Miguel Orellana v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL ORELLANA, No. 19-70164
Petitioner,
Agency No.
v. A072-937-494
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020 *
Pasadena, California
Filed July 28, 2020
Before: MILAN D. SMITH, JR., JOHN B. OWENS, and
DANIEL A. BRESS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Owens
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ORELLANA V. BARR
SUMMARY **
Immigration
Denying Miguel Orellana’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that 1) a conviction for criminal stalking, in violation of
California Penal Code (CPC) § 646.9(a), is categorically a
crime involving moral turpitude (CIMT); and 2) the BIA
reasonably concluded that Orellana’s two § 646.9(a) counts
of conviction did not arise out of single scheme of criminal
misconduct, and therefore, made him removable.
Reviewing the statute of conviction de novo, the panel
first concluded that the BIA did not err in identifying the
elements of a § 646.9(a) offense. Next, comparing the
elements of the statute with the federal definition of a CIMT,
the panel concluded that the BIA did not err in concluding
that Orellana’s § 646.9(a) conviction is a CIMT. The panel
observed that this court has defined a CIMT as involving
either fraud or base, vile, and depraved conduct that shocks
the public conscience, and that CIMTs generally involve
some evil intent.
The panel explained that the BIA’s reliance on its
published decision in In re Ajami, 22 I. & N. Dec. 949(B.I.A. 1999), was not entitled to deference under Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984), because Ajami did not interpret § 646.9(a).
Nonetheless, the panel concluded that the BIA’s reliance on
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ORELLANA V. BARR 3
Ajami was entitled to deference under Skidmore v. Swift &
Co., 323 U.S. 134 (1944), explaining that: 1) in Ajami, the
BIA determined that the offense was a CIMT because it
involved transmission of threats, thus evincing a vicious
motive or a corrupt mind; and 2) § 646.9(a) prohibits
conduct that is materially identical to the offense in Ajami.
The panel also concluded that there was not a “realistic
probability” that the statute applies to conduct that is not
morally turpitudinous because all the conduct that § 646.9(a)
criminalizes is morally turpitudinous. The panel explained
that § 646.9(a) was more similar to the criminal threat statute
held to be a CIMT in Latter-Singh v. Holder, 668 F.3d 1156(9th Cir. 2012), than statutes this court has held are not
CIMTs. The panel explained that § 646.9(a), like the statute
in Latter-Singh, criminalizes only credible threats that cause
the targeted person to reasonably fear for his or her safety or
his or her family’s safety, threats made with the apparent
ability to carry out the threat, and threats specifically
intended to cause such fear in the targeted person. Further,
the panel concluded that, although § 646.9(a) does not
expressly require the threat of death or bodily injury (as does
the statute in Latter-Singh), the BIA was entitled to place
greater emphasis on the evil intent or corrupt mind required
by § 646.9(a).
The panel also held that the BIA reasonably concluded
that Orellana’s two § 646.9(a) counts of conviction did not
arise out of a single scheme of criminal conduct, and
therefore, made him removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii). The panel explained that the BIA’s
determination accorded with its precedential decision in
Matter of Adetiba, 20 I. & N. Dec. 506 (B.I.A. 1992), to
which the court accords Chevron deference. Further, the
panel upheld the BIA’s determination for the additional
4 ORELLANA V. BARR
reason that the conclusion aligned with this court’s decision
in Leon-Hernandez v. U.S. I.N.S., 926 F.2d 902 (9th Cir.
1991), which recognized a rebuttable presumption of
separate crimes created by the fact that the crimes were
committed on different dates.
Concurring, Judge Owens joined the majority opinion in
full because it correctly applied the law as it now stands, but
wrote separately to express his view that the court’s current
CIMT approach is, in the words of his Grandpa Harold,
“dumb, dumb, dumb.” He wrote that other judges share that
view and that a smarter (and more just) approach would be
to look to a more objective standard, such as the length of
the underlying sentence, before deciding if someone should
be removed.
COUNSEL
Rosana Kit Wai Cheung, Los Angeles, California, for
Petitioner.
Joseph H. Hunt, Assistant Attorney General; Stephen J.
Flynn, Assistant Director; Robert Michael Stalzer, Trial
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
ORELLANA V. BARR 5
OPINION
M. SMITH, Circuit Judge:
Petitioner Miguel Orellana is a native and citizen of El
Salvador who became a lawful permanent resident of the
United States. Decades after his admission to the United
States, he was convicted of two counts of criminal stalking
in violation of California Penal Code § 646.9(a) for which
he received a one-year term of imprisonment. In relevant
part, the Department of Homeland Security (DHS) charged
him with being removable as an alien who committed two
crimes involving moral turpitude (CIMT) not arising out of
a single scheme of criminal conduct after admission to the
United States. 8 U.S.C. § 1227(a)(2)(A)(ii). An
immigration judge (IJ) concluded that Orellana was
removable as charged. The Board of Immigration Appeals
(BIA) affirmed. Orellana petitioned for our review.
