This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)
Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.
Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.