Arriaga v. Mukasey, No. 07-1148 (2d Cir. 2008)

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07-1148-ag Arriaga v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: December 13, 2007 Decided: March 27, 2008) Docket No. 07-1148-ag - - - - - - - - - - - - - - - - - - - -X NELSON ARRIAGA, Petitioner, - v.MICHAEL B. MUKASEY,1 Respondent. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges. Petition for review of the BIA s final order of 29 removal, dismissing petitioner s appeal from an immigration 30 judge s decision ordering removal, pursuant to INA § 31 237(a)(2)(E)(i), on the basis of petitioner s conviction for 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as respondent in this case. 1 the offense of stalking. 2 removal statute is not unconstitutionally vague, on its face 3 or as applied to petitioner. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The stalking provision of the The petition is denied. RAMIRO ALCAZAR, Meriden, Connecticut, for Petitioner. JAMES A. HUNOLT, Senior Litigation Counsel, Officer of Immigration Litigation, Civil Division, United States Department of Justice (Peter D. Keisler, Assistant Attorney General, and John P. Devaney, Trial Attorney, on the brief), Washington, D.C., for Respondents. DENNIS JACOBS, Chief Judge: Nelson Arriaga ( Arriaga ) petitions for review of a 20 final order of removal of the Board of Immigration Appeals 21 ( BIA ). 22 decision of the Immigration Judge ( IJ ) Paul M. Gagnon, 23 which sustained Arriaga s removability under the subsection 24 of the Immigration and Nationality Act ( INA ) that renders 25 deportable any alien convicted of stalking. 26 § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) ( the INA 27 stalking provision ). 28 Feb. 28, 2007), aff g No. A74 913 575 (Immig. Ct. Hartford 29 Nov. 29, 2006). 30 stalking under Connecticut s penal code, but he argues that The BIA dismissed Arriaga s appeal from the See INA In re Arriaga, A74 913 575 (B.I.A. Arriaga concedes that he was convicted of 2 1 the INA stalking provision, which does not define 2 stalking, is unconstitutionally vague, on its face and as 3 applied. 4 impression in the courts of appeals. This challenge presents a question of first 5 BACKGROUND 6 7 Arriaga, a native and citizen of Honduras, was admitted 8 to the United States as a lawful permanent resident in 2000. 9 In October 2004, Arriaga pled guilty in Connecticut Superior 10 Court to stalking in the second degree under Connecticut 11 General Statutes § 53a-181d(a): 12 13 14 15 16 17 18 19 20 A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety. In March 2006, the Immigration and Naturalization 21 Service ( INS ) commenced removal proceedings against 22 Arriaga pursuant to INA § 237(a)(2)(E)(i), which provides: 23 Any alien who at any time after admission is convicted of a 24 crime of domestic violence, a crime of stalking, or a crime 25 of child abuse, child neglect, or child abandonment is 26 deportable. 27 The INS added a second charge of deportability pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added). 3 1 INA § 237(a)(2)(A)(i), which provides for the removal of an 2 alien convicted of a crime involving moral turpitude 3 committed within five years after the date of admission. 4 See 8 U.S.C. § 1227(a)(2)(A)(i). 5 At his hearing in July 2006, Arriaga conceded the 6 conviction, but argued that the offense was insufficiently 7 violent or depraved to justify removal under the applicable 8 statutes. 9 was one of moral turpitude. The IJ ruled Arriaga removable because his crime But in October 2006, the BIA, 10 citing the IJ s failure to provide reasons and bases for 11 his conclusion, remanded for the IJ to prepare a full 12 decision. 13 The IJ s November 2006 post-remand decision found that 14 Arriaga is removable under both grounds charged by the INS. 15 As to stalking, undefined in the INA, the IJ looked to the 16 law dictionary and decided that the common law and the 17 Connecticut statute criminalize the same type of behavior: 18 that of following another individual with the intent of 19 causing him or her harm or to fear harm. 20 accordingly found that Arriaga s Connecticut conviction 21 qualified as a conviction for a crime of stalking under the 22 INA. 23 turpitude because it entails predatory and inherently 24 threatening conduct. The IJ The IJ also ruled that stalking involves moral 4 1 In February 2007, the BIA affirmed the removal order 2 and dismissed the appeal, stating: [I]nasmuch as 3 [Arriaga s] conviction is clearly a crime of stalking, we 4 find no error in the Immigration Judge s conclusion that he 5 is deportable pursuant to section 237(a)(2)(E)(i). 