We hold that the BIA did not err in concluding that a
§ 646.9(a) criminal stalking conviction is a CIMT because a
§ 646.9(a) offense is categorically a CIMT. We hold further
that the BIA reasonably concluded that Orellana’s two
§ 646.9(a) counts of conviction did not arise out of a single
scheme of criminal misconduct. Thus, we deny the petition.
BACKGROUND
Orellana has resided in the United States since 1986. He
obtained lawful permanent resident status in 1997. Twenty
years later, a California state court convicted him in 2017 of
two counts of criminal stalking in violation of § 646.9(a)
pursuant to a plea of nolo contendere and sentenced him to
365 days of imprisonment with 224 days in credit.
6 ORELLANA V. BARR
After he served the remainder of his sentence, DHS took
Orellana into custody. DHS served Orellana with a notice to
appear (NTA), charging him with being removable pursuant
to 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of the
crime of stalking after entry. Orellana conceded
removability through counsel and sought cancellation of
removal, which the IJ denied. On appeal to the BIA,
Orellana moved to remand in light of an intervening decision
in which the BIA had concluded that a § 646.9(a) offense is
not a categorical match with the federal crime of stalking.1
Matter of Sanchez-Lopez, 27 I. & N. Dec. 256 (B.I.A. 2018).
DHS moved to remand to lodge a new charge of
removability. On remand, DHS charged Orellana as
removable as an alien convicted of two CIMTs not arising
out of a single scheme of criminal misconduct. Orellana
argued that DHS could not prove removability. 2 The IJ
determined that a § 646.9(a) criminal stalking offense is
categorically a CIMT and the two § 646.9(a) counts did not
arise out of a single scheme of criminal misconduct. The
BIA affirmed in an unpublished decision. Orellana timely
petitioned for review.
1
The BIA construed the federal crime of stalking in
§ 1227(a)(2)(E)(i) to require “the intent to cause that individual or a
member of his or her immediate family to be placed in fear of bodily
injury or death.” Matter of Sanchez-Lopez, 26 I. & N. Dec. 71, 76 (B.I.A.
2012). The BIA reversed its conclusion that § 646.9(a) is a categorical
match with that crime because § 646.9(a) is not textually limited to
threats of death or bodily injury. Matter of Sanchez-Lopez, 27 I. & N. at
260–61.
2
Orellana also moved to terminate proceedings for lack of
jurisdiction pursuant to Pereira v. Sessions, 138 S. Ct. 2105 (2018),
because the original NTA lacked the date and time of his first hearing.
The IJ denied that motion. Orellana did not appeal that denial to the BIA.
ORELLANA V. BARR 7
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252. With
the exception of constitutional claims and questions of law,
we lack jurisdiction to review a final order of removal
against an alien who is removable for having committed two
CIMTs not arising out of a single scheme of criminal
misconduct when a sentence of one year or longer may be
imposed on each offense. 3 8 U.S.C. §§ 1252(a)(2)(C), (D);
Planes v. Holder, 652 F.3d 991, 998 (9th Cir. 2011).
Whether a crime involves moral turpitude is a question of
law that we review de novo. Navarro-Lopez v. Gonzales,
503 F.3d 1063, 1067 (9th Cir. 2007) (en banc), overruled in
part on other grounds by, Ceron v. Holder, 747 F.3d 773,
782 n.2 (9th Cir. 2014) (en banc). Questions of law include
the application of law to undisputed or established facts.
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020).
ANALYSIS
I. A § 646.9(a) Criminal Stalking Conviction is
Categorically a CIMT
The threshold issue we must decide is whether the BIA
erred in concluding that a § 646.9(a) criminal stalking
offense is a CIMT. We have not addressed in a precedential
decision whether a criminal stalking offense qualifies as a
3
Our assessment of whether Orellana was removable as charged
pursuant to § 1227(a)(2)(A)(ii) collapses an assessment of jurisdiction
into the merits. Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1287 (9th Cir.
2004).
8 ORELLANA V. BARR
CIMT 4, nor are we aware of a decision by any of our sister
circuits doing so.
To determine whether a § 646.9(a) conviction is a CIMT,
our analysis “involves two steps, to which different
standards of review apply.” Castrijon-Garcia v. Holder,
704 F.3d 1205, 1208 (9th Cir. 2013) (citation, internal
quotation marks, and brackets omitted), overruled in part on
other grounds by, Ceron, 747 F.3d at 782 n.2. First, we
determine the elements of the underlying crime, reviewing
de novo because the BIA “‘has no special expertise by virtue
of its statutory responsibilities in construing state or federal
criminal statutes.’” Uppal v. Holder, 605 F.3d 712, 714 (9th
Cir. 2010) (quoting Marmolejo-Campos v. Holder, 558 F.3d
903, 907 (9th Cir. 2009) (en banc)). If the BIA errs in
determining the elements of the offense, “we owe its CIMT
analysis at step two no deference.” Hernandez-Cruz v.
