MALTA

Cite as 

 (BIA 2004)                                  Interim Decision #3498




            In re Fernando MALTA-Espinoza, Respondent
                                File A92 717 834 - Eloy
                               Decided March 11, 2004
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

   A stalking offense for harassing conduct in violation of section 646.9(b) of the California
Penal Code, 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 

(b) (2000), and is therefore an aggravated felony under section
101(a)(43)(F) of the Immigration and Nationality Act, 

(a)(43)(F) (2000).

FOR RESPONDENT: Suzannah King Maclay, Esquire, Florence, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Sandra B. Myles, Assistant
Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and HESS, Board Members.

HESS, Board Member:

   In a decision dated June 25, 2003, an Immigration Judge found that the
respondent was removable as an alien convicted of an aggravated felony under
section 237(a)(2)(A)(iii) of the Immigration and Nationality Act,

(a)(2)(A)(iii) (2000), and was consequently ineligible for
cancellation of removal under section 240A(a)(3) of the Act, 8 U.S.C.
§ 1229b(a)(3) (2000).        The respondent has appealed, challenging the
Immigration Judge’s holding that his stalking offense under California law
constitutes a crime of violence under 

(b) (2000) and is therefore
an aggravated felony under section 101(a)(43)(F) of the Act, 

(a)(43)(F) (2000). We agree with the Immigration Judge and will dismiss
the appeal.
   The respondent was convicted on April 17, 2002, of violating section
 646.9(b) of the California Penal Code, which stated as follows:
    Any person who violates subdivision (a) when there is a temporary restraining order,
    injunction, or any other court order in effect prohibiting the behavior described in
    subdivision (a) against the same party, shall be punished by imprisonment in the state
    prison for two, three, or four years.



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(b) (West 2002). Section 646.9(a) of the California
Penal Code provided the following:
   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, punishable by imprisonment in a county jail for not more than one year or by
   a fine of not more than one thousand dollars ($1,000), or by both that fine and
   imprisonment, or by imprisonment in the state prison.

(a) (West 2002). Relevant statutory provisions defining
the terms in section 646.9 included the following:
   (e) For the purposes of this section, “harasses” means a knowing and willful course of
   conduct directed at a specific person that seriously alarms, annoys, torments, or
   terrorizes the person, and that serves no legitimate purpose. This course of conduct
   must be such as would cause a reasonable person to suffer substantial emotional
   distress, and must actually cause substantial emotional distress to the person.

   (f) For purposes of this section, “course of conduct” means a pattern of conduct
   composed of a series of acts over a period of time, however short, evidencing a
   continuity of purpose. . . .

   (g) For the purposes of this section, “credible threat” means a verbal or written threat,
   including that performed through the use of an electronic communication device, or a
   threat implied by a pattern of conduct or a combination of verbal, written, or
   electronically communicated statements and conduct made with the intent to place the
   person that is the target of the threat in reasonable fear for his or her safety or the safety
   of his or her family and made with the apparent ability to carry out the threat so as to
   cause the person who is the target of the threat to reasonably fear for his or her safety
   or the safety of his or her family. It is not necessary to prove that the defendant had the
   intent to actually carry out the threat.

(e)-(g) (West 2002).
     Section 646.9(a) of the California Penal Code, which defines the crime of
stalking, prohibits a person from following or harassing another person against
whom threatening behavior is directed. It is therefore a divisible statute, which
allows us to examine the record of conviction to determine under which part of
the statute the respondent was convicted. See Matter of Sweetser,

 (BIA 1999) (“Where a statute under which an alien was
convicted is divisible, we look to the record of conviction, and to other
documents admissible as evidence in proving a criminal conviction, to
determine whether the specific offense of which the alien was convicted will
sustain a ground of deportability.”). The respondent’s record of conviction
reveals that his conviction was for conduct involving harassing, rather than
following, another person.
    There are two distinct definitions of a crime of violence under 

. First, an offense is a crime of violence if it “has as an element the use,

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attempted use, or threatened use of physical force against the person or property
of another.” 

(a). Second, any other offense is a crime of
violence if it “is a felony . . . that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” 

(b). According to the United
States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case
arises, “‘[T]he force necessary to constitute a crime of violence [] must actually
be violent in nature.’” Sareang Ye v. INS, 

 (9th Cir. 2000)
(quoting Solorzano-Patlan v. INS, 

, 875 n.10 (7th Cir. 2000)).
Furthermore, the use of force must result from a volitional act that is at least
reckless in nature. United States v. Trinidad-Aquino, 

(9th Cir. 2001).
    We find that the respondent’s stalking offense is a crime of violence under

(b). The respondent’s crime was punishable by “imprisonment in
the state prison for two, three, or four years.” 

