Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)
BIA HEADNOTE:
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.
PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, MALPHRUS
OPINION BY: JUGE JOHN GUENDELSBERGER
DISSENTING OPINION: JUDGE GARRY D. MALPHRUS
KEY QUOTE FROM MAJORITY:
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
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.
KEY QUOTE FROM DISSENT:
The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis 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.
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I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”
My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.
The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!
He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.
PWS
04-20-18