Holder, 651 F.3d 1094, 1106 (9th Cir. 2011). Second, we
compare the elements of the statute of conviction with the
federal definition of a CIMT. Fugow v. Barr, 943 F.3d 456,
458 (9th Cir. 2019) (per curiam). An offense is categorically
a CIMT if, when looking only to the fact of conviction and
the statutory definition of the offense, the full range of
conduct the statute proscribes matches the generic definition
of a CIMT. Galeana-Mendoza v. Gonzales, 465 F.3d 1054,
1057–58 (9th Cir. 2006). But “[i]f there is a ‘realistic
probability’ that the statute of conviction would be applied
to non-turpitudinous conduct, there is no categorical match.”
4
In Zavaleta-Gallegos v. INS, 261 F.3d 951, 955 (9th Cir. 2001),
the alien petitioner conceded that his § 646.9 stalking offense, which
included a § 646.9(b) penalty, was a CIMT. Thus, we did not decide
whether the offense was a CIMT. More recently, a panel of our court
issued a nonprecedential disposition, which held that the BIA reasonably
concluded that a § 646.9(a) conviction is categorically a CIMT. Raya-
Moreno v. Holder, 504 F. App’x 589, 591 (9th Cir. 2013).
ORELLANA V. BARR 9
Fugow, 943 F.3d at 458. We defer to the BIA’s conclusion
at the second step “following the Chevron framework if the
decision is published or directly controlled by a published
decision[.]” Ceron, 747 F.3d at 778; see also Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984). The Skidmore framework applies “if the decision is
unpublished (and not directly controlled by any published
decision interpreting the same statute).” Uppal, 605 F.3d
at 714; see also Skidmore v. Swift & Co., 323 U.S. 134(1944). “If neither applies, we review de novo.” Vasquez-
Valle v. Sessions, 899 F.3d 834, 838 (9th Cir. 2018).
A. The Elements of California Penal Code § 646.9(a)
Pursuant to California law, one commits the crime of
stalking if one “willfully, maliciously, and repeatedly
follows, or willfully and maliciously harasses another person
and . . . 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[.]” Cal. Penal Code
§ 646.9(a). 5 The offense has been distilled into three
elements. People v. Uecker, 91 Cal. Rptr. 3d 355, 364 (Ct.
App. 2009); CALJIC 9.16.11 (jury instructions applicable to
§ 646.9(a) offenses committed after January 1, 2003).
The first element is “willfully, maliciously, and
repeatedly follow[ing] or willfully and maliciously
harass[ing] another person[.]” Cal. Penal Code § 646.9(a)
(emphasis added); Uecker, 91 Cal. Rptr. 3d at 364. The
statute defines the term “harasses” to be “engages in a
5
The statute contains other provisions that enhance the penalty for
a violation of § 646.9(a) depending on the presence of other factors. Cal.
Pen. Code § 646.9(b)–(c). A § 646.9(a) violation is a predicate for these
enhancements.
10 ORELLANA V. BARR
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.” Cal.
Penal Code § 646.9(e). Excluding “[c]onstitutionally
protected activity,” the statute defines “course of conduct”
as “two or more acts occurring over a period of time,
however short, evidencing a continuity of purpose.” Id.§ 646.9(f).
The second element is “mak[ing] a credible threat.” Cal.
Penal Code § 646.9(a); Uecker, 91 Cal. Rptr. 3d at 364. A
“credible threat” is “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 . . . .” Cal. Penal
Code § 646.9(g). The threat must be “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.” Id.“Constitutionally protected activity is not included within
the meaning of ‘credible threat.’” Id.The third element is that a violator must make the
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.” Cal. Penal Code § 646.9(a); People
v. Falck, 60 Cal. Rptr. 2d 624, 629 (Ct. App. 1997)
(distinguishing the making of a credible threat from the
“intent[] to place the victim in reasonable fear of his or her
safety”); Uecker, 91 Cal. Rptr. 3d at 364 (same). “It is not
necessary to prove that the defendant had the intent to
actually carry out the threat.” Cal. Penal Code § 646.9(g).
Orellana identifies no error at this step. Although the
BIA did not analyze the statute extensively, the BIA
ORELLANA V. BARR 11
correctly identified the statute of conviction and its text. The
BIA also relied on our nonprecedential disposition in Raya-
Moreno, which thoroughly reviewed the elements. Thus, we
find no error. See Latter-Singh v. Holder, 668 F.3d 1156,
1160 (9th Cir. 2012) (finding no error when “the BIA’s
analysis is terse and exhibits ‘less than ideal clarity,’” yet
enables the court to reasonably discern the agency’s path).
