Arriaga v. Mukasey (2nd Cir. 3/27/08)

JACOBS, Pooler, and Sack

The 2d Cir found the INA's stalking provision at INA § 237(a)(2)(E)(i) to not be unconstitutionally vague, simply because it doesn't define stalking.  Stalking was defined by "common understanding," and is criminalized federally and in all 50 states. 

Read decision here:

Petitioner (LPR) pled guilty in Connecticut to stalking in the second degree in October 2004, four years after admission as LPR.  Charged as removable for a "crime of stalking" under INA § 237(a)(2)(E)(i), and a crime involving moral turpitude within five years of admission.  The IJ found the Petitioner removable on both grounds, BIA affirmed only on stalking ground.  Petitioner challenged the constitutionally of the INA stalking provision as void on its face and as applied. 

1.  While noting that vagueness challenges are usually applied to the criminal code, Court did not need to decide whether those standards would apply here because, it found, it would fail under either test.

   The “void for vagueness” doctrine is chiefly applied to criminal legislation. Laws with civil consequences receive less exacting vagueness scrutiny. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982) (expressing “greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.”); Chatin v. Coombe, 186 F.3d 82, 86-87 (2d Cir. 1999) (scrutinizing “closely” a prison regulation prohibiting religious services because its penalties were more akin to criminal than civil penalties); see also Jordan v. De George, 341 U.S. 223, 231 (1951) (reviewing deportation provision for vagueness because of the “grave nature” of the penalty of forfeiting one’s residence). The statute reviewed in Jordan v. De George was an earlier version of the same section of the INA at issue here (specifically, the subpart authorizing deportation for crimes involving moral turpitude). The Court “emphasized that this statute does not declare certain conduct to be criminal” and that “[i]ts function is to apprise aliens of the consequences which follow after conviction and sentence.” Id. at 230. However, because deportation is a “drastic measure,” the Court assessed the statute for vagueness as if it imposed a criminal penalty. Id. at 230-31.

2.  Because this issue does not implicate 1st Am interests or fundamental rights, only reviewed "as applied."

   “Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988); see United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003) (en banc) (“[W]hen . . . the interpretation of a statute does not implicate First Amendment rights, it is assessed for vagueness only ‘as applied,’ i.e., ‘in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’” (quoting United States v. Nadi, 996 F.3d 548, 550 (2d Cir. 1993)).

3.  Noted that he could have challenged the underlying conviction for its limitations on his ability to travel or speak.

4. Stalking was not vague, because Courts apply "common understanding and practices" to give meaning to the phrase. After charting the history of stalking laws, and noting that all 50 states have them, as well as the federal govt, Court found uniformity among state law definitions unnecessary.

   Uniformity among state law definitions of stalking is therefore unnecessary to give meaning to the term as used in the federal statute. We read the INA stalking provision to incorporate the generally accepted contemporary meaning of stalking as discussed above, regardless of the "exact definition or label" used in the various penal statutes. Taylor, 495 U.S. at 599. So construed, the INA stalking provision is sufficiently definite such that ordinary people would understand which conduct is prohibited.

5.  CT's stalking law required a heavier prosecutorial burden than the consensus understanding of stalking, by requiring two levels of scienter ("willfully followed" and "with intent to cause fear"), so constitutes stalking under INA (notes that it is possible that some state stalking laws do not).

6. The second part of a vagueness inquiry is whether the statutory terms reach innocent conduct - here, a criminal conviction is necessary - although the government exercises some discretion in determining whether a particular stalking conviction falls within the generally accepted definition of stalking, that discretion is constrained by the "categorical" approach which precludes it looking beyond the language of the criminal statute.

   The statutory terms do not reach any "innocent conduct": a criminal conviction is a predicate for invoking the removal provision, and the statute affords no discretion in commencing removal proceedings. When an alien has been convicted of a stalking crime, removal proceedings must follow. 8 U.S.C. § 1227(a) ("Any alien . . . in and admitted to the United States shall . . . be removed if the alien is within one or more of the following classes of deportable aliens . . . ." (emphasis added)). The immigration service exercises some discretion in determining whether a particular stalking conviction falls within the generally accepted definition of stalking. However, that discretion is constrained by settled precedent that requires a  "categorical" approach, looking only to the statutory definition of the offense (and in rare cases the record of conviction), but not the particular facts underlying the conviction. [citations omitted] Immigration judges may not order removal based on an offense that falls outside the common understanding of stalking.

7.  Finally, the court concluded that, even if the statute did not provide sufficiently clear standards for enforcement, the Petitioner's stalking conviction squarely fit within the set of crimes intended as a predicate for deportation.  The statute is not vague as applied to "hard-core violators" such as the Petitioner, and thus application of the INA provision to the Petitioner was not arbitrary.

   The Court observed that such statutes may not be vague as applied to "hard-core violator[s] . . . whatever its implications for those engaged in different conduct." Smith v. Goguen, 415 U.S. 566,577 (1974). Arriaga is a "hard-core violator" because Connecticut's stalking law is comparatively stringent and is unlikely to capture anyone whose conduct is at the borderline of commonly accepted notions of stalking.  Application of the INA provision to Arriaga's Connecticut conviction was therefore in no sense arbitrary.

Atty: Ramiro Alcazar

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