6 declined to consider whether Arriaga is also deportable for 7 having been convicted of an offense involving moral 8 turpitude. 9 jurisdiction to consider Arriaga s argument that the INA The BIA The BIA recognized that the agency lacks 10 stalking provision is unconstitutionally vague. See Matter 11 of Fuentes-Campos, 21 I. & N. Dec. 905, 912 (BIA 1997); 12 Matter of C-, 20 I. & N. Dec. 529, 532 (BIA 1992); see also 13 Zerrei v. Gonzales, 471 F.3d 342, 345 n.3 (2d Cir. 2006) 14 (per curiam). 15 DISCUSSION 16 17 On this appeal, Arriaga challenges only the 18 constitutionality of the INA stalking provision, arguing 19 that the provision is void for vagueness on its face, and as 20 applied in his case, because it does not define the word 21 stalking. 22 a statutory provision. 23 Inc., 498 U.S. 479, 493 (1991); Field Day, LLC v. County of 24 Suffolk, 463 F.3d 167, 176 (2d Cir. 2006). We review de novo constitutional challenges to See McNary v. Haitian Refugee Ctr., 5 1 It is a basic principle of due process that an 2 enactment is void for vagueness if its prohibitions are not 3 clearly defined. 4 104, 108 (1972). 5 requires that a penal statute define the criminal offense 6 [1] with sufficient definiteness that ordinary people can 7 understand what conduct is prohibited and [2] in a manner 8 that does not encourage arbitrary and discriminatory 9 enforcement. 10 Grayned v. City of Rockford, 408 U.S. [T]he void-for-vagueness doctrine Kolender v. Lawson, 461 U.S. 352, 357 (1983). The void for vagueness doctrine is chiefly applied to 11 criminal legislation. Laws with civil consequences receive 12 less exacting vagueness scrutiny. 13 Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 14 498-99 (1982) (expressing greater tolerance of enactments 15 with civil rather than criminal penalties because the 16 consequences of imprecision are qualitatively less 17 severe. ); Chatin v. Coombe, 186 F.3d 82, 86-87 (2d Cir. 18 1999) (scrutinizing closely a prison regulation 19 prohibiting religious services because its penalties were 20 more akin to criminal than civil penalties); see also Jordan 21 v. De George, 341 U.S. 223, 231 (1951) (reviewing 22 deportation provision for vagueness because of the grave 23 nature of the penalty of forfeiting one s residence). 6 See Vill. of Hoffman The 1 statute reviewed in Jordan v. De George was an earlier 2 version of the same section of the INA at issue here 3 (specifically, the subpart authorizing deportation for 4 crimes involving moral turpitude). 5 that this statute does not declare certain conduct to be 6 criminal and that [i]ts function is to apprise aliens of 7 the consequences which follow after conviction and 8 sentence. 9 drastic measure, the Court assessed the statute for Id. at 230. The Court emphasized However, because deportation is a 10 vagueness as if it imposed a criminal penalty. Id. at 230- 11 31 (internal quotation marks and citation omitted); see also 12 Restrepo v. McElroy, 369 F.3d 627, 635 n.16 (2d Cir. 2004) 13 ( deportation, like some other kinds of civil sanctions, 14 combines an unmistakable punitive aspect with non-punitive 15 aspects ). 16 provision should be assessed as a civil or criminal statute 17 because even under the close scrutiny accorded criminal 18 laws, Arriaga s vagueness challenge fails. We need not decide whether the INA stalking 19 20 21 I Claims of facial invalidity are generally limited to 22 statutes that threaten First Amendment interests. 23 Chapman v. United States, 500 U.S. 453, 467 (1991) ( First 7 See 1 Amendment freedoms are not infringed by [the statute at 2 issue], so the vagueness claim must be evaluated as the 3 statute is applied. ). 4 stalking provision compromised his First Amendment rights. 5 Vagueness challenges to statutes not threatening First 6 Amendment interests are examined in light of the facts of 7 the case at hand; the statute is judged on an as-applied 8 basis. 