James Dimaya v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES GARCIA DIMAYA, No. 11-71307

Petitioner,

Agency No.

v. A043-888-256

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 1, 2015—Pasadena, California

Filed October 19, 2015

Before: Stephen Reinhardt, Kim McLane Wardlaw,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Callahan

2 DIMAYA V. LYNCH

SUMMARY*

Immigration

The panel granted James Garcia Dimaya’s petition for

review of the Board of Immigration Appeals’ decision

holding that his conviction for burglary under California

Penal Code § 459 is a categorical “crime of violence” as

defined by 8 U.S.C. § 1101(a)(43)(F).

Reaffirming that a noncitizen may bring a void for

vagueness challenge to the definition of a crime of violence

in the Immigration and Nationality Act, the panel held that

the language in 18 U.S.C. § 16(b), which is incorporated into

§ 1101(a)(43)(F)’s definition of a crime of violence, is

unconstitutionally vague. The panel held that § 16(b)’s

language suffers from the same indeterminacy the Supreme

Court found in the Armed Career Criminal Act’s “residual

clause” definition of a violent felony in Johnson v. United

States, 135 S. Ct. 2551 (2015).

Dissenting, Judge Callahan would find that 18 U.S.C.

§ 16(b) is not unconstitutionally vague pursuant to Johnson.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DIMAYA V. LYNCH 3

COUNSEL

Andrew M. Knapp (argued), Southwestern Law School, Los

Angeles, California, for Petitioner.

Nancy Canter (argued) and Jennifer Khouri, Trial Attorneys;

Stuart F. Delery, Assistant Attorney General; Jennifer P.

Levings, Senior Litigation Counsel, United States Department

of Justice, Civil Division, Washington, D.C., for Respondent.

Sejal Zota (argued), National Immigration Project of the

National Lawyers Guild, Boston, Massachusetts, for Amici

Curiae Immigrant Legal Resource Center, Immigrant Defense

Project, and National Immigration Project of the National

Lawyers Guild.

OPINION

REINHARDT, Circuit Judge:

Petitioner James Garcia Dimaya seeks review of the

Board of Immigration Appeals’ (BIA) determination that a

conviction for burglary under California Penal Code Section

459 is categorically a “crime of violence” as defined by

8 U.S.C. § 1101(a)(43)(F), a determination which rendered

petitioner removable for having been convicted of an

aggravated felony. During the pendency of petitioner’s

appeal, the United States Supreme Court decided Johnson v.

United States, 135 S. Ct. 2551 (2015), which held that the

Armed Career Criminal Act’s (“ACCA”) so-called “residual

clause” definition of a “violent felony” is unconstitutionally

vague. In this case, we consider whether language similar to

ACCA’s residual clause that is incorporated into

4 DIMAYA V. LYNCH

§ 1101(a)(43)(F)’s definition of a crime of violence is also

void for vagueness. We hold that it suffers from the same

indeterminacy as ACCA’s residual clause and, accordingly,

grant the petition for review.

I

Petitioner, a native and citizen of the Philippines, was

admitted to the United States in 1992 as a lawful permanent

resident. In both 2007 and 2009, petitioner was convicted of

first-degree residential burglary under California Penal Code

section 459 and sentenced each time to two years in prison.

If a non-citizen is convicted of an aggravated felony, he is

subject to removal. 8 U.S.C. § 1227(a)(2)(A)(iii). Citing

petitioner’s two first-degree burglary convictions, the

Department of Homeland Security (“DHS”) charged that

petitioner was removable because he had been convicted of

a “crime of violence . . . for which the term of imprisonment

[was] at least one year”—an aggravated felony under

8 U.S.C. § 1101(a)(43)(F).1 That statute defines a “crime of

violence” by reference to 18 U.S.C. § 16, which provides the

following definition:

1

DHS also charged that petitioner was removable for having committed

two crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and for

having committed a “theft offense . . . or burglary offense for which the

term of imprisonment [was] at least one year”—an aggravated felony

under 8 U.S.C. § 1101(a)(43)(G). Although the Immigration Judge (IJ)

agreed with DHS that petitioner was removable on either of these two

grounds, the Board of Immigration Appeals (BIA) dismissed petitioner’s

appeal on the sole ground that he was removable for having committed a

crime of violence under 8 U.S.C. § 1101(a)(43)(F). Therefore, whether

the relevant definition of a “crime of violence” is constitutional is the only

issue we reach.

DIMAYA V. LYNCH 5

(a) an offense that has as an element the use,

attempted use, or threatened use of physical

force against the person or property of

another, or

(b) any other offense that is a felony and that,

by its nature, involves a substantial risk that

physical force against the person or property

of another may be used in the course of

committing the offense.

The Immigration Judge (IJ) agreed with DHS that first-

degree burglary in California is a crime of violence. Citing

§ 16(b) and United States v. Becker, 919 F.2d 568, 573 (9th

Cir. 1990), the IJ explained that “unlawful entry into a

residence is by its very nature an offense where is apt to be

violence [sic], whether in the efforts of the felon to escape or

in the efforts of the occupant to resist the felon.” Because the

charging documents for each conviction alleged an unlawful

entry, and because the term of imprisonment for each

conviction was greater than one year, the IJ determined that

these convictions were crimes of violence. On the basis of

this conclusion, the IJ held that petitioner was removable and

ineligible for any relief. The BIA dismissed petitioner’s

appeal on the same ground. Citing § 16(b) and Becker, the

BIA concluded that “[e]ntering a dwelling with intent to

commit a felony is an offense that by its nature carries a

substantial risk of the use of force,” and therefore affirmed

the IJ’s holding that petitioner was convicted of a crime of

violence.2

2

Notwithstanding the fact that the BIA appeared to consider only the

petitioner’s 2007 conviction, the government argues in this case that both

of petitioner’s first-degree burglary convictions are crimes of violence

6 DIMAYA V. LYNCH

Petitioner filed a timely petition with this Court for

review of the BIA’s decision. After the parties argued this

case, the United States Supreme Court decided Johnson and,

because the definition of a crime of violence that the BIA

relied on in this case is similar to the unconstitutional

language in ACCA’s residual clause,3 we ordered

supplemental briefing and held a supplemental oral argument

regarding whether § 16(b), as incorporated into the INA, is

also unconstitutionally vague. We have jurisdiction under

8 U.S.C. § 1252(a)(2)(D) to review questions of law,

including whether language in the immigration statutes is

void for vagueness. See Alphonsus v. Holder, 705 F.3d 1031,

1036–37 (9th Cir. 2013). That question, as a pure question of

law, receives de novo review from this Court. Aguilar-Ramos

v. Holder, 594 F.3d 701, 704 (9th Cir. 2010).

II

The Fifth Amendment’s Due Process Clause “requires

that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Alphonsus,

705 F.3d at 1042 (quoting Kolender v. Lawson, 461 U.S. 352,

under 18 U.S.C. § 16(b). This discrepancy is immaterial, as the same

analysis applies to both convictions.

3

The subsection of ACCA that includes the residual clause defines a

“violent felony” as “any crime punishable by imprisonment for a term

exceeding one year . . . that . . . is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added). As the Court noted in Johnson, the italicized words of

this definition are known as the residual clause. 135 S. Ct. at 2555–56.

DIMAYA V. LYNCH 7

357 (1983)). Although most often invoked in the context of

criminal statutes, the prohibition on vagueness also applies to

civil statutes, including those concerning the criteria for

deportation. Jordan v. De George, 341 U.S. 223, 231 (1951)

(“Despite the fact that this is not a criminal statute, we shall

nevertheless examine the application of the vagueness

doctrine to this case. We do this in view of the grave nature

of deportation.”); see also A.B. Small Co. v. Am. Sugar Ref.

Co., 267 U.S. 233, 239 (1925) (“The defendant attempts to

distinguish [prior vagueness] cases because they were

criminal prosecutions. But that is not an adequate distinction.

