INA §237(a)(2)(E)(i): Stalking Convictions

Congress listed a crime of stalking alongside crimes of domestic violence and child abuse. The stalking clause does not require that the victim be a spouse or family member.

The defense should therefore analyze the stalking conviction independently rather than import domestic relationship requirements that belong to a different part of the subparagraph.

The INA does not simply accept any state offense named stalking. BIA and circuit precedent determine the generic immigration concept that the state statute must match.

State statutes vary in required intent, fear, harassment, threat, course of conduct, and protected interests. Those differences can make the statute categorically broader.

The elements of the state statute are compared with the federal immigration definition. A court should not classify the conviction based solely on a police narrative describing frightening conduct.

If the statute is divisible, the modified categorical approach may identify the statutory alternative. If indivisible and overbroad, the conviction may not support the charge.

Some statutes require a credible threat or fear of bodily injury, while others reach broader harassment, emotional distress, monitoring, or unwanted contact. The minimum criminalized conduct matters.

Research the exact statutory version and state appellate decisions. An older federal case interpreting a previous version of the statute may not resolve a later conviction.

Stalking laws differ in whether they require intent, knowledge, recklessness, or another mental state regarding the prohibited course of conduct or resulting fear. Immigration precedent can turn on that distinction.

The defense memorandum should quote the mens rea element rather than describe the respondent's actual motive unless the categorical framework permits that inquiry.

Many stalking statutes require repeated conduct, but the threshold for repetition and the type of conduct included vary. The federal immigration definition must be matched to the offense elements as a whole.

One broad element can make the state offense overinclusive even if the respondent's actual conduct would have satisfied a narrower federal concept.

For stalking deportability, the defense should obtain certified criminal court records rather than rely on a rap sheet or case summary. The charging document, plea or verdict, judgment, sentencing order, and later modification orders can answer different immigration questions. The record may identify a divisible alternative but should not be used to rewrite the minimum elements of an indivisible statute.

Keep discretionary evidence and categorical offense classification in separate sections of the file.

INA §237(a)(7) permits waiver of the stalking ground for qualifying respondents who were battered or subjected to extreme cruelty and were not the primary perpetrator, when additional statutory conditions are met.

A stalking conviction should therefore trigger an immediate §237(a)(7) screening even when the offense involved a nontraditional or complicated relationship.

A legally effective vacatur or plea withdrawal can remove the conviction predicate, while rehabilitation based relief may not. The basis for the criminal court action should be documented.

If the criminal statute was amended or the conviction reduced, counsel should re-run the categorical analysis against the new final disposition.

A sustained stalking deportability charge does not answer every relief question. Counsel should separately review cancellation, adjustment, waivers, asylum related protection, withholding, Convention Against Torture protection, VAWA remedies, post conviction options, and any other relief supported by the respondent's status and history. The same conduct may also be relevant to CIMT, protection order, aggravated felony, or discretionary questions depending on the statute and sentence.

The §237(a)(7) waiver should be considered alongside broader removal relief, not as the only possible remedy.

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruled the Board's earlier treatment of California Penal Code §646.9 and held that the offense did not match the federal immigration stalking ground.

The decision is a reminder that an offense actually titled stalking can still be overbroad under the federal generic definition.

Some statutes require fear for safety, some include emotional distress, and others reach harassment without a threat of physical harm. Those differences can determine whether the state offense matches the federal immigration category.

The defense should quote the minimum result element recognized by state courts rather than rely on the facts alleged in the police report.

State laws differ on how many acts create a course of conduct and what kinds of contact count. Telephone calls, electronic monitoring, following, social media contact, or presence near a location may be treated differently.

Those statutory details should be compared with the federal generic stalking concept under current BIA and circuit precedent.

Unlike the crime of domestic violence definition, the stalking clause does not condition removability on a spouse, co-parent, cohabitant, or other domestic relationship.

Relationship evidence may still matter to the §237(a)(7) waiver, but it is not a threshold element of the stalking ground itself.