9 see United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. Arriaga does not claim that the INA Maynard v. Cartwright, 486 U.S. 356, 361 (1988); 10 2003) (en banc) ( [W]hen . . . the interpretation of a 11 statute does not implicate First Amendment rights, it is 12 assessed for vagueness only as applied, i.e., in light of 13 the specific facts of the case at hand and not with regard 14 to the statute s facial validity. (quoting United States 15 v. Nadi, 996 F.3d 548, 550 (2d Cir. 1993)). 16 Although we have suggested that some facial vagueness 17 challenges may be brought where fundamental rights are 18 implicated outside the First Amendment context, we need not 19 pursue that issue because Arriaga has not identified a 20 fundamental right compromised by the INA stalking provision. 21 See Farrell v. Burke, 449 F.3d 470, 495-96 & n.11 (2d Cir. 22 2006) (noting that Rybicki suggests that facial vagueness 23 challenges may be brought where other fundamental rights are 8 1 at stake). Arriaga characterizes the INA stalking provision 2 as a restriction on the right to travel and to interstate 3 movement. 4 254 (1974) (recognizing the right of interstate travel as a 5 basic constitutional freedom ). 6 does not prohibit stalking; it provides for removal of 7 aliens who have been convicted of that offense. 8 light, the INA stalking provision is an exercise of the 9 fundamental authority of the political branches to exclude See Mem l Hosp. v. Maricopa County, 415 U.S. 250, However, the INA provision In that 10 undesirable aliens. [O]ver no conceivable subject is the 11 legislative power of Congress more complete than it is over 12 the admission of aliens. 13 792 (1977) (internal quotation marks and citation omitted); 14 Galvan v. Press, 347 U.S. 522, 531 (1954) ( Policies 15 pertaining to the entry of aliens and their right to remain 16 here are peculiarly concerned with the political conduct of 17 government. . . . [and] the formulation of these policies is 18 entrusted exclusively to Congress. ). Fiallo v. Bell, 430 U.S. 787, 19 Opportunities to challenge the underlying offense of 20 stalking as a violation of Arriaga s right to travel were 21 presented at his criminal trial, or on appeal or collateral 22 review of that conviction. 23 state criminal conviction is not available on a petition to However, collateral attack on a 9 1 review the BIA s removal decision. See Abimbola v. 2 Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004). 3 the validity of his stalking conviction for the purposes of 4 the immigration laws, Arriaga cannot interpose the right to 5 travel as the predicate for a facial challenge to the 6 statute that treats the conviction as a ground for removal.2 7 II 8 In deciding the vagueness challenge as applied to 9 Arriaga s case, we employ the two-part Kolender inquiry: Having conceded 10 Does the INA stalking provision provide (A) sufficient 11 notice and (B) limits on the discretion of law enforcement 2 The Supreme Court has suggested that a statute that does not reach constitutionally protected conduct, may nevertheless be challenged on its face as unduly vague, in violation of due process. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982); see City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (suggesting, in plurality opinion, that facial challenge is appropriate outside First Amendment context [w]hen vagueness permeates the text. ). But see Rybicki, 354 F.3d at 131 (declining to follow the Morales dicta because it did not command a majority ). However, the challenger in such a case must demonstrate that the law is impermissibly vague in all of its applications. Vill. of Hoffman Estates, 455 U.S. at 497; see also United States v. Salerno, 481 U.S. 739, 745 (1987) ( A facial challenge . . . is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. ). Even if Arriaga were entitled to bring this type of facial challenge, it would fail because, as set forth in Section II, infra, he cannot establish that the statute is vague in his own case. 10 1 authorities? Kolender, 461 U.S. at 357; see Thibodeau v. 2 Portuondo, 486 F.3d 61, 65-66 (2d Cir. 2007). 3 4 A. The first Kolender inquiry asks whether the 5 statute, as written, provides notice sufficient to alert 6 ordinary people [as to] what conduct is prohibited. 7 Kolender, 461 U.S. at 357. 