                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MANUEL RAYA-MORENO,                              No. 11-71992

              Petitioner,                        Agency No. A014-687-172

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                     Argued and Submitted November 6, 2012
                            San Francisco, California

Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.

       Petitioner Manuel Raya-Moreno, a native and citizen of Mexico, petitions

for review of the Board of Immigration Appeal’s (“BIA”) order dismissing his

appeal from an immigration judge’s removal order. The BIA found Raya-Moreno

removable under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) on the basis

of convictions for two crimes it held categorically involved moral turpitude:


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
stalking under California Penal Code § 646.9(a) and sexual battery under

California Penal Code § 243.4(a). Raya-Moreno contests only the BIA’s

conclusion that § 646.9(a) is categorically a crime involving moral turpitude. He

also contends that the BIA incorrectly denied his requests for cancellation of

removal under INA § 240A(a), 8 U.S.C. § 1229b(a) and waiver of inadmissibility

under former INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996).

      Raya-Moreno was convicted of stalking in 1995 under California Penal

Code § 646.9(a), which provided, in relevant part:

             Any person who willfully, maliciously, and repeatedly follows
      or harasses another person and who makes a credible threat with the
      intent to place that person in reasonable fear for his or her safety, or
      the safety of his or her immediate family, is guilty of the crime of
      stalking . . . .

      The statute defined the term “harass” to be “a knowing and willful course of

conduct directed at a specific person that seriously alarms, annoys, torments, or

terrorizes the person, and that serves no legitimate purpose.” Id. at § 646.9(d). It

further defined “course of conduct” as a pattern of conduct that demonstrates a

continuity of purpose. Id. A threat was credible when “made with the intent and

the apparent ability to carry out the threat so as to cause the person who is the

target of the threat to reasonably fear for his or her safety or the safety of his or her

immediate family.” Id. at § 646.9(e); see People v. Halgren, 61 Cal. Rptr. 2d 176,


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179–80 (Ct. App. 1996). Thus, the credible threat requirement effectively

subsumed a need to show malice into the statute because a threat to cause another

to fear for her safety demonstrates malice. Harassment is not enough under the

statute. The credible threat to safety requirement distinguishes criminal stalking

from less offensive behaviors that could qualify as harassment under the statute.

      The BIA relied on its precedential opinion In re Ajami, 22 I. & N. Dec. 949,

950 (BIA 1999), which held that Michigan’s aggravated stalking statute was

categorically a crime involving moral turpitude. Id. at 952. The Michigan statute

was materially similar to the California statute. Mich. Comp. Laws Ann.

§ 750.411i. “Course of conduct” was defined as a pattern of conduct composed of

a series of acts evidencing a continuity of purpose. Id. The BIA held that the

behavior punished in Ajami was “evidence of a vicious motive or a corrupt mind”

and thus involved moral turpitude. Ajami, 22 I. & N. at 952. The BIA further

noted that stalking involves conduct that poses significant dangers to victims. Id.

(“The threat of violence, real or perceived, is almost always present in [stalking]

cases; tragically, it is far from unheard of for a pattern of stalking to end in the

stalker killing the stalked.” (quoting People v. White, 536 N.W.2d 876, 883 (Mich.

Ct. App. 1995)).




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      The BIA in this case reasonably relied on Ajami when it ruled that a

conviction for stalking in violation of section 646.9 was categorically a crime

involving moral turpitude. Both the statute in Ajami and section 646.9 required a

course of conduct involving multiple acts that together put the victim in fear for

her safety. It is this pattern of behavior, not the underlying acts alone, that causes

the victim to fear for her safety. Furthermore, both statutes contained a mens rea

requirement that evidences a “vicious motive or corrupt mind.” The Michigan

statute in Ajami required willful intent to place the victim in fear, and the

California statute required malicious intent. Consequently, the BIA’s conclusion

that section 646.9 is categorically a crime involving moral turpitude is entitled to

deference. Raya-Moreno is removable under INA § 237(a)(2)(A)(ii), 8 U.S.C.

§ 1227(a)(3)(A)(ii) for committing two crimes involving moral turpitude.


      This court lacks jurisdiction to consider Raya-Moreno’s challenges to the

denial of his applications for cancellation of removal and waiver of inadmissability

because the BIA ruled that it would deny the requests in an exercise of discretion

even if he were eligible for those forms of statutory relief. 8 U.S.C.

§ 1252(a)(2)(B)(i); Bermudez v. Holder, 586 F.3d 1167, 1169 (9th Cir. 2009) (per

curiam). Raya-Moreno’s contention that the BIA’s weighing of the equities

amounted to a denial of due process is without merit. He does not raise a colorable

                                           4
question of law sufficient to invoke the court’s jurisdiction. See Bazua–Cota v.

Gonzales, 466 F.3d 747, 749 (9th Cir. 2006) (per curiam) (argument that agency

“fail[ed] to properly weigh the equities” is merely “an abuse of discretion

challenge re-characterized as an alleged due process violation”).


      The petition for review is DENIED.




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