B. Comparison of § 646.9(a)’s Elements with the
Federal Definition
We next compare the offense’s elements with the federal
definition of a CIMT to determine whether the offense is a
categorical match. Fugow, 943 F.3d at 458. The INA does
not define the term “crime involving moral turpitude.” Id.
at 457. We have observed that “‘[m]oral turpitude’ is
perhaps the quintessential example of an ambiguous phrase.”
Marmolejo-Campos, 558 F.3d at 909. We have defined a
CIMT as involving “either fraud or base, vile, and depraved
conduct that shocks the public conscience.” Nunez v.
Holder, 594 F.3d 1124, 1131 (9th Cir. 2010) (internal
quotation marks and brackets omitted), superseded in other
part as stated by, Betansos v. Barr, 928 F.3d 1133, 1142 (9th
Cir. 2019). We have also explained that “[CIMTs] generally
involve some evil intent.” Castrijon-Garcia, 704 F.3d
at 1213 (citation and internal quotation marks omitted).
Notwithstanding our CIMT definition, we apply
“traditional principles of administrative deference” when the
BIA interprets an ambiguous INA phrase in its adjudication
of a particular case. Marmolejo-Campos, 558 F.3d at 910–
11. Here, the BIA relied on its precedential decision in In re
Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999) to conclude that a
§ 646.9(a) criminal stalking conviction is a CIMT. We
consider what deference is due.
12 ORELLANA V. BARR
1. No Chevron Deference is Due
Chevron deference does not apply here. Although Ajami
is a published BIA decision, that decision did not interpret
8 U.S.C. § 1227(a)(2)(A)(ii) as applied to a § 646.9(a)
offense. We do not accord Chevron deference in such
circumstances. Compare Escobar v. Lynch, 846 F.3d 1019,
1025 (9th Cir. 2017) (“Although the BIA’s unpublished
decision cites to published decisions, none interprets
8 U.S.C. § 1182(a)(2) as applied to California Penal Code
section 136.1, and thus none directly controls.”), with
Marmolejo-Campos, 558 F.3d at 911–12 (according
Chevron deference to an unpublished BIA decision that
relied on a prior published BIA decision addressing whether
the same Arizona statute was a CIMT).
2. Skidmore Deference is Due
Skidmore deference may nevertheless apply. “Pursuant
to Skidmore, a reviewing court ‘may properly resort’ to an
agency’s interpretations and opinions ‘for guidance,’ as they
constitute ‘a body of experience and informed judgment.’”
Garcia v. Holder, 659 F.3d 1261, 1266–67 (9th Cir. 2011)
(quoting Skidmore, 323 U.S. at 140). The measure of
deference varies “depend[ing] upon the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” Skidmore, 323 U.S. at 140. The BIA’s
analysis here was not extensive. That shortfall, however,
does not preclude Skidmore deference. An analysis of Ajami
leads us to conclude that the BIA properly relied on that BIA
decision to conclude that a § 646.9(a) offense is a CIMT.
In Ajami, the Michigan aggravated stalking offense at
issue criminalized “the making of 1 or more credible threats
ORELLANA V. BARR 13
against the victim, a member of the victim’s family, or
another individual living in the victim’s household.” 22 I. &
N. Dec. at 951 (quoting Mich. Comp. Laws Ann.
§ 750.411i(2)(c) (West 1996)). The statute defined “credible
threat” as “a threat to kill another individual or a threat to
inflict physical injury upon another individual that is made
in any manner or in any context that causes the individual
hearing or receiving the threat to reasonably fear for his or
her safety or the safety of another individual.” Id. (quoting
Mich. Comp. Laws Ann. § 750.411i(1)(b)). Referring to the
definition of stalking 6, the BIA observed that “[a] violator of
the statute must act willfully, must embark on a course of
conduct, as opposed to a single act, and must cause another
to feel great fear.” Id. at 952. Having previously held that
“threatening behavior can be an element of a [CIMT],” the
BIA determined that the offense was a CIMT because it
involved “the intentional transmission of threats,” thus
“evidenc[ing] [ ] a vicious motive or a corrupt mind.” Id.Section 646.9(a) prohibits conduct that is materially
identical to the aggravated criminal stalking offense in
Ajami. Both offenses require: (1) a “willful” pattern of
conduct, compare Cal. Penal Code § 646.9(a), (e)–(g), with
Mich. Comp. Laws Ann. § 750.411i(1)(a), (e); and (2) a
“credible threat,” compare Cal. Penal Code § 646.9(a), with
Mich. Comp. Laws Ann. § 750.411i(1)(b), (2)(c); that
(3) causes the targeted person to “reasonably fear for his or
her safety” or the safety of another individual, compare Cal.