8 of life, liberty or property to speculate as to the meaning 9 of penal statutes. No one may be required at peril All are entitled to be informed as to 10 what the State commands or forbids. 11 Jersey, 306 U.S. 451, 453 (1939). 12 however, achieve meticulous specificity, which would come 13 at the cost of flexibility and reasonable breadth. 14 Grayned, 408 U.S. at 110. 15 conveys sufficiently definite warning as to the proscribed 16 conduct when measured by common understanding and 17 practices. 18 (1951) (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 19 391 (1926)). 20 Lanzetta v. New Statutes need not, The test is whether the language Jordan v. De George, 341 U.S. 223, 231-31 Jordan involved facts analogous to the present case. 21 An alien twice convicted of fraud and tax evasion was 22 subject to deportation pursuant to the predecessor version 23 of the INA provision authorizing removal for crimes 11 1 involving moral turpitude, a capacious phrase undefined in 2 the statute. 3 vagueness challenge, the Court noted that while use of the 4 phrase was widespread across a variety of statutes, [n]o 5 case has been decided holding that the phrase is vague, nor 6 are we able to find any trace of judicial expression which 7 hints that the phrase is so meaningless as to be a 8 deprivation of due process. 9 observed: Jordan, 341 U.S. at 225. In rejecting a Id. at 230. The Court further [D]ifficulty in determining whether certain marginal offenses are within the meaning of the language under attack does not automatically render a statute unconstitutional for indefiniteness. Impossible standards of specificity are not required. 10 11 12 13 14 15 16 17 18 Id. at 231 (citation omitted). 19 phrase by common understanding and practices, the Court 20 concluded that crimes of fraud universally have been deemed 21 to involve moral turpitude. 22 that doubt as to the adequacy of a standard in less obvious 23 cases does not render that standard unconstitutional for 24 vagueness. 25 Measuring the disputed Id. at 232. The Court held Id. Because the INA does not define stalking, we 26 accordingly measure the term by common understanding and 27 practices to determine whether it gives sufficiently 12 1 definite warning of the conduct subject to deportation. 2 Id.; see Lopez v. Gonzales, 127 S. Ct. 625, 630 (2006) 3 (relying on everyday understanding and regular usage to 4 define the term trafficking as used in the INA). 5 fundamental canon of statutory construction is that, unless 6 otherwise defined, words will be interpreted as taking their 7 ordinary, contemporary, common meaning. 8 States, 444 U.S. 37, 42 (1979) (construing bribery in the 9 Travel Act by its ordinary, contemporary, common meaning ). 10 A Perrin v. United The crime of stalking (along with crimes of domestic 11 violence, violations of protection orders, and crimes 12 against children) was added as a ground for deportation in 13 the Illegal Immigration Reform and Immigrant Responsibility 14 Act of 1996 ( IIRIRA ). 15 III-C § 350(a), 110 Stat. 3009-546, 3009-639 (1996).3 16 IIRIRA was adopted, laws against stalking were fairly 17 recent. 18 was California, in 1990. 19 (current version). Pub. L. No. 104-208, Div. C., Title When The first state to criminalize stalking by statute See Cal. Penal Code § 646.9 (2007) By 1992, over half the states had 3 The legislative history suggests that Congress added these deportation grounds to close potential loopholes for aliens who commit crimes against women and children that did not clearly fall within other categories of deportable crimes such as crimes involving moral turpitude and aggravated felonies. See 142 Cong. Rec. S4058-02 (1996). The legislative history does not otherwise define stalking. 13 1 enacted similar statutes. 2 every state, and interstate travel for stalking is a federal 3 offense. 4 LaFave, Substantive Criminal Law § 16.4 (2d ed. 2004 & 2007 5 Supp.). 