Malta-Espinoza

Malta-Espinoza v. Gonzales

Good Law
137 F. App'x 985
United States Court of Appeals for the Ninth CircuitJune 30, 2005No. 04-71140California402 words

Opinion

Lead Opinion

MEMORANDUM **

Fernando Malta-Espinoza (“Malta”) petitions for review of a Board of Immigration Appeals Order that affirmed an Immigration Judge’s (“IJ”) determination that Malta was removable under 8 U.S.C. § 1227 (a)(2)(A)(iii). This statute provides for the deportation of aliens who are convicted of an “aggravated felony” which includes a “crime of violence” as set forth in 18 U.S.C. § 16 . 8 U.S.C. § 1101 (a)(43)(F). Malta pleaded guilty to, inter alia, stalking while already subject to a prior restraining order, in violation of section 646.9(b) of the California Penal Code.

The issue before us is whether Malta’s offense is a crime of violence, 1 a question that we_ review de novo. See Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 939 (9th Cir.2004). This entails a two-step inquiry. First, we employ the “categorical approach” where we compare the elements of the statute of conviction to the generic definition of a crime of violence set forth in 18 U.S.C. § 16 . Chang v. I.N.S., 307 F.3d 1185, 1189 (9th Cir.2002). Under this *987 prong of the analysis, as both parties agree, stalking, as defined in Cal.Penal Code § 646.9, is not, categorically, a crime of violence.

Accordingly, we…

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