PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ Nos. 19-1848 & 19-2904 ______________ VAMSIDHAR VURIMINDI, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A096-689-764) Immigration Judge: Walter A. Durling ______________ Argued: October 27, 2021 ______________ Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit Judges. (Opinion Filed: August 24, 2022) Rachel A.H. Horton [ARGUED] Courtney G. Saleski DLA Piper 1650 Market Street One Liberty Place, Suite 5000 Philadelphia, PA 19103 Counsel for Petitioner Victoria M. Braga [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _____________ OPINION ______________ KRAUSE, Circuit Judge. 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 2 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. I. Factual and Procedural Background Vurimindi, a native of India, came to the United States on a work visa in 2000, and after marrying an American citizen, became a lawful permanent resident in 2008. JA 74. Vurimindi’s erratic behavior towards some of his neighbors eventually led to his arrest and conviction on two counts of misdemeanor stalking under Pennsylvania law. JA 74, 187, 244, 420. In relevant part, the Pennsylvania stalking statute makes it a crime to: engage[] in a course of conduct or repeatedly commit[] acts toward another person ... under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person[.] 18 Pa. Stat. and Cons. Stat. § 2709.1(a)(1). Vurimindi was sentenced to two consecutive terms of fifteen to thirty months’ 3 imprisonment followed by a period of supervised release. JA 74, 187. In 2016, while Vurimindi was serving this sentence, the Government initiated removal proceedings against him under 8 U.S.C. § 1227(a)(2)(E)(i), which makes any noncitizen convicted of a “crime of stalking” removable from the United States. JA 72-74. But “crime of stalking” is not defined in the INA, so to ascertain whether Vurimindi’s Pennsylvania conviction qualified under this removal provision, the IJ was required to apply the categorical approach, i.e., comparing the elements of the relevant state offense …
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