6 Today, stalking is a crime in See 18 U.S.C. § 2261A; see generally 2 Wayne R. Though stalking is an offense unknown to the common 7 law, consensus as to its meaning was aided by a model law 8 commissioned by the Justice Department s National Institute 9 of Justice (set out in the margin).4 4 A working definition The model law reads as follows: Section 1. For purposes of this code: (a) Course of conduct means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying verbal or written threats or threats implied by conduct or a combination thereof directed at or toward a person; (b) Repeatedly means on two or more occasions; and (c) Immediate family means a spouse, parent, child, sibling, or any other person who regularly resides in the household or who within the prior six months regularly resided in the household. Section 2. Any person who: (a) purposely engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or herself or a member of his or her immediate family or to fear the death of himself or herself or a member of his or her immediate family; (b) has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to himself or herself or a member of his or her immediate family or will be placed in reasonable fear of the death of himself or herself or a member of his or her immediate family; and (c) whose acts induce fear in the specific person of bodily injury to himself or herself or a 14 1 of stalking might be: persistent and intrusive conduct 2 directed at a specific person that conveys menace and that 3 would cause a reasonable person to fear. 4 definition comports with the definition found in treatises, 5 see LaFave, Substantive Criminal Law § 16.4; 86 C.J.S. 6 Threats § 22 (2008), and in law dictionaries, see Black s 7 Law Dictionary 1441 (8th ed. 2004) (defining stalking as 8 following, or loitering near another, often 9 surreptitiously, with the purpose of annoying or harassing This working 10 that person or committing a further crime such as assault or 11 battery ); Barron s Law Dictionary 489 (5th ed. 2003) 12 (defining stalking as persistent, distressing, or 13 threatening behavior consisting of at least two elements: 14 the actor must repeatedly follow the victim and must engage 15 in conduct that annoys or alarms the victim and serves no 16 legitimate purpose ). 17 18 In virtually every state, stalking entails: (1) conduct beyond a single occasion, (2) intentionally or member of his or her immediate family or induce fear in the specific person of the death of himself or herself or a member of his or her immediate family; is guilty of stalking. National Institute of Justice, U.S. Dep t of Justice, Project to Develop a Model Anti-Stalking Code for States 4348 (1993). 15 1 purposefully directed at a specific person, with (3) the 2 consequence of instilling fear in that person. 3 codes vary considerably in such particulars as the types of 4 conduct (e.g., following, pursuing, surveilling, 5 cyberstalking), the level of intent (general or specific), 6 and the standard of fear (objective or subjective). 7 National Center for Victims of Crime, Stalking Resource 8 Center, Analyzing Stalking Laws, 9 http://www.ncvc.org/src/AGP.Net/Components/DocumentViewer/Do State penal See 10 wnload.aspxnz?DocumentID=41531 (last visited March 26, 11 2008). 12 demonstrated by the failure of almost every void-for- 13 vagueness challenge brought against state stalking laws. 14 See People v. Stuart, 100 N.Y.2d 412, 418 n.4 (N.Y. 2003) 15 (collecting state court decisions upholding stalking laws 16 and noting that vagueness challenges to stalking statutes 17 have almost uniformly been rejected by reviewing courts ); 18 cf. Jordan, 341 U.S. at 230 (rejecting vagueness challenge 19 to crime involving moral turpitude where no other court 20 found the phrase vague). The widely-accepted core meaning of stalking is 21 Arriaga argues that variations among state penal codes 22 as to the necessary elements of a stalking crime invalidate 23 the INA s use of the term. This argument is defeated by the 16 1 rule that, absent contrary Congressional intent, federal 2 statutes are not to be construed so that their application 3 is dependent on state law. 4 U.S. 575, 591-92, 598 (1990) (construing burglary as used 5 in federal sentencing statute according to its generic, 6 contemporary meaning as used in the criminal codes of most 7 States ); Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 8 119-120 (1983) ( [T]he application of federal legislation is 9 nationwide and at times the federal program would be See Taylor v. United States, 495 10 impaired if state law were to control. ); United States v. 11 Turley, 352 U.S. 407, 411 (1957) ( [I]n the absence of a 12 plain indication of an intent to incorporate diverse state 13 laws into a federal criminal statute, the meaning of the 14 federal statute should not be dependent on state law. ). 