6
The Michigan statute defined “stalking” to mean “a willful course
of conduct involving repeated or continuing harassment of another
individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested, and that
actually causes the victim to feel terrorized, frightened, intimidated,
threatened, harassed, or molested.” Ajami, 22 I. & N. Dec. at 951 (citing
Mich. Comp. Laws Ann. § 750.411i(1)(e)).
14 ORELLANA V. BARR
Penal Code § 646.9(a), (g), with Mich. Comp. Laws Ann.
§ 750.411i(1)(b). Thus, as in Ajami, a violator of the statute
at issue here “must act willfully, must embark on a course of
conduct, as opposed to a single act, and must cause another
to feel great fear.” 7 22 I. & N. Dec. at 951.
Orellana argues, however, that § 646.9(a) is materially
distinguishable from the aggravated stalking offense at issue
in Ajami. He argues first that § 646.9(a)’s statutory title does
not include the word “aggravated” and it is therefore a
materially different statute. We disagree. Although Ajami
acknowledged that Michigan law differentiated between
misdemeanor stalking and aggravated stalking, the feature
that differentiated these offenses was the latter’s “credible
threat” element. 22 I. & N. Dec. at 951–52. Like the
aggravated criminal stalking offense in Ajami, § 646.9(a)
contains a “credible threat” element.
Next, Orellana homes in on the “credible threat” element
of the offense at issue in Ajami. He observes that the
Michigan offense defined “credible threat” to mean “a threat
to kill another individual or a threat to inflict physical injury
upon another[.]” Mich. Comp. Laws Ann. § 750.411i(1)(b).
By contrast, § 646.9(a) is not limited to these specific
threats. Cal. Penal Code § 646.9(g). This difference,
however, does not render Ajami inapposite. Although Ajami
noted the specific threats that the Michigan offense covered,
Ajami’s CIMT determination did not turn on the type of
threats made. Indeed, Ajami observed that “[t]he threat of
7
Orellana also claims error on the ground that § 646.9(a) does not
use the phrase “great fear” or identify a requisite level of fear. This claim
rests on Orellana’s mistaken understanding that the reference to “great
fear” in Ajami was premised on statutory language requiring that level
of fear. The statute, however, did not include any such language. Thus,
there is no error on this ground.
ORELLANA V. BARR 15
violence, real or perceived, is almost always present in
[stalking] cases; tragically, it is far from unheard of for a
pattern of stalking to end in the stalker killing the stalked.”
22 I. & N. Dec. at 952 (quoting People v. White, 536 N.W.2d
876, 883 (Mich. Ct. App. 1995)). Rather than focusing on
the type of threats made, what made the criminal stalking
offense at issue in Ajami morally turpitudinous was the
“willful[],” “course of conduct” that “cause[d] another to
feel great fear,” combined with the “intentional transmission
of threats,” the latter of which evidenced a “vicious motive
or [] corrupt mind.” Id. As we have explained, § 646.9(a)
mirrors these features. Thus, the BIA’s reliance on Ajami to
determine that a § 646.9(a) criminal stalking conviction
constitutes a CIMT is entitled to Skidmore deference.
C. Section 646.9(a) Does Not Reach Non-
Turpitudinous Conduct
Although the BIA’s decision is entitled to Skidmore
deference, Orellana raises a more fundamental issue about
§ 646.9(a). He argues that § 646.9(a) reaches conduct that is
not so “truly unconscionable” that it “surpasses the threshold
of moral turpitude.” Robles-Urrea v. Holder, 678 F.3d 702,
708 (9th Cir. 2012). In his view, a § 646.9(a) conviction
“only requires a general threat,” thus creating “doubt” about
whether a § 646.9(a) conviction is a CIMT.
Doubt is not the standard that we apply to assess a claim
that a criminal statute does not categorically constitute a
CIMT. Orellana must establish that there is a “realistic
probability” that § 646.9(a) applies to conduct that is not
morally turpitudinous. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). This “requires more than the
application of legal imagination to a state statute’s
language.” Id. Orellana can show a realistic probability in
two ways. First, he can point to at least one other case in
16 ORELLANA V. BARR
which a state court applied the statute to non-turpitudinous
conduct. Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th
Cir. 2015). Second, he may rely on the statutory text alone.
“[W]hen a state statute’s greater breadth is evident from its
text, a petitioner need not point to an actual case applying
the statute of conviction in a nongeneric manner.” Id.
at 1010 (quotation marks omitted).
Orellana’s argument implicates the second approach,
and thus requires us to determine whether all the conduct that
§ 646.9(a) criminalizes is morally turpitudinous. When we
have not previously considered whether the offense at issue
is a CIMT, “our most useful guidance often comes from
comparing the crime with others that we have previously
deemed morally turpitudinous.” Nunez, 594 F.3d at 1131.
A comparison of three decisions with the statutory text of
§ 646.9(a) leads us to conclude that moral turpitude inheres
in all the conduct that § 646.9(a) criminalizes.