The ground or principle of the decisions was not such as to be

applicable only to criminal prosecutions.”).

Previously, we have recognized the vagueness doctrine’s

applicability in the context of withholding of removal

“because of the harsh consequences attached to . . . denial of

withholding of removal.” Alphonsus, 705 F.3d at 1042

(citing Jordan, 341 U.S. at 230–31). In this case, Petitioner

challenges a statute as unconstitutionally vague in the context

of denial of cancellation of removal.

For due process purposes, this context is highly analogous

to denial of withholding of removal because both pose the

harsh consequence of almost certain deportation. Under

withholding of removal, a non-citizen who is otherwise

removable cannot be deported to his home country if he

establishes that his “life or freedom would be threatened in

that country because of [his] race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A). Under cancellation of removal,

immigration authorities may cancel the removal of a lawful

permanent resident who satisfies certain criteria based on

length of residency, good behavior, and exceptional hardship.

8 DIMAYA V. LYNCH

Id. § 1229b(b)(1). Non-citizens who commit certain criminal

offenses are ineligible for these forms of relief. See id.

§§ 1231(b)(3)(B)(ii), 1229b(b)(1)(C). As with denial of

withholding of removal, then, denial of cancellation of

removal renders an alien ineligible for relief, making

deportation “a virtual certainty.” United States v. Bonilla,

637 F.3d 980, 984 (9th Cir. 2011).

The government argues that our circuit’s reliance on

Jordan “is misguided as Jordan did not authorize vagueness

challenges to deportation statutes.” We find this suggestion

baffling. Jordan considered whether the term “crime

involving moral turpitude” in section 19(a) of the

Immigration Act of 1917, a type of offense that allowed for

a non-citizen to “be taken into custody and deported,” was

void for vagueness. 341 U.S. at 225–31 (emphasis added).

In considering this challenge, the Court explicitly rejected the

argument that the vagueness doctrine did not apply. Id. at

231. The government also argues that subsequent Supreme

Court decisions rejected due process challenges to various

immigration statutes. See Marcello v. Bonds, 349 U.S. 302,

314 (1955); Galvan v. Press, 347 U.S. 522, 530–31 (1954);

Harisiades v. Shaughnessy, 342 U.S. 580, 588–91 (1952).

None of these cases, however, suggests that the Due Process

Clause does not apply to deportation proceedings. Nor could

they, for it “is well established that the Fifth Amendment

entitles aliens to due process of law in deportation

proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003)

(internal quotation marks omitted).

As the Supreme Court recognized in Jordan, a necessary

component of a non-citizen’s right to due process of law is

the prohibition on vague deportation statutes. Recently, the

Supreme Court noted the need for “efficiency, fairness, and

DIMAYA V. LYNCH 9

predictability in the administration of immigration law.”

Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015). Vague

immigration statutes significantly undermine these interests

by impairing non-citizens’ ability to “anticipate the

immigration consequences of guilty pleas in criminal court.”

Id. (internal quotation marks omitted); see also Padilla v.

Kentucky, 559 U.S. 356, 364 (2010) (“[A]ccurate legal advice

for noncitizens accused of crimes has never been more

important” because “deportation is an integral part—indeed,

sometimes the most important part—of the penalty that may

be imposed on noncitizen defendants who plead guilty to

specified crimes.” (footnote omitted)). For these reasons, we

reaffirm that petitioner may bring a void for vagueness

challenge to the definition of a “crime of violence” in the

INA.4

III

To understand Johnson’s effect on this case, it is helpful

to view §16(b), as incorporated into the INA, alongside the

residual clause at issue in Johnson. The INA provides for the

removal of non-citizens who have been “convicted of an

aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Its

definition of an aggravated felony includes numerous

offenses, including “a crime of violence (as defined in section

16 of Title 18 . . . ).” 8 U.S.C. § 1101(a)(43)(F). The sub-

section of 18 U.S.C. § 16 that the BIA relied on in this case

defines a crime of violence as an “offense that is a felony and

4

Several other Circuit Courts of Appeals have also entertained void for

vagueness challenges to immigration statutes. See Mhaidli v. Holder,

381 Fed. App’x 521, 525–26 (6th Cir. 2010) (unpublished); Arriaga v.

Mukasey, 521 F.3d 219, 222 (2d Cir. 2008); Garcia-Meza v. Mukasey,

516 F.3d 535, 536 (7th Cir. 2008).

10 DIMAYA V. LYNCH

that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used

in the course of committing the offense.” 18 U.S.C. § 16(b).

Had Congress written out the relevant definition in full

instead of relying on cross-referencing, a lawful permanent

resident would be removable if “convicted of an offense that

is a felony and that, by its nature, involves a substantial risk

that physical force against the person or property of another

may be used in the course of committing the offense”

(emphasis added). The language in ACCA that Johnson held

unconstitutional is similar. The ACCA provision defined a

“violent felony” as “any crime punishable by imprisonment

for a term exceeding one year [i.e., a felony] . . . that . . .

involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added). Importantly, both the provision at issue

here and ACCA’s residual clause are subject to the same

mode of analysis. Both are subject to the categorical

approach, which demands that courts “look to the elements

and the nature of the offense of conviction, rather than to the

particular facts relating to petitioner’s crime.”5 Leocal v.

5

Although it is largely irrelevant for the purposes of this case, the

dissent’s characterization of the categorical approach is incorrect. The

dissent correctly explains that categorical approach cases such as

Descamps v. United States, 133 S. Ct. 2276 (2013), Shepard v. United

States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 575

(1990) hold that a state conviction must include all elements of the

equivalent federal generic offense to qualify as a violent felony. The

dissent then goes on to assert, incorrectly, that those cases, which deal

with ACCA, shed light on how to interpret § 16(a). Taylor, Shepard, and

Descamps tell us nothing about § 16(a), however, because they do not

interpret § 924(e)(2)(B)(i)—the subsection of ACCA with language

identical to § 16(a). Instead, those cases consider a different

subsection—the list of enumerated felonies that appears in

§ 924(e)(2)(B)(ii), of which burglary is one. See Descamps, 133 S. Ct. at

DIMAYA V. LYNCH 11

Ashcroft, 543 U.S. 1, 7 (2004). Specifically, courts

considering both § 16(b) and the residual clause must decide

what a “‘usual or ordinary’ violation” of the statute entails

and then determine how great a risk of injury that “ordinary

case” presents. Rodriguez-Castellon v. Holder, 733 F.3d 847,

854 (9th Cir. 2013) (quoting United States v. Ramos-Medina,

706 F.3d 932, 938 (9th Cir. 2012)).

In Johnson, the Supreme Court recognized two features

of ACCA’s residual clause that “conspire[d] to make it

unconstitutionally vague.” 135 S. Ct. at 2557. First, the

Court explained, the clause left “grave uncertainty” about

“deciding what kind of conduct the ‘ordinary case’ of a crime

involves.” Id. That is, the provision “denie[d] fair notice to

defendants and invite[d] arbitrary enforcement by judges”

because it “tie[d] the judicial assessment of risk to a judicially

imagined ‘ordinary case’ of a crime, not to real-world facts or

statutory elements.” Id. Second, the Court stated, ACCA’s

residual clause left “uncertainty about how much risk it takes

for a crime to qualify as a violent felony.” Id. at 2558. By

combining these two indeterminate inquiries, the Court held,

“the residual clause produces more unpredictability and

arbitrariness than the Due Process Clause tolerates.”6 Id. On

2281; Shepard, 544 U.S. at 16–17; Taylor, 495 U.S. at 581–82. Because

§ 16 does not include any enumerated felonies in either subsection (a) or

(b), those cases are inapplicable.

6

The dissent essentially agrees with this reading except that it argues

that Johnson “only prohibits uses [of § 16(b)] that leave uncertain both

how to estimate the risk and amount of risk necessary to qualify as a

violent crime.” Nothing in Johnson, however, suggests that the Court

considered the constitutionality of ACCA’s residual clause in reference to

the crime Johnson actually committed. To the contrary, the Court never

discussed Johnson’s predicate offense—unlawful possession of a short-

12 DIMAYA V. LYNCH

that ground it held the residual clause void for vagueness.

