Matter of Malta, 23 I&N Dec. 656 (BIA March 11, 2004) (California conviction of stalking based on harassing conduct in violation of Penal Code 646.9(b), which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. 16(b) (2000), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) (2000), for immigration purposes).
http://www.usdoj.gov/eoir/vll/intdec/lib_vol23idxnet.html Note: This case, many feel, was wrongly decided. While it may be reasonable to conclude that an offense under this statute involves a substantial risk that harm or even death may occur, there is nothing in the language of the statute indicating that "physical force . . . may be used in the course of committing the offense," as is required under 18 U.S.C. 16(b). The term "safety" in the statute is not limited to physical safety. People v. Borrelli, 77 Cal.App.4th 703, 719 (2000). The term thus encompasses mental or emotional safety, as well as physical safety. The statute therefore does not require as an element that violence be used in the commission of the offense, and does not present a substantial risk of that occurrence. The BIA has recognized that "criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission." Matter of Puente, Int. Dec. 3412 (BIA 1999). This offense may involve a substantial risk of harm, but does not necessarily involve a substantial risk that violence will be used. See also United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (conviction for stalking under the California Penal Code not a "crime of violence" so as to merit an increase in base level offense under Sentencing Guidelines).