We start with our decision in Fernandez-Ruiz v.
Gonzales, 468 F.3d 1159 (9th Cir. 2006). There, we
considered whether two misdemeanor domestic assault
convictions pursuant to Arizona law categorically
constituted CIMTs. Id. at 1161. We concluded that the
statute of conviction was not a CIMT because (1) it did not
require a willful or intentional act, which “alone” rendered
the offense not a categorical match, id. at 1166–67, and (2) it
contained no element of injury at all, id. at 1167. We
summarized that “[a] simple assault statute which permits a
conviction for acts of recklessness, or for mere threats, or for
conduct that causes only the most minor or insignificant
injury is not limited in scope to crimes of moral turpitude.”
Id. (emphasis added). Similarly, in Uppal, we concluded
that an aggravated assault offense pursuant to Canadian law
did not constitute a CIMT because the offense required no
ORELLANA V. BARR 17
actual injury and no intent to inflict bodily injury. 605 F.3d
at 716.
Our decision in Latter-Singh v. Holder, 668 F.3d 1156(9th Cir. 2012), stands in stark contrast to our analysis in
Fernandez-Ruiz and Uppal. In Latter-Singh, we held that a
California Penal Code § 422 offense, which criminalized
threats to commit a crime that would result in the death or
great bodily injury to another person if carried out,
categorically constituted a CIMT. Id. at 1163. We explained
that § 422 criminalized:
(1) willfully threatening to commit a crime
that will result in death or great bodily injury
to another person; (2) specific intent that the
statement be taken as a threat; (3) the threat
was “on its face and under the circumstances
so unequivocal, unconditional, immediate,
and specific as to convey to the person
threatened, a gravity of purpose and an
immediate prospect of execution of the
threat”; (4) the threat “caused the victim to be
in sustained fear for his or her own safety or
for his or her immediate family’s safety”; and
(5) the “victim’s fear was reasonable under
the circumstances.”
Id. at 1160 (quoting People v. Jackson, 100 Cal. Rptr. 3d
539, 543 (Ct. App. 2009)).
We proffered three independent reasons for why the
offense was a CIMT. First, we explained that “the
underlying conduct threatened is itself a [CIMT],” and a
§ 422 conviction “require[d] both proof of the specific intent
to injure required of [CIMTs] as well as proof of a threat of
death or serious bodily injury made with the specific intent
18 ORELLANA V. BARR
that the victim believe the threat will be carried out.” Id. at
1161–62 (internal quotation marks and original alteration
omitted). Second, we determined that the statute
“criminalize[d] only that conduct which results in substantial
harm,” specifically noting “that the person threatened [must]
be in sustained fear or immediate danger to his or his
family’s safety.” Id. at 1162 (emphasis added). Finally, we
underscored that the statutory mens rea “constitute[d] the
evil intent” necessary for a CIMT, which, in that case, was
“[t]he intent to instill great fear of serious bodily injury or
death in another[.]” Id. at 1163.
Although we recognize that § 646.9(a) is not identical to
the § 422 threat offense that we considered in Latter-Singh,
we conclude that § 646.9(a) is more like that statute than the
statutes that we considered in Fernandez-Ruiz and Uppal.
Enacted in 1990, § 646.9 was the nation’s first criminal
stalking statute. People v. Carron, 44 Cal. Rptr. 2d 328, 332
(Ct. App. 1995). 8 The California Legislature enacted the
statute as a response to the shooting of an actress and the
murders of four Southern California women within a month
and a half, each of whom had obtained restraining orders and
communicated to their families that they believed they were
going to be killed. Id. “Existing criminal statutes were
inadequate,” including § 422. Id. (noting that “[s]ection 422
required an ‘unequivocal, unconditional, immediate’ threat
of death or great bodily injury”). Although § 646.9
contained the words “death or great bodily injury,” as
8
Nearly all states followed suit with California and enacted criminal
stalking statutes. See Note, Robert N. Miller, “Stalk Talk”: A First Look
at Anti-Stalking Legislation, 50 WASH. & LEE L. REV. 1303, 1303 & n.7
(1993) (explaining that 48 states, including Michigan, enacted criminal
antistalking statutes in the wake of California’s statute).
ORELLANA V. BARR 19
originally enacted, the California Legislature removed these
words in 1993 to “strengthen[]” the statute by focusing on “a
threat to a person’s safety.” Id. at 333.
Orellana implicitly recognizes that if the statute were still
limited to threats of death or great bodily injury, then the
statute would categorically be a CIMT. Latter-Singh would
compel that conclusion. We do not think, however, that the
absence of “death or great bodily injury” from § 646.9(a)
means that the statute criminalizes non-turpitudinous
conduct, such as mere threats.
