Juan Melgoza Guerrero v. Matthew Whitaker, Acting Attorney General

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MELGOZA GUERRERO, aka No. 15-72080

Juan Francisco Mendoza Guerro,

Petitioner, Agency No.

A087-677-945

v.

MATTHEW WHITAKER, Acting OPINION

Attorney General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 16, 2018

San Francisco, California

Filed November 9, 2018

Before: Sidney R. Thomas, Chief Judge, Susan P. Graber,

Circuit Judge, and Robert S. Lasnik,* District Judge.

Opinion by Judge Graber

*

The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

2 MELGOZA GUERRERO V. WHITAKER

SUMMARY**

Immigration

The panel denied in part and granted in part a petition for

review of the Board of Immigration Appeals’ final order of

removal, holding that the statutory phrase “particularly

serious crime,” as set forth in 8 U.S.C. § 1231(b)(3)(B), is

not unconstitutionally vague on its face.

In considering whether the particularly serious crime

provision is unconstitutionally vague, the panel addressed this

court’s prior opinion in Alphonsus v. Holder, 705 F.3d 1031

(9th Cir. 2013) (holding that the particularly serious crime

statute is not unconstitutionally vague). Applying the

teachings of Johnson v. United States, 135 S. Ct. 2551

(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),

which held, respectively, that the residual clauses of the

Armed Career Criminal Act and 18 U.S.C. § 16(b) were

unconstitutionally vague, the panel concluded that the court

applied the wrong legal standard in Alphonsus, by requiring

that a petitioner “must establish that no set of circumstances

exists under which the statute would be valid.” The panel

explained that Johnson and Dimaya expressly rejected the

notion that a statutory provision survives a facial vagueness

challenge merely because some conduct clearly falls within

the statute’s scope.

Considering the issue anew, the panel again held that the

particularly serious crime statute is not unconstitutionally

**

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

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

MELGOZA GUERRERO V. WHITAKER 3

vague, because although the statute to some extent provides

an uncertain standard to be applied to a wide range of fact-

specific scenarios, the inquiry applies only to real world facts,

unlike Johnson and Dimaya, which each applied an uncertain

standard to an idealized crime in the context of the

categorical approach. The panel explained that the

particularly serious crime inquiry requires consideration of

what a petitioner actually did, and therefore does not suffer

from the fatal combination of an imprecise standard on top of

an “ordinary case” inquiry at issue in Johnson and Dimaya.

In a concurrently filed unpublished memorandum

disposition, the panel addressed Guerrero’s remaining

arguments, concluding that the Board did not abuse its

discretion in determining that Guerrero committed a

particularly serious crime that made him ineligible for

statutory withholding of removal and withholding of removal

under the Convention Against Torture, but granting the

petition with respect to the Board’s denial of deferral of

removal under the Convention Against Torture.

COUNSEL

Ann F. Barhoum (argued), Olmos & Barhoum LLP, San Jose,

California; Monica Ganjoo, Ganjoo Law Office, San

Francisco, California; for Petitioner.

Andrew N. O’Malley (argued) and Anh-Thu P. Mai-Windle,

Senior Litigation Counsel; Stephen J. Flynn, Assistant

Director; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

4 MELGOZA GUERRERO V. WHITAKER

OPINION

GRABER, Circuit Judge:

Petitioner Juan Melgoza Guerrero, a native and citizen of

Mexico, timely seeks review of a final order of removal. In

particular, he challenges the Board of Immigration Appeals’

(“BIA”) determination that he has been convicted of a

“particularly serious crime” within the meaning of 8 U.S.C.

§ 1231(b)(3)(B)(ii), which rendered him ineligible for

statutory withholding of removal and withholding of removal

under the Convention Against Torture (“CAT”). He also

challenges the BIA’s denial of deferral of removal under

CAT.

In this opinion, we address only the legal argument that

the statutory phrase “particularly serious crime” is

unconstitutionally vague on its face following the Supreme

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

(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

Reviewing de novo, Guo v. Sessions, 897 F.3d 1208, 1212

(9th Cir. 2018), we hold that the statutory provision survives

facial scrutiny.1

An alien is entitled to withholding of removal if “the

alien’s life or freedom would be threatened in that country

1

In an unpublished disposition filed this date, we address Petitioner’s

remaining arguments, which turn on the factual specifics of his case. We

conclude that the BIA did not abuse its discretion in determining that

Petitioner committed a particularly serious crime. Accordingly, we deny

the petition with respect to both forms of withholding of removal. But we

hold that substantial evidence does not support the BIA’s determination

concerning deferral of removal under CAT. We therefore grant the

petition in that respect.

MELGOZA GUERRERO V. WHITAKER 5

because of the alien’s race, religion, nationality, membership

in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A). An exception exists if the alien, “having

been convicted by a final judgment of a particularly serious

crime[,] is a danger to the community of the United States.”