The Court’s reasoning applies with equal force to the similar

statutory language and identical mode of analysis used to

define a crime of violence for purposes of the INA. The

result is that because of the same combination of

indeterminate inquiries, § 16(b) is subject to identical

unpredictability and arbitrariness as ACCA’s residual clause.

In sum, a careful analysis of the two sections, the one at issue

here and the one at issue in Johnson, shows that they are

subject to the same constitutional defects and that Johnson

dictates that § 16(b) be held void for vagueness.

A

In Johnson, the Supreme Court condemned ACCA’s

residual clause for asking judges “to imagine how the

idealized ordinary case of the crime subsequently plays out.”

Id. at 2557–58. To illustrate its point, the Court asked

rhetorically whether the “ordinary instance” of witness

tampering involved “offering a witness a bribe” or instead

“threatening a witness with violence.” Id. at 2557; see also

id. at 2558 (It is just as likely that “a violent encounter may

ensue” during an attempted burglary as it is that “any

confrontation that occurs . . . ‘consist[s] of nothing more than

the occupant’s yelling “Who’s there?” from his window, and

the burglar’s running away.’” (quoting James v. United

barreled shotgun—but instead held in absolute terms that “imposing an

increased sentence under the residual clause of the Armed Career Criminal

Act violates the Constitution’s guarantee of due process.” Johnson, 135 S.

Ct. at 2563. Johnson therefore clearly holds that the residual clause is

unconstitutionally vague in all instances, not just for some subset of

crimes.

DIMAYA V. LYNCH 13

States, 550 U.S. 192, 211 (2007), and id. at 226 (Scalia, J.,

dissenting))).7

As with ACCA’s residual clause, the INA’s crime of

violence provision requires courts to “inquire whether ‘the

conduct encompassed by the elements of the offense, in the

ordinary case, presents’” a substantial risk of force. Delgado-

Hernandez v. Holder, 697 F.3d 1125, 1128 (9th Cir. 2012)

(quoting James, 550 U.S. at 208); see also Rodriguez-

Castellon, 733 F.3d at 854. We see no reason why this aspect

of Johnson would not apply here, and indeed the government

concedes that it does. As with the residual clause, the INA’s

definition of a crime of violence at issue in this case offers

“no reliable way to choose between these competing

accounts” of what a crime looks like in the ordinary case.

Johnson, 135 S. Ct. at 2558.

B

In many circumstances, of course, statutes require judges

to apply standards that measure various degrees of risk. See

7

“Does the ordinary burglar invade an occupied home by night or an

unoccupied home by day?” Johnson, 135 S. Ct. at 2558. It seems that

one arrives at a different answer about what the “ordinary case” of

burglary involves whether one uses “[g]ut instinct” or “statistical

analysis.” Id. at 2557 (quoting United States v. Mayer, 560 F.3d 948, 952

(9th Cir. 2009) (Kozinski, C.J., dissenting from denial of rehearing en

banc)). Although many people surely imagine the possibility of a violent

encounter when they picture burglary, recent government statistics show

that only about seven percent of burglaries nationwide involved incidents

of violence. Bureau of Justice Statistics, National Crime Victimization

Survey: Victimization During Household Burglaries 1 (Sept. 2010),

http://www.bjs.gov/content/pub/pdf/vdhb.pdf. Such statistics only

highlight the arbitrary nature of this inquiry, even in the seemingly easy

case of burglary.

14 DIMAYA V. LYNCH

Supplemental Brief for Respondent at 1a, Johnson v. United

States, 135 S. Ct. 2551 (2015) (No. 13-7120) (cataloguing

federal statutes). The vast majority of those statutes pose no

vagueness problems because they “call for the application of

a qualitative standard such as ‘substantial risk’ to real-world

conduct.”8 Johnson, 135 S. Ct. at 2561. The statute at issue

in Johnson was not one of those statutes, however. Nor is the

provision at issue here. If the uncertainty involved in

describing the “ordinary case” of a crime was not enough, its

combination with the uncertainty in determining the degree

of risk was. ACCA’s violent felony definition requires

judges to apply “an imprecise ‘serious potential risk’9

8

The dissent argues that any “person intent on committing a burglary

inherently contemplates the risk of using force should his nefarious

scheme be detected” and then asks “Is this not what the Supreme Court

was referring to when it noted ‘we do not doubt the constitutionality of

laws that call for application of a qualitative standard such as “substantial

risk” to real-world conduct?’” Dissent at 41 (quoting Johnson, 135 S. Ct.

at 2561). Plainly not. As the dissent’s use of the word “inherently”

proves, the dissent’s argument does not rest on the facts of an actual

burglary but instead on the dissent’s conception of burglary in the ordinary

case. A statute that allowed courts to evaluate the record to determine

whether a defendant actually engaged in violence would fall within the

language the dissent cites. However, as the Supreme Court has repeatedly

made clear, when applying the categorical approach that ACCA and

§ 16(b) demand, courts must consider “what offense the noncitizen was

‘convicted of’ . . . not what acts he committed.” Moncrieffe, 133 S. Ct. at

1678.

9

ACCA’s residual clause required courts to evaluate whether an offense

posed “a serious potential risk” while the relevant INA definition asks

whether an offense poses “a substantial risk.” Compare 18 U.S.C.

§ 924(e)(2)(B)(ii), with id. § 16(b). Measuring whether an offense poses

a “substantial” risk, however, is no less arbitrary than measuring whether

it poses a “serious potential” one, and the government offers no suggestion

to the contrary.

DIMAYA V. LYNCH 15

standard . . . to [the] judge-imagined abstraction” of a crime

in the ordinary case. Id. at 2558. The same is equally true of

the INA’s definition of a crime of violence at issue here.

Section 16(b) gives judges no more guidance than does the

ACCA provision as to what constitutes a substantial enough

risk of force to satisfy the statute. Accordingly, Johnson’s

holding with respect to the imprecision of the serious

potential risk standard is also clearly applicable to § 16(b).

As with ACCA’s residual clause, § 16(b)’s definition of a

crime of violence, combines “indeterminacy about how to

measure the risk posed by a crime with indeterminacy about

how much risk it takes for the crime to qualify as” a crime of

violence.10 135 S. Ct. at 2558.

10

At the supplemental oral argument, the government argued that two

recent decisions from other circuit courts of appeals conflict with our

holding in this case. See Ortiz v. Lynch, No. 14-2428, 2015 WL 4645869

(8th Cir. Aug. 6, 2015); United States v. Fuertes, No. 13-4755, 2015 WL

4910113 (4th Cir. Aug. 18, 2015). Neither case, however, is of any help

to the government. The Eighth Circuit noted that Ortiz “does not

implicate the analysis in” Johnson because, in Ortiz, the government

argued that the petitioner’s conviction qualified as a crime of violence

under § 16(a), a completely different statutory definition. Ortiz, 2015 WL

464869 at *2 & n.2. Indeed § 16(a) is highly similar to analogous

language in ACCA, 18 U.S.C. § 924(e)(2)(B)(i), that Johnson left

untouched. 135 S. Ct. at 2563 (“Today’s decision does not call into

question . . . the remainder of the Act’s definition of a violent felony.”).

Fuertes is of even less help, if possible. There, the Fourth Circuit held

that it did not need to reach the question whether Johnson applied to

language similar to § 16(b) that appears in 18 U.S.C. § 924(c)(3)(B)

because, in any case, the defendant’s offense did not satisfy the statutory

language in question. See Fuertes, 2015 WL 4910113 at *9–10 & 9 n.5.

