to cause the victim to fear for her
safety”); People v. Zavala, 30 Cal. Rptr. 3d 398, 404 (Ct. App. 2005) (finding that the
defendant’s threat to kill his wife “caused [her] to reasonably fear for her safety”); People
v. Borrelli, 91 Cal. Rptr. 2d 851, 854, 862 (Ct. App. 2000) (upholding the judgment against
a stalker who threatened to kill the victim and her parents).
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Nevertheless, none of these California cases definitively settles whether
there is a “realistic probability” that section 646.9 would be applied to a
stalking offense committed with the intention of causing a victim to fear
nonphysical injury, either personally or to his or her family. We must
therefore examine whether “the statutory language” of section 646.9
establishes that “the statute [is] overly inclusive.” Chavez-Solis, 803 F.3d at
1010 (citation omitted) (internal quotation mark omitted).
In 1994, the California Legislature amended section 646.9 “to require that
the target of the threat need only fear for the target’s safety or that of his or
her family while deleting any requirement that the threat be ‘against the life
of, or [threaten] great bodily injury to’ the target.” People v. Zavala, 30 Cal.
Rptr. 3d 398, 404 (App. Ct. 2005) (emphasis added) (citation omitted).
Because the Legislature explicitly replaced the specific reference to death
or great bodily injury with the broader term “safety,” stalking offenses
committed with the intention of causing a victim to fear nonphysical injury,
either personally or to his or her family, may be prosecuted in California. We
therefore conclude, pursuant to Ninth Circuit law, that the statutory text of
section 646.9 establishes that there is a “realistic probability” that California
would apply the statute to conduct falling outside the definition of the “crime
of stalking” that we outlined in Matter of Sanchez-Lopez. See Chavez-Solis,
803 F.3d at 1009–10.
In addition to being overbroad, the term “safety” in section 646.9 is
“indivisible” relative to the definition of a “crime of stalking” in section
237(a)(2)(E)(i) of the Act. See Almanza-Arenas v. Lynch, 815 F.3d 469,
476–77 (9th Cir. 2016) (citing Descamps v. United States, 570 U.S. 254, 265
(2013)). As a result, we cannot resort to the record of conviction to determine
whether the respondent’s offense involved a threat that reasonably caused his
victim to fear death or bodily injury, either personally or to her family.
Although the DHS appears to concede that stalking under section 646.9
is “overbroad” relative to the definition we outlined in Matter of
Sanchez-Lopez, it asserts that we should broaden the definition of a “crime
of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary
standards. Specifically, it argues that we should redefine the term “stalking”
in the Act based on its commonly understood meaning, either in 2012 when
we decided Matter of Sanchez-Lopez, or based on the common elements of
State and Federal stalking statutes in 2017.
We recognize that the common elements of stalking have evolved since
section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of
States have broadened the term “stalking” to cover threats of nonphysical
harm in an effort to afford greater protections to their citizens against
stalkers. However, we are constrained to define offenses “based on the
‘generic, contemporary meaning’ of the statutory words at the time the
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statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009)
(quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter
of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the
decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272,
2281 (2016), which declined “to wind the clock back” to consider the
common law in discerning whether the provision at issue reached reckless
acts. But that case also looked to the legislative history and the “state-law
backdrop” that existed at the time the statute was enacted. Id. at 2280–82.
We are therefore unpersuaded to broaden the definition of the term “stalking”
under section 237(a)(2)(E) of the Act to encompass the most contemporary
understanding of that offense.
Upon reconsideration, we conclude that the offense of stalking in
violation of section 646.9 of the California Penal Code is not “a crime of
stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule
our decision in Matter of Sanchez-Lopez and vacate all prior orders in this
case to the extent they hold to the contrary. Accordingly, because the
respondent is not removable, his appeal will be sustained and the removal
proceedings will be terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.