15 Uniformity among state law definitions of stalking is 16 therefore unnecessary to give meaning to the term as used in 17 the federal statute. 18 incorporate the generally accepted contemporary meaning of 19 stalking as discussed above, regardless of the exact 20 definition or label used in the various penal statutes. 21 Taylor, 495 U.S. at 599. 22 provision is sufficiently definite such that ordinary people 23 would understand which conduct is prohibited. We read the INA stalking provision to So construed, the INA stalking 17 1 As applied to Arriaga, the INA stalking provision 2 adequately warned him that a conviction under Connecticut s 3 stalking law would subject him to deportation. 4 pleaded guilty to stalking in the second degree under 5 Connecticut law, which constitutes his admission that: 6 with intent to cause another person to fear for his 7 physical safety, he wilfully and repeatedly follow[ed] or 8 l[ay] in wait for such other person and cause[d] such other 9 person to reasonably fear for his physical safety. Arriaga Conn. 10 Gen. Stat. § 53a-181d(a). Arriaga raised no constitutional 11 objection to his conviction or to the Connecticut law, which 12 in any event has already withstood challenges for vagueness. 13 See State v. Marsala, 44 Conn. App. 84, 97, 688 A.2d 336, 14 344 (Conn. App.) (holding that Section 53a-181d is not 15 unconstitutionally vague on its face), cert. denied, 240 16 Conn. 912, 690 A.2d 400 (1997); see also State v. Cummings, 17 46 Conn. App. 661, 669-670, 701 A.2d 663, 668 (Conn. App. 18 1997) (terms repeatedly, follows, and lies in wait, as 19 used in Section 53a-181d, were not unconstitutionally 20 vague). 21 stalking conviction for the purpose of applying the 22 immigration laws. 23 conviction was stalking as used in the INA. Arriaga has thus conceded the validity of his The remaining question is whether that 18 See Jordan, 1 341 U.S. at 226-27 (limiting vagueness assessment of crimes 2 of moral turpitude to determining whether [the 3 petitioner s] particular offense involves moral turpitude ). 4 The Connecticut law in no way deviates from the 5 consensus understanding of stalking. If anything, 6 Connecticut s version of stalking imposes a heavier 7 prosecutorial burden because it employs two levels of 8 scienter. 9 One or another stalking statute, elsewhere, might 10 criminalize behavior falling outside the consensus 11 understanding of what the offense entails. 12 possibility does not invalidate the application of the INA 13 provision in Arriaga s case. 14 validity that attaches to an Act of Congress has led this 15 Court to hold many times that statutes are not automatically 16 invalidated as vague simply because difficulty is found in 17 determining whether certain marginal offenses fall within 18 their language. 19 Corp., 372 U.S. 29, 32 (1963); see also Parker v. Levy, 417 20 U.S. 733, 757 (1974) (rejecting a vagueness challenge to the 21 phrase conduct unbecoming an officer and a gentleman in 22 the Uniform Code of Military); Farrell v. Burke, 449 F.3d 23 470, 476, 486 (2d Cir. 2006) (rejecting a vagueness See Marsala, 44 Conn. at 97, 688 A.2d at 344. But that The strong presumptive United States v. Nat l Dairy Products 19 1 challenge to a ban on possession of pornographic material 2 as applied to parolee who was found with a magazine that 3 fell within any reasonable definition of the notoriously 4 subjective and elusive term). 5 6 B. The second vagueness inquiry (and the more 7 important of the two) is whether the [s]tatutory language 8 [is] of such a standardless sweep [that it] allows 9 policemen, prosecutors, and juries to pursue their personal 10 predilections. 11 see also Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). 12 statute that reaches a substantial amount of innocent 13 conduct confers an impermissible degree of discretion on 14 law enforcement authorities to determine who is subject to 15 the law. 16 (1999); see Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir. 1999) 17 ( An enactment fails to provide sufficiently explicit 18 standards for those who apply it when it impermissibly 19 delegates basic policy matters to policemen, judges and 20 juries for resolution on an ad hoc and subjective basis. 