Finally, the dissent cites In re Gieswein, No. 15-6138, 2015 WL 5534388

(10th Cir. Sept. 21, 2015), in which the Tenth Circuit noted that the

“definition [that survived Johnson] of ‘violent felony’ under the ACCA

includes a felony conviction for ‘burglary.’” Id. at *2 n.2. Yes, but only

because the portion of ACCA that survived includes a list of four

16 DIMAYA V. LYNCH

C

Notwithstanding the undeniable identity of the

constitutional defects in the two statutory provisions, the

government and dissent offer several unpersuasive arguments

in an attempt to save the INA provision at issue in this case.

First, the government and dissent argue that the Supreme

Court found ACCA’s standard to be arbitrary in part because

the residual clause “force[d] courts to interpret ‘serious

potential risk’ in light of the four enumerated crimes” in the

provision,11 crimes which are “far from clear in respect to the

degree of risk each poses.” Id. (quoting Begay v. United

States, 553 U.S 137, 143 (2008) (internal quotation marks

omitted)). It is true that, after the Court set forth its holding

in Johnson, it cited the provision’s four enumerated offenses

in responding to the government’s argument that the Court’s

holding would cast doubt on the many criminal statutes that

include language similar to the indeterminate term “serious

potential risk.” Id. at 2561. In doing so, however, it stated

that while the listed offenses added to the uncertainty, the

fundamental reason for the Court’s holding was the residual

clause’s “application of the ‘serious potential risk’ standard

enumerated felonies, of which burglary is one. That, after Johnson,

ACCA continues to cover burglary through one of its enumerated offenses

says nothing about whether § 16(b) can be constitutionally applied to

burglary or any other offense.

11

The relevant provision of ACCA defined a “violent felony” as any

felony that is “burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). As noted above

in footnote 3, the “residual clause” is defined as the portion of provision

that follows “explosives.”

DIMAYA V. LYNCH 17

to an idealized ordinary case of the crime.”12 Id. In short,

this response clearly reiterated that what distinguishes

ACCA’s residual clause from many other provisions in

criminal statutes was, consistent with its fundamental

holding, the use of the “ordinary case” analysis. Johnson

therefore made plain that the residual clause was void for

vagueness in and of itself for the reasons stated in reaching its

decision, and not because of the clause’s relation to the four

listed offenses.13

Next, the government argues that ACCA’s residual clause

requires courts to consider the risk that would arise after

completion of the offense, see Johnson, 135 S. Ct. at 2557,

and that § 16(b) applies only to violence occurring “in the

course of committing the offense,” 18 U.S.C. § 16(b). First,

we doubt that this phrase actually creates a distinction

between the two clauses. For example, we have consistently

held that California’s burglary statute (the very statute at

issue in this case) is a crime of violence for the purposes of

the INA precisely because of the risk that violence will ensue

12

The Solicitor General’s brief in Johnson also recognized that because

section 16(b), as applied in the INA, “requires a court to identify the

ordinary case of the commission of the offense,” it is “equally susceptible

to [Johnson’s] central objection to the residual clause.” Supplemental

Brief for Respondent at 22–23, Johnson v. United States, 135 S. Ct. 2551

(2015) (No. 13-7120).

13

Although Johnson concluded that the enumerated offenses added to

the residual clause’s indeterminacy, it could well be argued that, if

anything, § 16(b) is more vague than the residual clause because of its

lack of enumerated examples. To be sure, ACCA’s enumerated examples

are “far from clear in respect to the degree of risk each poses.” Johnson,

135 S. Ct. at 2558. However, they provide at least some guidance as to

the sort of offenses Congress intended for the provision to cover. Section

16(b), by contrast, provide no such guidance at all.

18 DIMAYA V. LYNCH

after the defendant has committed the acts necessary to

constitute the offense. Lopez-Cardona v. Holder, 662 F.3d

1110, 1112 (9th Cir. 2011) (describing the risk that a burglar

“will encounter one of its lawful occupants, and use physical

force against that occupant either to accomplish his illegal

purpose or to escape apprehension” (quoting Becker,

919 F.2d at 571)).14 By the time the risk of physical force

against an occupant arises, however, the defendant has

frequently already satisfied the elements of the offense of

burglary under California law. See Cal. Penal Code § 459

(defining burglary as “enter[ing] any house, room, apartment,

[etc.] . . . with intent to commit grand or petit larceny or any

felony”). More important, even if such a distinction did exist,

it would not save the INA’s definition of a crime of violence

from unconstitutionality. The Court, in Johnson, held

ACCA’s residual clause to be unconstitutionally vague

because it combined the indeterminate inquiry of “how to

measure the risk posed by a crime” in the ordinary case with

“indeterminacy about how much risk it takes for the crime to

qualify as a violent felony.” 135 S. Ct. at 2558. This

reasoning applies equally whether the inquiry considers the

risk of violence posed by the commission and the aftereffects

of a crime, or whether it is limited to consideration of the risk

14

In holding that burglary under California law constituted a crime of

violence in Lopez-Cardona, we were not asked to consider the question

of § 16(b)’s constitutionality; nor did we do so. For the same reason, the

dissent’s lengthy discussion of this court’s prior holdings regarding

burglary and § 16(b) is irrelevant. Here, we do not consider what offenses

fall within § 16(b) but instead whether the provision may be

constitutionally applied. That latter question is answered here and, as a

result, all of our prior cases relating to which offenses fall within the scope

of that provision are to that extent of no further force or effect.

DIMAYA V. LYNCH 19

of violence posed by acts necessary to satisfy the elements of

the offense.15

The government also argues that § 16(b) has not

generated the same degree of confusion among courts that

ACCA’s residual clause generated. It notes that, in contrast

to the five residual clause cases that the Supreme Court has

decided in addition to Johnson, the Court has decided only a

single case interpreting section 16(b). See Leocal, 543 U.S.

at 10–11. That the Supreme Court has decided more residual

clause cases than § 16(b) cases, however, does not indicate

that it believes the latter clause to be any more capable of

consistent application. We can discern very little regarding

15

The government also suggested at the supplemental oral argument that

our decision in this case would require holding that Johnson overruled

Leocal v. Ashcroft, 543 U.S. 1 (2004), which stated in dicta that burglary

is the “classic example” of an offense that would satisfy § 16(b). Id. at 10.

The dissent now adopts a related argument: that this statement from

Leocal proves that “there is no unconstitutional vagueness in this case.”

Dissent at 42. In deciding whether the offense of “driving under the

influence of alcohol . . . and causing serious bodily injury” qualified as a

crime of violence, however, Leocal said nothing about whether the

statutory language in § 16(b) is void for vagueness. Moreover, Johnson

casts doubt on the notion that burglary could easily be characterized as a

crime that involves a substantial risk of violence under § 16(b). See

135 S. Ct. at 2557 (“The act of . . . breaking and entering into someone’s

home does not, in and of itself, normally cause physical injury.”). Finally,

even if there were some “straightforward cases” or categories of cases

under § 16(b), Johnson squarely rejected the argument that “a vague

provision is constitutional merely because there is some conduct that

clearly falls within the provision’s grasp,” id. at 2561–62, and clearly

stated that the residual clause was void for vagueness in all applications,

id. at 2563. There is therefore no need in this opinion to consider the

continued validity of the statement in Leocal cited by the government and

dissent.

20 DIMAYA V. LYNCH

the merits of an issue from the composition of the Supreme

Court’s docket. The Court has

repeatedly indicated that a denial of certiorari

means only that, for one reason or another

which is seldom disclosed, and not

infrequently for conflicting reasons which

may have nothing to do with the merits and

certainly may have nothing to do with any

view of the merits taken by a majority of the

Court, there were not four members of the

Court who thought the case should be heard.