A single course of conduct can produce both a stalking conviction and a protection order determination, but the INA analyzes them differently. Stalking is conviction based; protection order removability uses the Obshatko court-determination framework.

Each theory should receive its own statutory and evidentiary analysis.

DHS will point to the stalking conviction and argue that the state statute fits the federal immigration meaning recognized in Matter of Sanchez-Lopez. The response should move immediately to the minimum conduct required by the state statute: the mental state, the required course of conduct, and the type of fear or harm the statute reaches.

Facts describing disturbing behavior may explain the prosecution, but categorical analysis asks what the statute necessarily required for conviction. State appellate decisions defining the least culpable conduct can therefore be more important than the police narrative when the statutory elements are broader than the federal generic offense.

A useful stalking file includes the statute and definitions in effect at conviction, state appellate decisions construing its mental state and course of conduct requirements, the charging instrument, plea or verdict, judgment, and any conviction record needed if the statute is divisible. Protective orders may matter to a separate §237(a)(2)(E)(ii) theory but should not be used to rewrite the elements of the stalking conviction.

The file should also identify controlling circuit precedent on the generic stalking definition. That legal research often determines whether fear, emotional distress, repeated communications, or other state alternatives extend beyond the immigration category.

Stalking under §237(a)(2)(E)(i) does not require the same proof as a protection order violation, and it does not acquire a domestic relationship element merely because the victim was a spouse or partner. A single course of conduct can generate several charges, but each ground must stand on its own statutory requirements.

The conviction may also be analyzed as a crime involving moral turpitude or affect discretionary relief. Those questions should be identified separately so a categorical victory on stalking is not mistaken for a complete resolution of the immigration case.

The title of the offense is not the federal immigration definition. State statutes vary in the required mental state, the number of acts, the nature of the threatened or feared harm, and whether conduct causing only emotional distress is enough. Those differences can make the statute broader than the generic category.

A second mistake is to assume stalking must involve a domestic partner. Section 237(a)(2)(E)(i) lists stalking separately from a crime of domestic violence, so the relationship question that matters in a domestic violence case is not automatically part of the stalking analysis.

The most efficient brief can divide the state statute into three comparisons: what mental state is required, what constitutes a course of conduct, and what response or harm must be caused or intended. Matter of Sanchez-Lopez and controlling circuit cases should then be applied to each feature rather than discussed at a high level.

If the statute lists alternative ways to commit stalking, determine whether those alternatives are elements before consulting the conviction record. This keeps the legal comparison disciplined and prevents case specific allegations from filling a gap in the statutory elements.

The Immigration Judge should decide whether the statute of conviction categorically matches the federal immigration meaning of stalking or, if the statute is divisible, whether the permitted record establishes a matching alternative. The analysis should identify the required mens rea, repeated conduct, and fear or harm component expressly.

Any separate protection order, domestic violence, or moral turpitude charge should receive its own ruling. Keeping those theories distinct makes clear which conviction based ground has actually been sustained and which factual materials were relevant to that determination.

The final stalking review should confirm the statute in effect on the conviction date, the state decisions interpreting its least conduct, the completeness of the conviction record, and the controlling federal definition in the circuit. Particular attention should be paid to alternatives involving emotional distress, indirect communications, reckless conduct, or minimal repeated acts if state law recognizes them.

Any §237(a)(7) waiver theory should be developed independently with the evidence relevant to victimization. That alternative should not obscure the threshold question whether the stalking conviction fits §237(a)(2)(E)(i) at all.

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruled the Board’s earlier 2012 Sanchez-Lopez decision. The Board held that California Penal Code §646.9 is not categorically a “crime of stalking” under INA §237(a)(2)(E)(i) because the state statute reaches conduct broader than the federal generic definition.

Any analysis relying on Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), must therefore identify that decision as historical and overruled. Counsel should apply the current 2018 decision and any controlling circuit authority to the specific statute of conviction.