CA3 Categorical Approach Victory: Vurimindi v. Atty. Gen.

Vurimindi v. Atty. Gen.

"We are called on here to decide whether Pennsylvania’s stalking statute, 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1), constitutes a removable offense under the Immigration and Nationality Act, or, applying the so-called “categorical approach,” whether the elements of the Pennsylvania offense are a categorical match to the elements of the generic “crime of stalking” for which a noncitizen is removable under 8 U.S.C. § 1227(a)(2)(E)(i). Because the Board of Immigration Appeals mistakenly found that Petitioner Vamsidhar Vurimindi failed to raise this issue before the Immigration Judge and denied two motions for relief on that basis, we must also decide whether this question is one we may address in the first instance. We conclude that we can and that because the Pennsylvania stalking offense sweeps more broadly than the federal generic under the categorical approach, it is not a removable offense. Accordingly, we will grant Vurimindi’s consolidated Petitions for Review. ... In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense. ... For the foregoing reasons, we will grant Vurimindi’s petitions, vacate the BIA’s orders, and remand to the agency for further proceedings consistent with this opinion."

[Hats way off to appointed pro bono counsel Rachel A.H. Horton and Courtney Saleski!  Here is a link to the audio recording of the oral argument.  NOTE: This PFR was filed in 2019!]