(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).[519]  However, all circuits to address this issue have held otherwise.[520]  See § § 22.6, 22.29, infra.

 

The Ninth Circuit held that the BIA decision in Malta was wrongly decided. [521]  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[522] is not limited to physical safety.[523]  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 § 19.30, supra.

 

[519] Matter of Malta, 23 I. & N. Dec. 656 (BIA Mar. 11, 2004), rev’d sub nom. Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007).

[520] United States v. Esquivel-Arellano, 208 Fed.Appx. 758, 2006 U.S. App. LEXIS 29538 (11th Cir. Nov. 30, 2006) (unpublished) (Georgia conviction of aggravated stalking, in violation of G.S.A. § 16-5-91, prohibits a wide range of conduct and does not categorically constitute a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii)); 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).

[521] Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code § 646.9, did not constitute an aggravated felony crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), as defined by 18 U.S.C. § 16(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).

[522] 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 . . . .”).

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

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FORCIBLE SEXUAL CONTACT
United States v. Rosas-Pulido , 526 F.3d 829 (5th Cir. May 2, 2008) (Minnesota conviction for unlawful sexual contact, in violation of M.S.A. 609.345(1)(c), punishing use of "force or coercion to accomplish" sexual contact is not a "forcible" sex offense for illegal re-entry sentencing purposes as the minimum conduct punishable under the statute includes a 14 year old giving a nipple twister to a classmate, an offense that does not involve forcible compulsion), citing In Re DLK, 381 N.W.2d 435, 436 (Minn. 1986) (nipple twister case).

Eighth Circuit

AGGRAVATED FELONY - CRIMES OF VIOLENCE - ASSAULT ON POLICE OFFICER
United States v. Reyes-Solano, F.3d 543 F.3d 474 (8th Cir. Sept. 26, 2008) (Mississippi convictions for domestic assault and assault on a police officer were not categorically "crimes of violence" (defined as including twelve enumerated offenses (none at issue in this case), "or any other federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another."), so as to justify a four-level sentence enhancement under USSG 2L1.2(b)(1)(E) for illegal reentry after deportation, because "Absent state court records identifying the offense of conviction, from which the elements of that offense may be determined, the testimony of Reyes-Solano at sentencing is not sufficient proof that actual, attempted, or threatened use of force was an element of the offense and not merely conduct incidental to an offense whose essential elements did not include the use of force. Accordingly, on this record the four-level increase under 2L1.2(b)(1)(E) was improperly imposed.")

Ninth Circuit

AGGRAVATED FELONY " CRIMES OF VIOLENCE " KIDNAPPING
United States v. Marquez-Lobos, 683 F.3d 1061 (9th Cir. Jun. 19, 2012) (Arizona conviction of kidnapping, under Arizona Revised Statute 13-1304, is affirmed where it categorically meets the generic definition of "crime of violence" in U.S.S.G. 2L1.2(b)(1)(A), for purposes of imposing a 16-level sentence enhancement for illegal reentry).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. Aug. 29, 2008) (California conviction of robbery, in violation of Penal Code 211, constituted crime of violence under USSG 2L1.2(b), because the elements of the offense meet the generic definition of "extortion," one of the enumerated crimes of violence; California Penal Code 211 is does not categorically meet the generic definition of "robbery."), distinguishing United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) (holding California robbery, under Penal Code 211, constituted a crime of violence under USSG 4B1.2 commentary language as well as 18 U.S.C. 16(b), covering any felony that involved a "substantial risk" that physical force may be used "against the person or property of another", a definition broader than the definition contained in 4B1.2 alone, which identified only those crimes presenting a substantial risk of physical injury to another person (not to property).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - EXTORTION - CRIME OF MORAL TURPITUDE - EXTORTION
United States v. Becerril-Lopez, 528 F.3d 1133 (9th Cir. Jun. 12, 2008) (generic definition of extortion: "obtaining something of value from another with is consent induced by the wrongful use of force, fear, or threats."; extortion includes threats to property and non-immediate danger), citing Scheidler v. Natl Org. for Women, Inc., 537 U.S. 393, 409 (2003).

AGGRAVATED FELONY - CRIME OF VIOLENCE - POSSESSION OF SAWED OFF SHOTGUN
United States v. Crampton, 510 F.3d 1108 (9th Cir. Dec. 20, 2007) (Oregon conviction for possession of a sawed off shotgun, in violation of Or. Rev. Stat. 166.272(1), is a crime of violence for purposes of the Armed Career Criminal Act).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).

Lower Courts of Ninth Circuit

CAL CRIM DEF " SAFE HAVENS " MALICIOUS WITNESS DISSUASION " CRIME OF VIOLENCE " CRIMES OF MORAL TURPITUDE " REALISTIC PROBABILITY OF PROSECUTION
People v. Wahidi, 222 Cal.App.4th 802, 807, 166 Cal.Rptr.3d 416 (2d Dist. Dec. 30, 2013) (defendants request that victim and defendant settle their dispute by Islamic mediation, rather than a criminal case, was held to be both knowing and malicious, within the meaning of the malicious witness dissuasion statute, Penal Code 136.1(a)(2), even though the defendant did not demand the victim drop the charges or threaten any violence: There is no substantial evidence that Wahidi intended to vex, annoy, harm, or injure Khan when Wahidi approached Khan in the mosque. But the evidence does show that Wahidi intended to thwart or interfere in any manner with the orderly administration of justice by convincing Khan not to testify at the preliminary hearing the next day. Under the definition of malice in section 136, Wahidi maliciously attempted to dissuade Khan from testifying.") (emphasis added). Note. Under this decision, California law now defines Penal Code 136.1(a)(2) as including conduct such as a civilized request to resolve an issue according to religious belief and conscience that in no sense of the word involves an element of violence (18 U.S.C. 16(a) or by its nature creates a substantial risk of violence (18 U.S.C. 16(b)). This offense therefore does not constitute an aggravated felony crime of violence. In addition, the conduct here is not depraved, and does not involve an intent to vex, annoy, harm, or injure another. It should therefore not be considered a crime of moral turpitude. It includes conduct motivated solely by religious belief and conscience. This sufficiently establishes a realistic probability of prosecution under this statute for non-removable conduct to prevent a conviction for violating this statute from constituting an aggravated felony crime of violence or crime involving moral turpitude. Thanks to Daniel G. DeGriselles.

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - CALIFORNIA ROBBERY DID NOT QUALIFY AS GENERIC ROBBERY UNDER GUIDELINES
United States v. Servin-Acosta, 534 F.3d 1362 (10th Cir. Jul. 30, 2008) (California conviction for robbery, in violation of Penal Code 211, is not categorically a generic "robbery" offense, and thus a crime of violence, under USSG 2L1.2(b), for illegal re-entry sentencing purposes; Penal Code 211 is broader than generic robbery in that it includes the use of force in escaping after the taking has occurred), agreeing with United States v. Becerril-Lopez, 528 F.3d 1133, 1140-42 (9th Cir. 2008).