Although § 646.9(a) is not limited to threats of death or
great bodily injury, it has material similarities with the
statute in Latter-Singh. Like the statute in Latter-Singh,
§ 646.9(a) “does not punish mere angry or emotional
speech,” People v. Halgren, 61 Cal. Rptr. 2d 176, 180 (Ct.
App. 1996), nor does it “encompass every kind of threat,”
People v. Borrelli, 91 Cal. Rptr. 2d 851, 861 (Ct. App. 2000).
See Latter-Singh, 668 F.3d at 1162 (observing that § 422
does not criminalize “emotional outbursts or mere angry
utterances or ranting soliloquies, however violent, but rather
proscribes a narrow category of speech that instills fear in
others” (citations, internal quotation marks and internal
alterations omitted)).
Instead, § 646.9(a) criminalizes only “true threats,”
which means threats that are “unambiguous and have such
immediacy that they convincingly express an intention of
being carried out.” Falck, 60 Cal. Rptr. 2d at 629. That
conclusion follows from § 646.9(a)’s elements which, when
read together, “limit[] its application to only such threats as
pose a danger to society[.]” Id. at 630. Like the statute in
Latter-Singh, § 646.9(a) proscribes only “credible threat[s]”
that cause the targeted individual to “reasonably fear for his
or her safety” or his or her family’s safety, those made with
20 ORELLANA V. BARR
“the apparent ability to carry out the threat,” and those
which the perpetrator specifically intends to cause such fear
in the targeted person. Cal. Penal Code § 646.9(g)
(emphasis added); see also Latter-Singh, 668 F.3d at 1162
(distinguishing Fernandez-Ruiz as lacking “a similar
requirement that the person threatened be in sustained fear
of immediate danger to his or his family’s safety.” (emphasis
in original)). This conduct is more like the conduct
proscribed by the § 422 threat offense that we deemed to be
categorically a CIMT in Latter-Singh than the conduct
proscribed by the simple assault offenses in Fernandez-Ruiz
and Uppal.
Further, “[t]he BIA has emphasized that ‘evil or
malicious intent is . . . the essence of moral turpitude,’ and,
therefore, one test ‘to determine if a crime involves moral
turpitude is whether the act is accompanied by a vicious
motive or a corrupt mind.’” Latter-Singh, 668 F.3d at 1161
(second alteration in original) (quoting In re Flores, 17 I. &
N. Dec. 225, 227 (B.I.A. 1980); then quoting Ajami, 22 I. &
N. Dec. at 950). We have affirmed that “[t]he BIA is entitled
to place great weight on the presence or absence of a mens
rea element when determining whether a crime involves
moral turpitude.” Id. at 1162 (emphasis added); see also
Castrijon-Garcia, 704 F.3d at 1213. Although § 646.9(a)
may not expressly require the threat of death or bodily
injury, the BIA was entitled to place greater emphasis on the
evil intent or corrupt mind that § 646.9(a) requires to
conclude that the statute proscribes conduct that is
categorically morally turpitudinous.
Pursuant to our review of the statutory text and in light
of our CIMT precedents, we conclude that § 646.9(a) does
not “plainly and specifically criminalize[] conduct outside
the contours of the federal definition” of a CIMT. Cerezo v.
ORELLANA V. BARR 21
Mukasey, 512 F.3d 1163, 1167 (9th Cir. 2008). By
extension, we conclude that a § 646.9(a) conviction is
categorically a CIMT.
II. The BIA Reasonably Concluded that Orellana’s Two
§ 646.9(a) Counts of Conviction Do Not Arise Out of
a Single Scheme of Criminal Misconduct
To be removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(ii), Orellana’s two counts of conviction
must also “not aris[e] out of a single scheme of criminal
misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii). The INA does
not define “single scheme of criminal misconduct.” Szonyi
v. Barr, 942 F.3d 874, 892 (9th Cir. 2019). We conclude that
the BIA’s interpretation of this phrase here was reasonable
for two reasons.
First, the BIA’s determination accords with its
precedential decision in Matter of Adetiba, 20 I. & N. Dec.
506, 509 (B.I.A. 1992), to which we accord Chevron
deference. Szonyi, 942 F.3d at 890. In Adetiba, the BIA
construed the phase to mean that an alien is removable
“when an alien has performed an act, which, in and of itself,
constitutes a complete, individual, and distinct crime, . . .
even though one may closely follow the other, be similar in
character, and even be part of an overall plan of criminal
misconduct.” 20 I. & N. Dec. at 509. Applying that
construction, the BIA determined that the alien there had
committed “separate and distinct crimes each time he used a
different credit card and obtained through its unauthorized
use” something of value. Id. at 512 (emphasis added). The
BIA reasoned that “[t]he use of additional cards did not flow
from and was not a natural consequence of a single act of
criminal misconduct,” noting that “[a]fter use of any one
credit card, the alien had the opportunity to dissociate
22 ORELLANA V. BARR
himself from his enterprise and reflect on what he had done.”