21 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 22 (1972)). 23 Smith v. Goguen, 415 U.S. 566, 575 (1974); A City of Chicago v. Morales, 527 U.S. 41, 60-61 We must therefore determine either that: 20 (1) [the] 1 statute as a general matter provides sufficiently clear 2 standards to eliminate the risk of arbitrary enforcement, 3 or (2) even in the absence of such standards, the conduct 4 at issue falls within the core of the statute's prohibition, 5 so that the enforcement before the court was not the result 6 of the unfettered latitude that law enforcement officers and 7 factfinders might have in other, hypothetical applications 8 of the statute. 9 stalking provision passes both tests. 10 Farrell, 449 F.3d at 494. The INA The statutory terms do not reach any innocent 11 conduct : a criminal conviction is a predicate for invoking 12 the removal provision, and the statute affords no discretion 13 in commencing removal proceedings. 14 convicted of a stalking crime, removal proceedings must 15 follow. 16 admitted to the United States shall . . . be removed if the 17 alien is within one or more of the following classes of 18 deportable aliens . . . . (emphasis added)). 19 immigration service exercises some discretion in determining 20 whether a particular stalking conviction falls within the 21 generally accepted definition of stalking. 22 discretion is constrained by settled precedent that requires 23 a categorical approach, looking only to the statutory When an alien has been 8 U.S.C. § 1227(a) ( Any alien . . . in and 21 The However, that 1 definition of the offense (and in rare cases the record of 2 conviction), but not the particular facts underlying the 3 conviction. 4 U.S. Dep t of Homeland Sec., 501 F.3d 116, 124 (2d Cir. 5 2007) (applying categorical approach to establish 6 removability under the INA). 7 order removal based on an offense that falls outside the 8 common understanding of stalking. 9 61 (finding loitering statute unconstitutionally vague See Taylor, 495 U.S. at 600; Dulal-Whiteway v. Immigration judges may not See Morales, 527 U.S. at 10 because it provides absolute discretion to police officers 11 to decide what activities constitute loitering (internal 12 quotation marks and citation omitted)); United States v. 13 Rybicki, 354 F.3d 124, 143-44 (2d Cir. 2003) (en banc) 14 (rejecting vagueness challenge to scheme or artifice to 15 deprive another of the intangible right of honest services 16 as used in the mail- and wire-fraud statutes, despite 17 instances of prosecutorial misjudgment in charging the 18 offense). 19 Even if the statute did not provide sufficiently clear 20 standards for enforcement, Arriaga s stalking conviction 21 squarely fits within the set of crimes intended as a 22 predicate for deportation. 23 penal provision that defines stalking in a way that falls Arriaga was convicted under a 22 1 well within the core meaning of the term. See Thibodeau 2 v. Portuondo, 486 F.3d 61, 69 (2d Cir. 2007) (explaining 3 that statute as applied to [defendant] would not be 4 unconstitutionally vague because the conduct to which the 5 statute was applied falls within the core meaning of the 6 statute (citing Smith, 415 U.S. at 577-78)). 7 Goguen, the Supreme Court invalidated a flag desecration 8 statute because it gave too little guidance to law 9 enforcement authorities or juries as to which uses of the In Smith v. 10 flag were criminal. The Court distinguished the statute at 11 issue from statutes that by their terms . . . apply without 12 question to certain activities but whose application to 13 other behavior is uncertain. 14 The Court observed that such statutes may not be vague as 15 applied to hard-core violator[s] . . . whatever its 16 implications for those engaged in different conduct. 17 at 577. 18 Connecticut s stalking law is comparatively stringent and is 19 unlikely to capture anyone whose conduct is at the 20 borderline of commonly accepted notions of stalking. 21 Application of the INA provision to Arriaga s Connecticut 22 conviction was therefore in no sense arbitrary. Smith, 415 U.S. at 577-78. Id. Arriaga is a hard-core violator because 23 CONCLUSION 24 For the foregoing reasons, the petition is DENIED. 23

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