Daniels v. Allen, 344 U.S. 443, 492 (1953); see also Hughes

Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n.1

(1973) (describing the “well-settled view that denial of

certiorari imparts no implication or inference concerning the

Court’s view of the merits”). Moreover, the Supreme Court

in recent years has decided substantially more federal

criminal appeals than immigration appeals. The Court’s

history of deciding ACCA residual clause cases in greater

numbers than INA crime of violence cases is thus consistent

with its greater interest in federal criminal cases than in

immigration cases. In fact, over this period the ratio of

federal criminal cases to immigration cases significantly

exceeds the ratio of ACCA residual clause cases to INA

crime of violence cases on which the government relies.16

16

During the nine terms preceding the 2015 term, the Supreme Court

decided a total of 85 federal criminal appeals versus only 12 immigration

appeals. These statistics come from the Harvard Law Review, which

compiles statistics each year after the completion of the Supreme Court

term. Every version of “The Statistics” includes a table that records the

number of cases decided each year by “subject matter.” They are

available at http://harvardlawreview.org/category/statistics/.

DIMAYA V. LYNCH 21

IV

In Johnson, the Supreme Court held that ACCA’s residual

clause “produces more unpredictability and arbitrariness than

the Due Process Clause tolerates” by “combining

indeterminacy about how to measure the risk posed by a

crime with indeterminacy about how much risk it takes for

the crime to qualify as a violent felony.” 135 S. Ct. at 2558.

Although the government can point to a couple of minor

distinctions between the text of the residual clause and that of

the INA’s definition of a crime of violence, none undermines

the applicability of Johnson’s fundamental holding to this

case. As with ACCA, section 16(b) (as incorporated in

8 U.S.C. §1101(a)(43)(F)) requires courts to 1) measure the

risk by an indeterminate standard of a “judicially imagined

‘ordinary case,’” not by real world-facts or statutory elements

and 2) determine by vague and uncertain standards when a

risk is sufficiently substantial. Together, under Johnson,

these uncertainties render the INA provision

unconstitutionally vague.17

We GRANT the petition for review and REMAND to the

BIA for further proceedings consistent with this opinion.

17

Our decision does not reach the constitutionality of applications of

18 U.S.C. § 16(b) outside of 8 U.S.C. §1101(a)(43)(F) or cast any doubt

on the constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of

violence.

22 DIMAYA V. LYNCH

CALLAHAN, Circuit Judge, dissenting:

Contrary to the majority’s perspective, the Supreme

Court’s opinion in Johnson v. United States, 135 S. Ct. 2551

(2015), does not infect 18 U.S.C. § 16(b) —or other

statutes—with unconstitutional vagueness. Rather, the

Supreme Court carefully explained that the statute there in

issue, a provision of the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e)(2)(B), is unconstitutionally

vague for two specific reasons: the clause (1) “leaves grave

uncertainty about how to estimate the risk posed by a crime”;

and (2) “leaves uncertainty about how much risk it takes for

a crime to qualify as a violent crime.” Id. at 2557–58. In

contrast, §16(b), as it has been interpreted by the Supreme

Court and the Ninth Circuit, has neither of these

shortcomings. The majority’s contrary conclusion fails to

appreciate the purpose of § 16(b), elevates the Supreme

Court’s reference to “ordinary cases” from an example to a

rule, and ignores the Court’s statement that it was not calling

other statutes into question (which explains why the Court did

not even mention Leocal v. Ashcraft, 543 U.S. 1 (2004)).

Accordingly, I dissent.

Our criminal and immigration laws are not as simple as

the majority opinion implies. Accordingly, I first describe the

purpose of § 16 and how courts have interpreted the statute,

before reviewing the Supreme Court’s decision in Johnson,

and concluding that the twin concerns expressed by the

Supreme Court in Johnson do not infect § 16(b).

I.

Title 18 U.S.C. § 16 contains two distinct definitions of

“crime of violence,” with distinct purposes, effects, and

DIMAYA V. LYNCH 23

judicial pedigrees. Subsection (a) defines “crime of violence”

as “an offense that has as an element the use, attempted use,

or threatened use of physical force against the person or

property of another.” (emphasis added). Subsection (b) sets

forth a distinct definition that covers offenses that are not

within subsection (a)’s definition. It states that “crime of

violence” means “any other offense that is a felony and that,

by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the

course of committing the offense.” It follows that an offense

that is a “crime of violence” under subsection (a) also meets

the criteria in subsection (b), but that subsection (b) covers

offenses that do not meet the criteria in subsection (a). These

subsections serve different functions with different

consequences.

An appreciation of the differences between the

subsections and their roles informs my understanding of the

Supreme Court’s opinions in Descamps v. United States,

133 S. Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S. Ct.

1678 (2013). Although the terms “crime of violence,”

“violent felony,” and “aggravated felonies” may appear to be

synonymous to a lay person, courts have recognized that, as

used in their statutory contexts, they are distinct terms of art

covering distinct acts with different legal consequences.

A.

In Descamps, the Government sought an enhancement of

Descamps’ sentence under the ACCA, 18 U.S.C. § 924(e), on

the basis that his California conviction for burglary was a

24 DIMAYA V. LYNCH

“violent felony.”1 Descamps, 133 S. Ct. at 2281–82. In

Taylor v. United States, 495 U.S. 575 (1990), the Supreme

Court had established a “rule for determining when a

defendant’s prior conviction counts as one of ACCA’s

enumerated predicate offenses.” Descamps, 133 S. Ct. at

2283. In other words, Taylor focused on whether the state

crime and the enumerated federal predicate offense had the

same elements. In Taylor, the Court first determined the

federal definition of burglary, and then considered how courts

were to determine whether a state conviction met that

definition.2 The Court, concerned with the substantive and

practical problems of determining that the state conviction

met the criteria for a federal offense, set forth a “categorical

approach” instructing sentencing courts to look at the

1

The statute, 18 U.S.C. § 924(e)(2)(B), reads, in relevant part:

the term “violent felony” means any crime punishable

by imprisonment for a term exceeding one year, or any

act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that

would be punishable by imprisonment for such term if

committed by an adult, that–

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another.

2

In Taylor, the Court stated: “[w]e conclude that a person has been

convicted of burglary for purposes of a § 924(e) enhancement if he is

convicted of any crime, regardless of its exact definition or label, having

the basic elements of unlawful or unprivileged entry into, or remaining in,

a building or structure, with intent to commit a crime.” 495 U.S. at 599.

DIMAYA V. LYNCH 25

statutory definitions and not to the particular facts underlying

a conviction.3 Descamps, 133 S. Ct. at 2283 (citing Taylor,

495 U.S. at 600).

In Shepard v United States, 544 U.S. 13 (2005), the Court

had established the “modified categorical approach,” which

allows a sentencing court to scrutinize a restricted set of

materials to determine whether a state conviction matches the

generic federal offense. The Supreme Court later explained

in Descamps that the modified categorical approach was a

tool “to identify, from among several alternatives, the crime

of conviction so that the court can compare it to the generic

offense.”4 133 S. Ct. at 2285. The Court reiterated that its

3

In Taylor, the Supreme Court noted:

Our present concern is only to determine what offenses

should count as “burglaries” for enhancement purposes.

The Government remains free to argue that any

offense—including offenses similar to generic

burglary—should count towards enhancement as one

that “otherwise involves conduct that presents a serious

potential risk of physical injury to another” under

§ 924(e)(2)(B)(ii).

495 U.S. at 600 n.9.

4

The Supreme Court explained:

The modified approach thus acts not as an exception,

but instead as a tool. It retains the categorical

approach’s central feature: a focus on the elements,

rather than the facts, of a crime. And it preserves the

categorical approach’s basic method: comparing those

elements with the generic offense’s. All the modified

approach adds is a mechanism for making that

comparison when a statute lists multiple, alternative

26 DIMAYA V. LYNCH

“elements-centric” approach was based on three grounds:

(1) “it comports with ACCA’s test and history”; (2) “it avoids

the Sixth Amendment concerns that would arise from

sentencing courts making findings of fact that properly

belong to juries”; and (3) “it averts the practical difficulties

and potential unfairness of a factual approach.” Id. at 2287

(internal citation omitted).

