Ninth Circuit

AGGRAVATED FELONY - STALKING - CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, __ F.3d __ , 2007 WL 624532 (9th Cir. Mar. 2, 2007) (California stalking conviction, in violation of Penal Code 649.9, is not an aggravated felony crime of violence for immigration purposes, since even the more serious portion of the statute does not necessarily create a risk that force may be used; the California stalking statue requires an intent to create fear, but not require intent to carry out the threat - the statute may be violated even if the defendant was incarcerated or thousands of miles away and completely unable to carry out the threat.) http://caselaw.lp.findlaw.com/data2/circs/9th/0471140p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(a) - STALKING NOT COV SINCE NO ELEMENT OF FORCE SINCE THREAT TO SAFETY WAS NOT LIMITED TO PHYSICAL SAFETY
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(a), because the threat to safety is not limited to physical safety, and the offense therefore did not have the required element of the use of force), following United States v. Jones, 231 F.3d 508 (9th Cir. 2000).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT MIGHT HAVE BEEN COMMITTED BY HARASSMENT FROM A DISTANCE, WHICH DOES NOT PRESENT A SUBSTANTIAL RISK THAT VIOLENT FORCE WILL INTENTIONALLY BE USED IN THE COMMISSION OF THE OFFENSE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because the offense might have been committed by harassment from a distance, which does not present a substantial risk that violent force will be used in the commission of the offense).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 USC 16(b) - STALKING NOT AGGRAVATED FELONY SINCE IT PRESENTED A RISK THAT FORCE WILL RECKLESSLY BE USED IN THE COMMISSION OF THE OFFENSE, AND RECKLESS USE OF FORCE IS INSUFFICIENT TO QUALIFY AS CRIME OF VIOLENCE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (California conviction of stalking [harassing or following with threats], in violation of Penal Code 646.9, did not constitute an aggravated felony crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as defined by 18 U.S.C. 16(b), because it presented a substantial risk that that violent force will recklessly be used in the commission of the offense, and reckless use of force does not qualify as a crime of violence).