Arriaga v. Mukasey

07-1148-ag
Arriaga v. Mukasey

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2007
5
6
7 (Argued: December 13, 2007 Decided: March 27, 2008)
8
9 Docket No. 07-1148-ag
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 NELSON ARRIAGA,
14
15 Petitioner,
16
17 - v.-
18
19 MICHAEL B. MUKASEY,1
20
21 Respondent.
22
23 - - - - - - - - - - - - - - - - - - - -X
24

25 Before: JACOBS, Chief Judge, POOLER and SACK, Circuit
26 Judges.
27
28 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. The stalking provision of the

2 removal statute is not unconstitutionally vague, on its face

3 or as applied to petitioner. The petition is denied.

4 RAMIRO ALCAZAR, Meriden,
5 Connecticut, for Petitioner.
6
7 JAMES A. HUNOLT, Senior
8 Litigation Counsel, Officer of
9 Immigration Litigation, Civil
10 Division, United States
11 Department of Justice (Peter D.
12 Keisler, Assistant Attorney
13 General, and John P. Devaney,
14 Trial Attorney, on the brief),
15 Washington, D.C., for
16 Respondents.
17
18 DENNIS JACOBS, Chief Judge:

19 Nelson Arriaga (“Arriaga”) petitions for review of a

20 final order of removal of the Board of Immigration Appeals

21 (“BIA”). The BIA dismissed Arriaga’s appeal from the

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. See INA

26 § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (“the INA

27 stalking provision”). In re Arriaga, A74 913 575 (B.I.A.

28 Feb. 28, 2007), aff’g No. A74 913 575 (Immig. Ct. Hartford

29 Nov. 29, 2006). Arriaga concedes that he was convicted of

30 stalking under Connecticut’s penal code, but he argues that

2
1 the INA stalking provision, which does not define

2 “stalking,” is unconstitutionally vague, on its face and as

3 applied. This challenge presents a question of first

4 impression in the courts of appeals.

5

6 BACKGROUND

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 A person is guilty of stalking in the
13 second degree when, with intent to cause
14 another person to fear for his physical
15 safety, he wilfully and repeatedly
16 follows or lies in wait for such other
17 person and causes such other person to
18 reasonably fear for his physical safety.
19
20 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.” 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added).

27 The INS added a second charge of deportability pursuant to

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. The IJ ruled Arriaga removable because his crime

9 was one of moral turpitude. 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.” The IJ

20 accordingly found that Arriaga’s Connecticut conviction

21 qualified as a conviction for a crime of stalking under the

22 INA. The IJ also ruled that stalking involves moral

23 turpitude because it entails predatory and inherently

24 threatening conduct.

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).” The BIA

6 declined to consider whether Arriaga is also deportable for

7 having been convicted of an offense involving moral

8 turpitude. The BIA recognized that the agency lacks

9 jurisdiction to consider Arriaga’s argument that the INA

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

16 DISCUSSION

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.” We review de novo constitutional challenges to

22 a statutory provision. See McNary v. Haitian Refugee Ctr.,

23 Inc., 498 U.S. 479, 493 (1991); Field Day, LLC v. County of

24 Suffolk, 463 F.3d 167, 176 (2d Cir. 2006).

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.” Grayned v. City of Rockford, 408 U.S.

4 104, 108 (1972). “[T]he void-for-vagueness doctrine

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.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).

10 The “void for vagueness” doctrine is chiefly applied to

11 criminal legislation. Laws with civil consequences receive

12 less exacting vagueness scrutiny. See Vill. of Hoffman

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). The

6
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). The Court “emphasized

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.” Id. at 230. However, because deportation is a

9 “drastic measure,” the Court assessed the statute for

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”). We need not decide whether the INA stalking

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.

19

20 I

21 Claims of facial invalidity are generally limited to

22 statutes that threaten First Amendment interests. See

23 Chapman v. United States, 500 U.S. 453, 467 (1991) (“First

7
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.”). Arriaga does not claim that the INA

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.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988);

9 see United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.

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. See Mem’l Hosp. v. Maricopa County, 415 U.S. 250,

4 254 (1974) (recognizing the right of interstate travel as a

5 “basic constitutional freedom”). However, the INA provision

6 does not prohibit stalking; it provides for removal of

7 aliens who have been convicted of that offense. In that

8 light, the INA stalking provision is an exercise of the

9 fundamental authority of the political branches to exclude

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.” Fiallo v. Bell, 430 U.S. 787,

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.”).

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. However, collateral attack on a

23 state criminal conviction is not available on a petition to

9
1 review the BIA’s removal decision. See Abimbola v.

2 Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004). Having conceded

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:

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. “No one may be required at peril

8 of life, liberty or property to speculate as to the meaning

9 of penal statutes. All are entitled to be informed as to

10 what the State commands or forbids.” Lanzetta v. New

11 Jersey, 306 U.S. 451, 453 (1939). Statutes need not,

12 however, achieve “meticulous specificity,” which would come

13 at the cost of “flexibility and reasonable breadth.”