Similar concerns with fairness underlie the Supreme

Court’s opinion in Moncrieffe, 133 S. Ct. 1678. The Court

stated that it granted certiorari “to resolve a conflict among

the Courts of Appeals with respect to whether a conviction

under a statute that criminalizes conduct described by both

[21 U.S.C.] § 841’s felony provision and its misdemeanor

provision, such as a statute that punishes all marijuana

distribution without regard to the amount or remuneration, is

a conviction for an offense that ‘proscribes conduct

punishable as a felony under’ the CSA [Controlled Substance

Act].” Id. at 1684. This, in turn, required a determination of

whether the state conviction qualified as an “aggravated

felony” under the Immigration and Nationality Act (INA),

8 U.S.C. § 1101 et seq.5 Id. The Court, accordingly, applied

elements, and so effectively creates “several different

. . . crimes.” Nijhawan [v. Holder], 557 U.S. [29] 41

[(2009]. If at least one, but not all of those crimes

matches the generic version, a court needs a way to find

out which the defendant was convicted of.

Descamps, 133 S. Ct. at 2285.

5

The INA provides that an alien “convicted of an aggravated felony” is

removable, § 1227; is not eligible for asylum, § 1158(b)(2)(a)(ii); and is

not eligible for cancellation of removal or adjustment of status,

§ 1229b(a)(3).

DIMAYA V. LYNCH 27

the categorical approach “to determine whether the state

offense is comparable to an offense listed in the INA.” Id. It

explained that in order to satisfy the categorical approach, the

state drug offense “must ‘necessarily’ proscribe conduct that

is an offense under the CSA, and the CSA must ‘necessarily’

prescribe felony punishment for that offense.” Id. at 1685.

The Court concluded that Moncrieffe’s state conviction failed

to meet this standard, and accordingly, he was not convicted

of an aggravated felony. Id. at 1687.

In both Descamps and Moncrieffe, the critical inquiry was

whether the underlying state criminal conviction fit within a

generic federal definition of a crime so that a defendant could

be expected to have asserted all relevant defenses in his state

trial. The underlying concerns had been set forth by the

Supreme Court in Shepard:

Developments in the law since Taylor, and

since the First Circuit’s decision in Harris,

provide a further reason to adhere to the

demanding requirement that any sentence

under the ACCA rest on a showing that a

prior conviction “necessarily” involved (and

a prior plea necessarily admitted) facts

equating to generic burglary. The Taylor

Court, indeed, was prescient in its discussion

of problems that would follow from allowing

a broader evidentiary enquiry. “If the

sentencing court were to conclude, from its

own review of the record, that the defendant

[who was convicted under a nongeneric

burglary statute] actually committed a generic

burglary, could the defendant challenge this

conclusion as abridging his right to a jury

28 DIMAYA V. LYNCH

trial?” 495 U.S. at 601. The Court thus

anticipated the very rule later imposed for the

sake of preserving the Sixth Amendment

right, that any fact other than a prior

conviction sufficient to raise the limit of the

possible federal sentence must be found by a

jury, in the absence of any waiver of rights by

the defendant. Jones v. United States,

526 U.S. 227, 243, n. 6 (1999); see also

Apprendi v. New Jersey, 530 U.S. 466, 490

(2000).

544 U.S. at 24 (alteration in original). Thus, for purposes

such as sentencing under the ACCA, a state conviction is

only an aggravated felony under § 16(a) if the court can fairly

conclude that the conviction included all the elements of a

federal offense.

B.

While 18 U.S.C. § 16(a) looks to whether the state

conviction contained the elements of a federal offense, the

Supreme Court and the circuit courts have recognized that

§ 16(b) asks a different question with different parameters

and consequences. In Leocal v. Ashcroft, 543 U.S. 1, a

unanimous Court held that a Florida conviction for driving

under the influence of alcohol was not a crime of violence

under § 16(a) or § 16(b). Id. at 4. The opinion describes

§ 16(b) as follows:

Section 16(b) sweeps more broadly than

§ 16(a), defining a crime of violence as

including “any other offense that is a felony

and that, by its nature, involves a substantial

DIMAYA V. LYNCH 29

risk that physical force against the person or

property of another may be used in the course

of committing the offense.” But § 16(b) does

not thereby encompass all negligent

misconduct, such as the negligent operation of

a vehicle. It simply covers offenses that

naturally involve a person acting in disregard

of the risk that physical force might be used

against another in committing an offense. . . .

The classic example is burglary. A burglary

would be covered under § 16(b) not because

the offense can be committed in a generally

reckless way or because someone may be

injured, but because burglary, by its nature,

involves a substantial risk that the burglar will

use force against a victim in completing the

crime.

543 U.S. at 10 (footnote omitted). Thus, when applying

§ 16(b), courts do not ask whether the state conviction

contained the elements of a federal offense, but whether there

was a “risk that the use of physical force against another

might be required in committing” the state crime. 18 U.S.C.

§ 16(b).

We most recently recognized this distinct treatment of

§ 16(b) in Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th

Cir. 2013). In this opinion, rendered after the Supreme Court

issued its decision in Descamps, we explained:

Under 18 U.S.C. § 16, the phrase “crime of

violence” has two meanings. First, under

§ 16(a), a state crime of conviction is a crime

of violence if it “has as an element the use,

30 DIMAYA V. LYNCH

attempted use, or threatened use of physical

force against the person or property of

another.” . . . Second, even if the state crime

does not include one of the elements listed in

§ 16(a), it is a “crime of violence” under

§ 16(b) if it is: (I) a felony; and (ii) “by its

nature, involves a substantial risk that

physical force against the person or property

of another may be used in the course of

committing the offense.” 18 U.S.C. § 16(b).

The Supreme Court has explained that § 16(b)

criminalizes conduct that “naturally involve[s]

a person acting in disregard of the risk that

physical force might be used against another

in committing an offense.” Leocal v.

Ashcroft, 543 U.S. 1, 10 (2004).

733 F.3d at 853–54.

Our holding in Rodriguez-Castellon is consistent with our

prior opinions recognizing that first-degree burglary under

California Penal Code § 459 remains an “aggravated felony”

under § 16(b) even if the state crime did not include an

element of the federal crime and thus was not an “aggravated

felony” under § 16(a). See United States v. Ramos-Medina,

706 F.3d 932, 937–38 (9th Cir. 2013).

In Chuen Piu Kwong v. Holder, 671 F.3d 872 (9th Cir.

2011), we explained:

The question for decision, then, is whether

Kwong’s [burglary] offense “by its nature,

involves a substantial risk that physical force

against the person or property of another may

DIMAYA V. LYNCH 31

be used in the course of [its commission].”

18 U.S.C. § 16(b).

We answered that question in the affirmative

some time ago in United States v. Becker,

919 F.2d 568, 573 (9th Cir. 1990), where we

held that “first-degree burglary under

California law is a ‘crime of violence’” as

defined by 18 U.S.C. § 16(b). See also United

States v. Park, 649 F.3d 1175, 1178–79 (9th

Cir. 2011). We pointed out in Becker that

“[a]ny time a burglar enters a dwelling with

felonious or larcenous intent there is a risk

that in the course of committing the crime he

will encounter one of its lawful occupants,

and use physical force against that occupant

either to accomplish his illegal purpose or to

escape apprehension.” 919 F.2d at 571

(footnote omitted).6

6

In response to Kwong’s argument that California’s definition of first-

degree burglary is broader than the generic federal definition, the Ninth

Circuit held:

These arguments are foreclosed, however, by our recent

decision in Lopez–Cardona v. Holder, 662 F.3d 1110

(9th Cir. 2011). Lopez–Cardona flatly held that, under

Becker, first-degree burglary in violation of California

Penal Code § 459 was a crime of violence within the

meaning of 18 U.S.C. § 16(b). Id. at 1113. It also held

that Aguila–Montes had no effect on that conclusion

because Aguila–Montes was based on a different

definition of “crime of violence”; Aguila–Montes held

only that a conviction under California Penal Code

§ 459 did not constitute a conviction for generic

burglary. Lopez–Cardona, 662 F.3d at 1113.