(b). As
a result, his conviction is for a felony. See 

(a) (West
2002); see also 

(a) (2000). In evaluating whether the offense
meets the other requirements for a crime of violence under 

(b),
we look at the generic elements of the offense to determine whether “‘its
commission would ordinarily present a risk that physical force would be used
against the person or property of another’ irrespective of whether the risk
develops or harm actually occurs.” Matter of Alcantar, 

 (BIA 1994) (quoting United States v. Marzullo, 

(W.D. Mo. 1991)).
    Applying this analysis, we find that a substantial risk of the use of force
exists when a person makes a credible threat that places another in fear for his
or her safety through a “course of conduct” of harassment that “seriously alarms,
annoys, torments, or terrorizes the person” and “would cause a reasonable
person to suffer substantial emotional distress.” 

(a),
(e). We acknowledge that it is possible to violate California’s stalking statute
without the use of force, such as through the use of a computer, a telephone, or
mail. See People v. Norman, 

 (Cal. Ct. App.
1999). Nevertheless, when a “course of conduct” that is both serious and
continuing in nature is coupled with a “credible threat” to another’s “safety,”1
there is a substantial risk that physical force may be used, at least recklessly,
over the duration of the commission of the crime. 

(a),

1
   Although the intent to create a fear for the “safety” of the victim or a family member is
not limited to his or her physical safety, it is the risk of the use of force by the perpetrator
during the harassment that is at issue. See United States v. Jones, 

(9th Cir. 2000) (citing People v. Borrelli, 

 (Cal. Ct. App. 2000), for
the proposition that section 646.9 does not require a fear for a person’s “physical safety”).
Because United States v. 

 appears to be inconsistent with a finding that
stalking is a crime of violence under 

(a) and may reflect that not all stalking
crimes will involve violence, we focus on § 16(b) and the “substantial risk” question.

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(e)-(f). The fact that the respondent violated the California stalking statute
despite the existence of a court order prohibiting the behavior demonstrates a
level of determination that further increases the severity of the interaction and
the risk of the use of physical force. See 

(b).
    Moreover, when a person engages in stalking, there is a substantial risk that
the individual being stalked will take exception and, as a result, cause the
perpetrator to use force in self-defense or to further effectuate the harassment.
In United States v. Becker, 

 (9th Cir. 1990), the Ninth Circuit
reasoned that a burglary offense was a crime of violence under 

(b), because “[a]ny time a burglar enters a dwelling with felonious or
larcenous intent there is a risk that in the course of committing the crime he
will encounter one of its lawful occupants, and use physical force against that
occupant either to accomplish his illegal purpose or to escape apprehension.”
See also United States v. M.C.E., 

 (9th Cir. 2000) (finding
that residential burglary is a crime of violence under 

, which
is “virtually identical” to 

, because of the substantial risk that
physical force may be used in committing the offense). Similarly, in United
States v. Pereira-Salmeron, 

 (9th Cir. 2003), the court
held that sexual contact with a minor “inherently” presents a risk that force will
be used to ensure the child’s compliance and is therefore a crime of violence
under the United States Sentencing Guidelines.
    The risk of confrontation that results in the use of force is even greater when
the crime involves harassment, as it does in this case. Unlike a burglary, where
an encounter may occur as a matter of happenstance during the commission of
an offense directed at someone’s property, harassment involves a “knowing and
willful course of conduct directed at a specific person that seriously alarms,
annoys, torments, or terrorizes the person, and . . . must actually cause
substantial emotional distress to the person.” 

(e). Not
only is such harassment likely to evoke a reaction, but it is frequently the intent
of the perpetrator to elicit a response from the victim. There is consequently
a substantial risk that the perpetrator, who initiated the harassment, will then
respond with physical force against the victim.
    Our conclusion is supported by the reported cases involving prosecution for
violation of California’s stalking statute, which involve the actual, or at least
reckless, use of force, or reflect that a substantial risk of the use of such force
was present. For example, in People v. Borrelli, 

 (Cal. Ct.
App. 2000), the defendant rear-ended the victim’s car while she was in it,
smashed his car into the building where she worked, stomped on her foot, and
kicked her. Likewise, in People v. Kelley, 

 (Cal. Ct. App.
1997), the defendant punched a hole in the victim’s front door and used his car
to force her to jump from her bicycle. Other similar cases are replete with
examples of the use of physical force. See, e.g., People v. McCray, 

 (Cal. Ct. App. 1997) (pushing the victim, putting a pillow over
her face after she pushed him back, and throwing her into a wall mirror when she
continued to resist); People v. Tran, 

 (Cal. Ct. App. 1996)

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(making repeated threats to the victim with a knife and a hammer, smashing car
windows, and chasing the victim’s husband and baby with a knife); People v.
McClelland, 

 (Cal. Ct. App. 1996) (ramming the front gate
of the victim’s home with a car and punching her in the face after she confronted
him).
    We find that the respondent’s stalking offense in violation of section
646.9(b) of the California Penal Code “by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the
course of committing the offense” and that such force will be used at least
recklessly. 

(b); see also United States v. 

 We therefore conclude that it is a crime of violence under 

(b) and, consequently, is an aggravated felony, which renders the respondent
removable. See sections 101(a)(43)(F), 237(a)(2)(A)(iii) of the Act.
Accordingly, the respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.




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