14 Grayned, 408 U.S. at 110. “The test is whether the language

15 conveys sufficiently definite warning as to the proscribed

16 conduct when measured by common understanding and

17 practices.” Jordan v. De George, 341 U.S. 223, 231-31

18 (1951) (citing Connally v. Gen. Constr. Co., 269 U.S. 385,

19 391 (1926)).

20 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. Jordan, 341 U.S. at 225. In rejecting a

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.” Id. at 230. The Court further

9 observed:

10 [D]ifficulty in determining whether
11 certain marginal offenses are within the
12 meaning of the language under attack does
13 not automatically render a statute
14 unconstitutional for indefiniteness.
15 Impossible standards of specificity are
16 not required.
17
18 Id. at 231 (citation omitted). Measuring the disputed

19 phrase by “common understanding and practices,” the Court

20 concluded that crimes of fraud universally have been deemed

21 to involve moral turpitude. Id. at 232. The Court held

22 that “doubt as to the adequacy of a standard in less obvious

23 cases does not render that standard unconstitutional for

24 vagueness.” Id.

25 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). “A

5 fundamental canon of statutory construction is that, unless

6 otherwise defined, words will be interpreted as taking their

7 ordinary, contemporary, common meaning.” Perrin v. United

8 States, 444 U.S. 37, 42 (1979) (construing “bribery” in the

9 Travel Act by its “ordinary, contemporary, common meaning”).

10 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”). Pub. L. No. 104-208, Div. C., Title

15 III-C § 350(a), 110 Stat. 3009-546, 3009-639 (1996).3 When

16 IIRIRA was adopted, laws against stalking were fairly

17 recent. The first state to criminalize stalking by statute

18 was California, in 1990. See Cal. Penal Code § 646.9 (2007)

19 (current version). 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. Today, stalking is a crime in

2 every state, and interstate travel for stalking is a federal

3 offense. See 18 U.S.C. § 2261A; see generally 2 Wayne R.

4 LaFave, Substantive Criminal Law § 16.4 (2d ed. 2004 & 2007

5 Supp.).

6 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 A working definition

4
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. This working

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

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 In virtually every state, stalking entails: (1)

18 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 43-
48 (1993).

15
1 purposefully directed at a specific person, with (3) the

2 consequence of instilling fear in that person. State penal

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). See

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

10 wnload.aspxnz?DocumentID=41531 (last visited March 26,

11 2008). The widely-accepted core meaning of stalking is

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).

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. See Taylor v. United States, 495

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

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. We read the INA stalking provision to

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. So construed, the INA stalking

22 provision is sufficiently definite such that ordinary people

23 would understand which conduct is prohibited.

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. Arriaga

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.” 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). Arriaga has thus conceded the validity of his

21 stalking conviction for the purpose of applying the

22 immigration laws. The remaining question is whether that

23 conviction was “stalking” as used in the INA. See Jordan,

18
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. See Marsala, 44 Conn. at 97, 688 A.2d at 344.

9 One or another stalking statute, elsewhere, might

10 criminalize behavior falling outside the consensus

11 understanding of what the offense entails. But that

12 possibility does not invalidate the application of the INA

13 provision in Arriaga’s case. “The strong presumptive

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.” United States v. Nat’l Dairy Products

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

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.” Smith v. Goguen, 415 U.S. 566, 575 (1974);

11 see also Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). A

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. City of Chicago v. Morales, 527 U.S. 41, 60-61

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 We must therefore determine either that: (1) “[the]

20
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.” Farrell, 449 F.3d at 494. The INA

9 stalking provision passes both tests.

10 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. When an alien has been

14 convicted of a stalking crime, removal proceedings must

15 follow. 8 U.S.C. § 1227(a) (“Any alien . . . in and

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)). The

19 immigration service exercises some discretion in determining

20 whether a particular stalking conviction falls within the

21 generally accepted definition of stalking. However, that

22 discretion is constrained by settled precedent that requires

23 a “categorical” approach, looking only to the statutory

21
1 definition of the offense (and in rare cases the record of

2 conviction), but not the particular facts underlying the

3 conviction. See Taylor, 495 U.S. at 600; Dulal-Whiteway v.

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). Immigration judges may not

7 order removal based on an offense that falls outside the

8 common understanding of stalking. See Morales, 527 U.S. at

9 61 (finding loitering statute unconstitutionally vague

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. Arriaga was convicted under a

23 penal provision that defines stalking in a way that falls

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)). In Smith v.

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

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.” Smith, 415 U.S. at 577-78.

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.” Id.

17 at 577. Arriaga is a “hard-core violator” because

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.

23 CONCLUSION

24 For the foregoing reasons, the petition is DENIED.

23