32 DIMAYA V. LYNCH

Id. at 878.

Similarly, in United States v. Avila, 770 F.3d 1100, 1105

(4th Cir. 2014), the Fourth Circuit concluded that “California

first-degree burglary qualifies as a crime of violence under

the residual clause of 18 U.S.C. § 16(b).” It held that it need

look no further than the Supreme Court’s opinion in Leocal,

543 U.S. at 10, in concluding that burglary was the classic

example of an offense covered by § 16(b).

Thus, the Supreme Court, our prior decisions, and the

Fourth Circuit, all recognize that the inquiries under § 16(a)

and § 16(b) are distinct, and that even though a state

conviction for burglary may not include an element of a

generic federal offense, as required to come within § 16(a), a

burglary conviction nonetheless involves a substantial risk of

physical force, and thus is covered by § 16(b).

II.

Having set forth the scope of § 16(b) and the courts’

treatment of the section, I turn to the Supreme Court’s

opinion in Johnson.

Aguila–Montes accordingly did not contradict or affect

Becker’s holding that first-degree burglary under § 459

is a crime of violence because it involves a substantial

risk that physical force may be used in the course of

committing the offense. Id. at 1111–12.

671 F.3d at 877–78.

DIMAYA V. LYNCH 33

A.

The Supreme Court held that the residual clause of the

Armed Career Criminal Act of 1984 violates the

Constitution’s guarantee of due process.7 The Court

concluded “that the indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice

to defendants and invites arbitrary enforcement by judges.”

Johnson, 135 S. Ct. at 2557. The Court concluded that two

features of the residual clause “conspire to make it

unconstitutional.” Id. at 2557. “In the first place, the residual

clause leaves grave uncertainty about how to estimate the risk

posed by a crime. It ties judicial assessment of risk to a

judicially imagined ‘ordinary case’ of a crime, not to real-

world facts or statutory elements.” Id. Second, “the residual

clause leaves uncertainty about how much risk it takes for a

crime to qualify as a violent felony.” Id. at 2558.

By asking whether the crime “otherwise

involves conduct that presents a serious

potential risk,” moreover, the residual clause

forces courts to interpret “serious potential

risk” in light of the four enumerated

crimes—burglary, arson, extortion, and

crimes involving the use of explosives. These

offenses are “far from clear in respect to the

degree of risk each poses.” Begay [v. United

7

The residual clause of the ACCA increased the prison term of a

defendant who had been convicted of “any crime punishable by

imprisonment for a term exceeding one year” that “is burglary, arson, or

extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B).

34 DIMAYA V. LYNCH

States], 553 U.S. [137] 143 [(2008)] . . . . By

combining indeterminacy about how to

measure the risk posed by a crime with

indeterminacy about how much risk it takes

for the crime to qualify as a violent felony, the

residual clause produces more

unpredictability and arbitrariness than the Due

Process Clause tolerates.

Id. at 2558.

The Court then reviewed its prior efforts to establish a

standard and concluded that “James, Chambers, and Sykes

failed to establish any generally applicable test that prevents

the risk comparison required by the residual clause from

devolving into guesswork and intuition.”8 Id. at 2559. The

Court further noted that in the lower courts, the residual

clause has created numerous splits and the clause has proved

nearly impossible to apply consistently.9 Id. at 2560. The

Court concluded that “[n]ine years’ experience trying to

8

James v. United States, 550 U.S. 192 (2007); Chambers v. United

States, 555 U.S. 122 (2009); and Sykes v. United States, 131 S. Ct. 2267

(2011).

9

The Court commented:

The most telling feature of the lower courts’ decisions

is not division about whether the residual clause covers

this or that crime (even clear laws produce close cases);

it is, rather, pervasive disagreement about the nature of

the inquiry one is supposed to conduct and the kinds of

factors one is supposed to consider.

Id. at 2560.

DIMAYA V. LYNCH 35

derive meaning from the residual clause convinces us that we

have embarked on a failed enterprise.” Id.

The Court stated, in rejecting the argument that because

there may be straightforward cases under the residual clause,

the clause is not constitutionally vague:

The Government and the dissent next point

out that dozens of federal and state criminal

laws use terms like “substantial risk,” “grave

risk,” and “unreasonable risk,” suggesting that

to hold the residual clause unconstitutional is

to place these provisions in constitutional

doubt. See post, at 2558–2559. Not at all.

Almost none of the cited laws links a phrase

such as “substantial risk” to a confusing list of

examples. “The phrase ‘shades of red,’

standing alone, does not generate confusion or

unpredictability; but the phrase ‘fire-engine

red, light pink, maroon, navy blue, or colors

that otherwise involve shades of red’

assuredly does so.” James, 550 U.S., at 230,

n. 7, (Scalia, J., dissenting). More

importantly, almost all of the cited laws

require gauging the riskiness of conduct in

which an individual defendant engages on a

particular occasion. As a general matter, we

do not doubt the constitutionality of laws that

call for the application of a qualitative

standard such as “substantial risk” to

real-world conduct; “the law is full of

instances where a man’s fate depends on his

estimating rightly . . . some matter of degree,”

Nash v. United States, 229 U.S. 373, 377

36 DIMAYA V. LYNCH

(1913). The residual clause, however,

requires application of the “serious potential

risk” standard to an idealized ordinary case of

the crime. Because “the elements necessary

to determine the imaginary ideal are uncertain

both in nature and degree of effect,” this

abstract inquiry offers significantly less

predictability than one “[t]hat deals with the

actual, not with an imaginary condition other

than the facts.” Int. Harvester Co. of Am. v.

Kentucky, 234 U.S. 216, 223 (1914).

Id. at 2561.

The Court also declined the dissent’s invitation “to save

the residual clause from vagueness by interpreting it to refer

to the risk posed by the particular conduct in which the

defendant engaged, not the risk posed by the ordinary case of

the defendant’s crime.” Id. at 2562. It explained:

In the first place, the Government has not

asked us to abandon the categorical approach

in residual-clause cases. In addition, Taylor

had good reasons to adopt the categorical

approach, reasons that apply no less to the

residual clause than to the enumerated crimes.

Taylor explained that the relevant part of the

Armed Career Criminal Act “refers to ‘a

person who . . . has three previous

convictions’ for—not a person who has

committed—three previous violent felonies or

drug offenses.” 495 U.S. at 600. This

emphasis on convictions indicates that

“Congress intended the sentencing court to

DIMAYA V. LYNCH 37

look only to the fact that the defendant had

been convicted of crimes falling within

certain categories, and not to the facts

underlying the prior convictions.” Ibid.

Taylor also pointed out the utter

impracticability of requiring a sentencing

court to reconstruct, long after the original

conviction, the conduct underlying that

conviction.

Id. at 2562.

Finally, the opinion’s penultimate paragraph reads:

We hold that imposing an increased sentence

under the residual clause of the Armed Career

Criminal Act violates the Constitution’s

guarantee of due process. Our contrary

holdings in James and Sykes are overruled.

Today’s decision does not call into question

application of the Act to the four enumerated

offenses, or the remainder of the Act’s

definition of a violent felony.

Id. at 2563.

B.

I read Johnson as setting forth a two-part test: whether the

statute in issue (1) “leaves grave uncertainty about how to

estimate the risk posed by the crime”; and (2) “leaves

uncertainty about how much risk it takes for a crime to

qualify as a violent felony.” Id. at 2557–58. Applying this

test, the Court faulted the residual clause for requiring

38 DIMAYA V. LYNCH

potential risk to be determined in light of “four enumerated

crimes—burglary, arson, extortion, and crimes involving the

use of explosives . . . [which] are far from clear in respect to

the degree of risk each poses.” Id. at 2558 (internal citation

omitted). The Court’s concern was clarified by its reference

to a prior dissent by Justice Scalia: “The phrase ‘shades of

red,’ standing alone does not generate confusion or

unpredictability; but the phrase ‘fire-engine red, light pink,

maroon, navy blue or colors that otherwise involve shades of

red’ assuredly does so.” Id. at 2561.

