Criminal Defense of Immigrants


§ 22.29 (B)

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(B)  Stalking as an Aggravated Felony Crime of Violence.  A stalking conviction might or might not be considered to be a crime of violence aggravated felony, and so should be analyzed under that ground of deportation as well as under the domestic violence ground.  See § 22.6(B), supra.


                The Eleventh Circuit held a Georgia conviction of aggravated stalking[135] 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)).[136]  The Ninth Circuit held a California stalking conviction not to constitute a crime of violence aggravated felony, although it would trigger deportation as a domestic violence conviction.[137]  Similarly, the Fifth Circuit held a Florida stalking conviction not to constitute a crime of violence aggravated felony.[138]  The court reasoned that on its face, the statute, and in turn the elements of the offense, do not require any use, or threatened or attempted use, of physical force, and there are forms of harassment that necessarily do not by their nature involve conduct that presents a serious risk of physical harm. For example, harassment could be mere repetitive phone calls or suicide threats, and when an indictment is silent as to the offender’s actual conduct, as it is here, the court must proceed under the assumption that the noncitizen’s conduct constituted the “least culpable act satisfying the count of conviction.”[139]

[135] G.S.A. § 16-5-91.

[136] United States v. Esquivel-Arellano, 208 Fed.Appx. 758, 2006 U.S. App. LEXIS 29538 (11th Cir. Nov. 30, 2006).

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

[138] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking [after being subject to a domestic violence protective order, “knowingly, willfully, maliciously, and repeatedly follows or harasses another person”], 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).

[139] United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004).



Ninth Circuit

Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007) (California conviction of stalking, in violation of Penal Code 646.9, did not constitute aggravated felony crime of violence under categorical or modified categorical analysis, but not discussing whether this offense constituted "stalking" within the meaning of the domestic violence ground of deportation, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).)

     The argument that the stalking ground of deportation implicitly requires a protected victim, while the California stalking offense does not, appears weak. The statute defining the DV deportation ground expressly requires certain protected victims for the crime of domestic violence, and for the child abuse, abandonment, or neglect ground, but the stalking ground does not. The government could argue that this was an intentional omission by Congress. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same statute, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."). Thanks to Lory Rosenberg.