DISSENTING OPINION: Garry D. Malphrus, Board Member
I agree with the majority that we must look to the generic definition of
“stalking” when Congress enacted section 237(a)(2)(E)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (Supp. II 1996). See Taylor
v. United States, 495 U.S. 575, 589–90, 598 (1990); see also Matter of
Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). In that respect, I disagree with
the Department of Homeland Security (“DHS”) that the Board is free to
adopt a generic definition without regard to the laws as they existed at the
time Congress added stalking as a removable offense in 1996. Modifying
legal definitions at will based on contemporary standards would conflict with
our duty to interpret statutory language consistent with congressional intent
at the time of a statute’s enactment. See Matter of Alvarado, 26 I&N Dec. at
897. However, I do agree with the DHS that the Board can and should define
the generic definition of stalking to include the California statute at issue in
this case. Therefore, I respectfully dissent.
While the differences in language among the State statutes makes precise
comparisons difficult, it appears that a majority of the States that had stalking
statutes in 1996 included as the key legal standard the victim’s reasonable
fear of bodily or physical injury or death to himself or herself or to a family
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member. However, there was no clear consensus among the States as to the
specific language and its scope. California and other State statutes referred
to a reasonable fear for one’s “safety”1 or a reasonable fear for personal or
physical safety,2 rather than a reasonable fear of bodily injury. Many other
States statutes employed a definition broader than fear of bodily injury or
fear for safety that would include fear of property damage3 or acts that would
cause a reasonable person to suffer, inter alia, emotional or mental distress.4
I agree with the majority that a generic definition of “stalking” must have
specific parameters, and I would not include all States that had stalking
statutes in 1996, given the significant disparity in how stalking was defined
by the various States at that time. However, the key point for our purposes
is that the generic definition that we provided in Matter of Sanchez-Lopez,
26 I&N Dec. 71 (BIA 2012), which was based on a fear of bodily injury or
death, is not substantially different from a fear for one’s safety, which some
of the States, including California, have incorporated in their definition of
stalking. In my view, a reasonable fear for one’s safety, which was included
in several State statutes at the time Congress added stalking as a removable
offense in 1996, should be part of the generic definition of stalking in section
237(a)(2)(E)(i) of the Act.
As a practical matter, the language in section 646.9 of the California Penal
Code regarding the victim’s “reasonable fear for his or her safety, or the
safety of his or her immediate family” is not significantly different from the
generic definition we adopted in Matter of Sanchez-Lopez. We could and
should amend that definition to include a reasonable fear for one’s safety or
that of a family member and thus find that section 646.9 is a categorical
match to the generic definition of stalking.5
1 See, e.g., Cal. Penal Code § 646.9 (West 1996); Colo. Rev. Stat. § 18-9-111(4) (1996);
Kan. Stat. Ann. § 21-3438(a) (1996).
2 See, e.g., Conn. Gen. Stat. § 53a-181d (1996); N.H. Rev. Stat. Ann. § 633:3-a (1996);
Or. Rev. Stat. § 163.732(c) (1996).
3 See, e.g., Haw. Rev. Stat. § 711-1106.5(1)(b) (1996); S.C. Code Ann. § 16-3-1700(B)(6)
(1996); Tex. Penal Code Ann. § 42.071(a)(2) (West 1996); Wash. Rev. Code.
§ 9A.46.110(1)(b) (1996).
4 See, e.g., Ala. Code §13A-6-92(c) (1996); Fla. Stat. § 784.048(1)(a) (1996); Ind. Code
35-45-10-2 (1996); Mich. Comp. Laws § 750.411h(1) (1996); Mo. Rev. Stat. Ann.
§ 565.225.1(3)–.2 (1996); Mont. Code Ann. § 45-5-220(1) (1996); Ohio Rev. Code Ann.
§ 2903.211(A) (West 1996); Okla. Stat. Ann. tit. 21, § 1173(F)(1) (West 1996); 18 Pa. Stat.
and Cons. Stat. Ann. § 2709(b)(2) (West 1996); Utah Code Ann. § 76-5-106.5(2)(a)(ii)
(West 1996); Vt. Stat. Ann. tit. 13, § 1061(1)(B) (West 1996); Wyo. Stat. Ann.