The Court also faulted the residual clause for tying “the

judicial assessment of risk to a judicially imagined ‘ordinary

case’ of a crime, not to real-world facts or statutory

elements.” Id. at 2557. However, the Court specifically

stated that it was not abandoning the categorical approach,

which, as noted, looks to the “ordinary case.” See Descamps,

133 S. Ct. at 2285 (holding the categorical approach’s central

feature is “a focus on the elements, rather than the facts, of a

crime”). It is true that Descamps, like § 16(a), looks to the

elements of a crime, not to the potential risk from the crime.

Nonetheless, in declining the dissent’s suggestion that it

“jettison for the residual clause . . . the categorical approach,”

the Court recognized that there were “good reasons to adopt

the categorical approach,” one of which is “the utter

impracticability of requiring a sentencing court to reconstruct,

long after the original conviction, the conduct underlying that

conviction.” Johnson, 135 S. Ct. at 2562. Thus, Johnson

does not prohibit all use of the “ordinary case.” It only

prohibits uses that leave uncertain both how to estimate the

risk and amount of risk necessary to qualify as a violent

crime.

DIMAYA V. LYNCH 39

Indeed, such an interpretation seems compelled in light of

the fact that Johnson did not even mention Leocal v. Ashcroft,

543 U.S. 1. In Leocal, the Supreme Court recognized the

breadth of § 16(b) and noted that it “simply covers offenses

that naturally involve a person acting in disregard of the risk

that physical force might be used against another in

committing the offense.” Id. at 10.

Finally, I note that perhaps in an attempt to foreclose

approaches such as that offered by today’s majority in this

appeal, the Supreme Court concluded by stating that its

decision “does not call into question application of the Act to

the four enumerated offenses [which include burglary] or the

remainder of the Act’s definition of a violent felony.”

Johnson, 135 S. Ct. at 2563.

III.

After such an esoteric discussion, it would be easy to lose

sight of what is at issue in this case. Dimaya, a native and

citizen of the Philippines, was twice convicted of first-degree

residential burglary under California Penal Code § 459 and

sentenced each time to two years in prison. The Department

of Homeland Security charged Dimaya with being removable

because he had been convicted of an aggravated felony under

8 U.S.C. § 1101(a)(43)(F), which is a “crime of violence . . .

for which the term of imprisonment [was] at least one year.”

That statute in turn defines “crime of violence” by reference

to 18 U.S.C. § 16. Thus, we are asked whether the statutory

scheme is somehow so vague or ambiguous as to preclude the

BIA from concluding that Dimaya’s two first-degree

burglaries under California law are “crimes of violence”

under § 16(b). Supreme Court precedent and our case law

answer the question in the negative.

40 DIMAYA V. LYNCH

There is no uncertainty as to how to estimate the risk

posed by Dimaya’s burglary crimes. The Supreme Court held

in Leocal that § 16(b) “covers offenses that naturally involve

a person acting in disregard of the risk that physical force

might be used against another in committing an offense.”

543 U.S. at 10. The court emphasized that burglary as “the

classic example” of a crime covered by 16(b) because

“burglary, by its nature involves a substantial risk that the

burglar will use force against a victim in completing the

crime.”10 Id. See also Taylor, 495 U.S. at 599 (a person has

been convicted of a crime for sentencing enhancement “if he

is convicted of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or unprivileged

entry into, or remaining in, a building or structure, with intent

to commit a crime”).

We have consistently followed this line of reasoning. See

United States v. Becker, 919 F.2d 568, 571 (9th Cir. 1990)

(“Any time a burglar enters a dwelling with felonious or

larcenous intent there is a risk that in the course of

committing the crime he will encounter one of its lawful

occupants, and use physical force against that occupant either

to accomplish his illegal purpose or to escape

apprehension.”); Lopez-Cardina v. Holder, 662 F.3d 1110,

1113 (9th Cir. 2011) (noting that “Becker itself recognized

that the California crime of burglary might not be a ‘crime of

violence’ under a federal statute defining the term by

10

This statement from Leocal forecloses, for purposes of § 16(b),

attempts to distinguish burglary convictions based on statutes that cover

structures other than dwellings or do not require unlawful entry. Neither

of these distinctions change the “nature” of the offense nor ameliorates the

“substantial risk that the burglar will use force against a victim in

completing the crime.”

DIMAYA V. LYNCH 41

reference to the generic crime, even though it is a ‘crime of

violence’ under the risk-focused text of § 16(b)”); Chuen Piu

Kwong, 671 F.3d at 877 (reaffirming that “first-degree

burglary under [Cal. Penal Code] § 459 is a crime of violence

because it involves a substantial risk that physical force may

be used in the course of committing the offense.”).

Nor is there any uncertainty as to “how much risk it takes

for a crime to qualify as a violent felony,” Johnson, 135 S. Ct.

at 2558, when burglary is at issue. Section 16(b) itself

requires a “substantial risk” of the use of physical force. As

noted, neither the Supreme Court nor the Ninth Circuit has

had any trouble in applying this standard. See Leocal,

543 U.S. at 10; Chuen Piu Kwong, 671 F.3d at 877; Becker,

919 F.2d at 571. Any person intent on committing a burglary

inherently contemplates the risk of using force should his

nefarious scheme be detected. Is this not what the Supreme

Court was referring to when it noted “we do not doubt the

constitutionality of laws that call for the application of a

qualitative standard such as ‘substantial risk’ to real-world

conduct”? Johnson 135 S. Ct. at 2561.11

11

I am not alone in questioning the application of Johnson beyond the

ACCA’s residual clause. Although the opinion has only been on the

books for a little over three months, the Eighth Circuit in Ortiz v. Lynch,

796 F.3d 932, 935 n.2 (8th Cir. 2015), noted that Johnson “does not

implicate the analysis in this case where the analogous language comes

not from the residual clause, but the first definition of ‘violent felony’ in

ACCA.” Similarly, in In re Gieswein, ___ F.3d ___, No. 15-6138, 2015

WL 5534388 (10th Cir. Sept. 21, 2015), the Tenth Circuit noted that the

holding in Johnson applies only to the residual-clause definition of violent

felony. Although it did not reach the merits of the issue, the court noted

that the “surviving definition of ‘violent felony’ under the ACCA includes

a felony conviction for ‘burglary.’” Id. at n.2.

42 DIMAYA V. LYNCH

IV.

In Johnson, after nine years of trying to derive meaning

from the residual clause, the Supreme Court held that it was

unconstitutionally vague. Section 16(b) is not the ACCA’s

residual clause; nor has its standard proven to be unworkably

vague. Over a decade ago, the Supreme Court in Leocal held

that § 16(b) “covers offenses that naturally involve a person

acting in disregard of the risk that physical force might be

used against another in committing an offense.” 543 U.S. at

10. Moreover, as the Supreme Court recognized, the statute

sets forth the test of a “substantial risk that physical force

against the person or property of any may be used in the

course of committing the offense.” 18 U.S.C. § 16(b).

Certainly, there is no unconstitutional vagueness in this case,

which involves the hallmark “crime of violence,” burglary.

See Leocal, 543 U.S. at 10. The Supreme Court will be

surprised to learn that its opinion in Johnson rendered § 16(b)

unconstitutionally vague, particularly as its opinion did not

even mention Leocal and specifically concluded with the

statement limiting its potential scope.12 I fear that we have

again ventured where no court has gone before and that the

Supreme Court will have to intervene to return us to our

proper orbit. Accordingly, I dissent.

12

There can be no doubt as to the majority’s intent. Footnote 14 of the

majority opinion asserts that “all of our prior cases relating to which

offenses fall within the scope of [§ 16(b)] are to that extent of no further

force or effect.”