UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MIGUEL ANGEL ORELLANA, No. 19-70164 Petitioner, Agency No. v. A072-937-494

WILLIAM P. BARR, Attorney General, Respondent. OPINION

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 6, 2020 * Pasadena, California

Filed July 28, 2020

Before: MILAN D. SMITH, JR., JOHN B. OWENS, and DANIEL A. BRESS, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge Owens

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 ORELLANA V. BARR

SUMMARY **

Immigration

Denying Miguel Orellana’s petition for review of a decision of the Board of Immigration Appeals, the panel held that 1) a conviction for criminal stalking, in violation of California Penal Code (CPC) § 646.9(a), is categorically a crime involving moral turpitude (CIMT); and 2) the BIA reasonably concluded that Orellana’s two § 646.9(a) counts of conviction did not arise out of single scheme of criminal misconduct, and therefore, made him removable.

Reviewing the statute of conviction de novo, the panel first concluded that the BIA did not err in identifying the elements of a § 646.9(a) offense. Next, comparing the elements of the statute with the federal definition of a CIMT, the panel concluded that the BIA did not err in concluding that Orellana’s § 646.9(a) conviction is a CIMT. The panel observed that this court has defined a CIMT as involving either fraud or base, vile, and depraved conduct that shocks the public conscience, and that CIMTs generally involve some evil intent.

The panel explained that the BIA’s reliance on its published decision in In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), was not entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), because Ajami did not interpret § 646.9(a). Nonetheless, the panel concluded that the BIA’s reliance on

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ORELLANA V. BARR 3 Ajami was entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), explaining that: 1) in Ajami, the BIA determined that the offense was a CIMT because it involved transmission of threats, thus evincing a vicious motive or a corrupt mind; and 2) § 646.9(a) prohibits conduct that is materially identical to the offense in Ajami.

The panel also concluded that there was not a “realistic probability” that the statute applies to conduct that is not morally turpitudinous because all the conduct that § 646.9(a) criminalizes is morally turpitudinous. The panel explained that § 646.9(a) was more similar to the criminal threat statute held to be a CIMT in Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), than statutes this court has held are not CIMTs. The panel explained that § 646.9(a), like the statute in Latter-Singh, criminalizes only credible threats that cause the targeted person to reasonably fear for his or her safety or his or her family’s safety, threats made with the apparent ability to carry out the threat, and threats specifically intended to cause such fear in the targeted person. Further, the panel concluded that, although § 646.9(a) does not expressly require the threat of death or bodily injury (as does the statute in Latter-Singh), the BIA was entitled to place greater emphasis on the evil intent or corrupt mind required by § 646.9(a).