Id.
Here, the BIA relied in part on Adetiba to conclude that
Orellana was convicted of two CIMTs not arising out of a
single scheme of criminal misconduct. 9 Count 1 of the state
felony complaint involved Orellana willfully and
maliciously following and harassing one person between
June 1, 2015 and April 26, 2017. Count 2 involved the same
conduct by Orellana against a different person between
March 1, 2017 and April 26, 2017. Relying on Adetiba, the
BIA concluded that Orellana’s criminal offenses, which
occurred on different dates over different periods of time, did
not arise out of a single scheme. That was not a
misapplication of Adetiba. And, like the offenses at issue in
Adetiba, Orellana’s stalking in Count 1 was not a natural
consequence of Orellana’s stalking of a different person in
Count 2. 20 I. & N. Dec. at 512. He had the opportunity to
dissociate himself from stalking the first person before
stalking the second. Thus, the BIA reasonably determined
that Orellana’s two § 646.9(a) counts of conviction did not
arise out of single scheme of criminal misconduct pursuant
to Adetiba.
The BIA also relied in part on our decision in Leon-
Hernandez v. U.S. I.N.S., 926 F.2d 902 (9th Cir. 1991) to
conclude that Orellana’s two counts of conviction did not
arise out of a single scheme. In Leon-Hernandez, we
observed that the then-applicable statutory text provided that
“[a]n alien may be deported if ‘convicted of two crimes . . .
9
Orellana objects that the Government misstated Adetiba in its
briefing during removal proceedings. Our review, however, is of the
BIA’s decision, not the Government’s briefing before the BIA. See
8 U.S.C. § 1252.
ORELLANA V. BARR 23
regardless of whether the convictions were in a single
trial.’” Id. at 904 (quoting 8 U.S.C. § 1251(a)(4) (1988))
(emphasis and ellipsis in original). That text remains in the
provision. 8 U.S.C. § 1227(a)(2)(A)(ii). The BIA properly
recognized that Orellana’s simultaneous convictions did not
render the statute inapplicable.
Leon-Hernandez recognized a rebuttable “presumption
of separate crimes created by the fact that the crimes were
committed on different dates[.]” 926 F.2d at 905 (citing
Khan v. Barber, 253 F.2d 547, 549 (9th Cir. 1958), cert.
denied, 357 U.S. 920 (1958)). Because this presumption
applies “[i]n the absence of evidence of a more conscious,
coherent plan or program of future action, the BIA’s
determination that [the alien’s] crimes did not arise from a
single scheme of criminal misconduct is reasonable.” Id.(citation and internal quotation marks omitted). The
evidence before the BIA presumptively showed that
Orellana’s two § 646.9(a) counts of conviction did not arise
out of a single scheme because they occurred on different
dates. Orellana never argued to the BIA that his counts arose
out of a coherent plan or program, nor has he raised that
argument here. We therefore have no basis to consider that
issue. Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir.
2004) (holding that an appellate court lacks jurisdiction to
review issues not raised to the BIA). Accordingly, we
uphold the BIA’s determination that Orellana’s two
§ 646.9(a) counts of conviction did not arise out of single
scheme of criminal misconduct for the additional reason that
the conclusion aligns with our precedent.
CONCLUSION
We hold that a conviction for criminal stalking in
violation of California Penal Code § 646.9(a) is
categorically a CIMT. The BIA therefore did not err in
24 ORELLANA V. BARR
concluding that a § 646.9(a) conviction is a CIMT.
Furthermore, the BIA reasonably concluded that Orellana’s
conviction for two CIMTs did not arise out of a single
scheme of criminal misconduct. Accordingly, Orellana is
removable as charged pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(ii).
PETITION DENIED.
OWENS, Circuit Judge, concurring:
“Dumb, dumb, dumb!” my Grandpa Harold would
exclaim when I tried to explain a legal concept that made
little sense. I can only imagine what he would say about the
“CIMT” approach that case law currently compels us to
apply.
I do not have to imagine what other judges have said
about this approach. Like me, they think it is dumb, dumb,
dumb. See, e.g., Romo v. Barr, 933 F.3d 1191, 1199–1200
(9th Cir. 2019) (Owens, J., concurring) (listing cases where
judges from various circuits have criticized CIMT
jurisprudence).
We should avoid doing dumb things. Especially ones
that are dumb3.
A smarter (and more just) approach would be to “look to
a more objective standard, such as the length of the
underlying sentence, before deciding if someone should be
removed from our country.” Almanza-Arenas v. Lynch,
815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J.,
concurring, joined by Tallman, Bybee, and Callahan).
ORELLANA V. BARR 25
Nevertheless, duty sometimes demands the dumb thing,
so I join the majority opinion in full because it correctly
applies the law as it now stands.