§ 6-2-506(a)(ii) (1996).
5 The definition we adopted in Matter of Sanchez-Lopez closely tracked the 1993 Model
Anti-Stalking Code, and we did not conduct a comprehensive survey of the relevant
Federal and State stalking statutes.
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As the majority has correctly concluded, a survey of California cases does
not show a realistic probability that a person would be prosecuted for conduct
that would involve a reasonable fear for one’s safety, but not a reasonable
fear of bodily injury or death. See Moncrieffe v. Holder, 569 U.S. 184, 191,
206 (2013) (stating that to show a “realistic probability,” it must be
demonstrated that the State “actually prosecutes” conduct outside the generic
definition of the crime). I agree with the majority that we cannot resolve the
respondent’s case on this ground, given the Ninth Circuit’s reliance on
statutory language to establish that a statute is overly inclusive, rather than
on any actual cases. But the lack of a realistic probability of prosecution
strongly indicates that the reasonable fear for one’s safety is not substantially
different from a reasonable fear of bodily injury or death, and it supports a
determination that fear for one’s safety should be included in the generic
definition of stalking.
Since 1996, many States have revised the scope of their stalking statutes
to provide greater protection for stalking victims. Congress has broadened
the Federal statute in 18 U.S.C. § 2261A (Supp. II 1996), which was first
enacted on September 23, 1996, and was in effect until October 27, 2000, so
that it now also includes substantial emotional distress to the victim. See
18 U.S.C. § 2261A (Supp. IV 2017). Even under the generic definition that
I would adopt, many stalking statutes may not be covered as a result of our
obligation to follow the categorical approach, as most recently explained in
Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States,
136 S. Ct. 2243 (2016). The Federal stalking statute and the State stalking
statutes that extend beyond a fear of bodily injury or safety, such as those
that include an intent to cause emotional distress, will often be found to be
overbroad. And, if they are indivisible, they would not be a categorical match
to section 237(a)(2)(E)(i) of the Act, even if we were to adopt my proposed
generic definition, which includes a reasonable fear for one’s safety.
However, under the definition that the majority applies today, it appears that
a very small number of States will be covered going forward. And these are
States that have not amended their laws to include the type of stalking
conduct that 18 U.S.C. § 2261A protects victims against today. Cf. Torres
v. Lynch, 136 S. Ct. 1619, 1628 (2016) (stating that Congress did not intend
to limit the application of the aggravated felony provisions of the Act in
manner that would produce “‘haphazard’—indeed, upside down coverage”
(citation omitted)).
As we noted in Matter of Sanchez-Lopez, 26 I&N Dec. at 75 n.5, there is,
in fact, no claim that the respondent’s conduct did not involve placing
the victim in fear for her physical safety. Applying the categorical and
modified categorical approaches at that time, we would not have been
precluded from considering, to some degree, the factual basis for the
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respondent’s conviction. See, e.g., United States v. Aguila-Montes de Oca,
655 F.3d 915, 935 (9th Cir. 2011) (en banc), abrogated by Descamps, 570
U.S. 254, and Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
The legal landscape has changed since we published our decision in
Matter of Sanchez-Lopez. This case illustrates the limitations of applying the
categorical approach imposed by the Supreme Court in Descamps and
Mathis to provisions of the immigration laws enacted by Congress for the
purpose of removing aliens convicted of serious criminal conduct. See
Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus,
concurring). Under this approach, only if section 646.9 is divisible can we
look to the respondent’s conviction records to determine if his conduct
involved an intent to cause the victim to fear death or bodily injury, as many
such stalking cases do. Because of this strict categorical approach, many
statutes that have since broadened the scope of protection for stalking victims
may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act.
As a result, in California and many other States, an alien who was criminally
convicted of stalking an innocent victim will not be removable under the Act,
even though the record makes clear that he or she committed “a crime of
stalking.” It is highly unlikely that Congress intended this result.