Aggravated Felonies

(H)  Stalking.  The BIA has held that a 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 in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b).[208]  However, both circuits to address this issue have held otherwise.[209]

Counsel may wish to argue (especially before the Ninth Circuit), that Malta was wrongly decided.  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) (emphasis added).  The term “safety” in the statute[210] is not limited to physical safety.[211]  The term also encompasses mental or emotional safety, and therefore is overbroad in including conduct that does not present a substantial risk of the use of physical force.  See § 5.30, supra.

[208] Matter of Malta, 23 I. & N. Dec. 656 (BIA Mar. 11, 2004).

[209] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking (“knowingly, willfully, maliciously, and repeatedly follows or harasses another person” in violation of a domestic violence protective order), in violation of Florida Statute § 784.048(4) (1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as “engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ,” under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury); United States v. Jones, 231 F.3d 508, 519-520 (9th Cir. Sept. 15, 2000) (California conviction of stalking, under Penal Code § 646.9(a) — “any person who willfully, maliciously, and repeatedly follows or 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 stalking — did not constitute a crime of violence because on its face the statute was not limited to physical injury).

[210] California Penal Code § 646.9(a) (“Any person who willfully, maliciously, and repeatedly follows or 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 . . . .”).

[211] People v. Borrelli, 77 Cal.App.4th 703, 719 (2000).