Id. § 1231(b)(3)(B)(ii). The statute further provides:

For purposes of clause (ii) [the “particularly

serious crime” provision], an alien who has

been convicted of an aggravated felony (or

felonies) for which the alien has been

sentenced to an aggregate term of

imprisonment of at least 5 years shall be

considered to have committed a particularly

serious crime. The previous sentence shall

not preclude the Attorney General from

determining that, notwithstanding the length

of sentence imposed, an alien has been

convicted of a particularly serious crime.

Id. § 1231(b)(3)(B).

We previously have detailed the extensive history of the

“particularly serious crime” provision and its present

operation. Alphonsus v. Holder, 705 F.3d 1031, 1037–41 (9th

Cir. 2013). Three categories of crimes may be determined to

be particularly serious. First, by statute, any aggravated

felony that carried an aggregate term of at least five

years’ imprisonment is particularly serious. 8 U.S.C.

§ 1231(b)(3)(B). Second, in general, all other crimes may, on

a case-by-case basis, be determined to be particularly serious

by considering the factors described in In re Frentescu, 18

I. & N. Dec. 244 (B.I.A. 1982), as applied to the facts of the

alien’s conviction. Third, the Attorney General has specified,

6 MELGOZA GUERRERO V. WHITAKER

in a published opinion, that all drug-trafficking offenses are

particularly serious except in “very rare” instances. In re Y-

L-, 23 I. & N. Dec. 270, 276 (A.G. 2002).

In Alphonsus, 705 F.3d at 1041–43, we held that the

“particularly serious crime” provision is not

unconstitutionally vague on its face. “First, and most

importantly, the statutory text indicates that the key to

determining whether a crime is particularly serious is whether

the nature of the crime shows that the alien poses a danger to

the community of the United States.” Id. at 1042–43.

Second, the statute itself describes a large category of

crimes—aggravated felonies with sentences of at least five

years’ imprisonment. Id. at 1043. “The aggravated felony

definitions serve both to delineate the group of per se

particularly serious crimes and to suggest the types of crimes

most likely to be covered by the statute even when the

aggregate sentence is less than five years.” Id. Finally, “the

BIA has specified at least one category of offenses—drug

trafficking crimes—which will almost always be particularly

serious crimes for withholding purposes.” Id. (citing In re Y-

L-, 23 I. & N. Dec. at 276). “In sum, § 1231(b)(3)(B) does

cover an ascertainable core set of convictions, and the BIA’s

interpretive glosses have added some specificity as well.” Id.

As a three-judge panel, we are bound by Alphonsus unless

it is “clearly irreconcilable” with the reasoning or theory of

an intervening Supreme Court decision or other higher

authority. Miller v. Gammie, 335 F.3d 889, 893, 899–900

(9th Cir. 2003) (en banc). We therefore examine the Supreme

Court’s recent cases applying the vagueness doctrine.

In Johnson, 135 S. Ct. at 2557, the Court held that the

residual clause of the Armed Career Criminal Act (“ACCA”)

MELGOZA GUERRERO V. WHITAKER 7

was unconstitutionally vague. That clause was the portion of

18 U.S.C. § 924(e)(2)(B)(ii), emphasized below, that defined

a “violent felony” as a crime 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.” The Court held that a criminal law

violates the Due Process Clause if it is “so vague that it fails

to give ordinary people fair notice of the conduct it punishes,

or so standardless that it invites arbitrary enforcement.”

Johnson, 135 S. Ct. at 2556.

“Two features of the residual clause conspire to make it

unconstitutionally vague.” Id. at 2557. The first feature

concerned the categorical approach, which requires the court

to ask about the risk of physical injury caused not by the

defendant’s particular crime, but by an “idealized ordinary

case” of the crime. Id. at 2557–58. The Court asked: “How

does one go about deciding what kind of conduct the

‘ordinary case’ of a crime involves? A statistical analysis of

the state reporter? A survey? Expert evidence? Google?

Gut instinct?” Id. at 2557 (internal quotation marks omitted).

Moreover, “picturing the criminal’s behavior is not enough;

. . . assessing ‘potential risk’ seemingly requires the judge to

imagine how the idealized ordinary case of the crime

subsequently plays out.” Id. at 2557–58. The second feature

concerned the “uncertainty about how much risk it takes for

a crime to qualify as a violent felony.” Id. at 2558. “It is one

thing to apply an imprecise ‘serious potential risk’ standard

to real-world facts; it is quite another to apply it to a judge-

imagined abstraction.” Id. “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

8 MELGOZA GUERRERO V. WHITAKER

unpredictability and arbitrariness than the Due Process Clause

tolerates.” Id.

In a separate section of the opinion, the Court addressed

the applicable legal standard. The Court 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. Specifically, the Court

rejected the legal standard “that ‘a statute is void for

vagueness only if it is vague in all its applications.’” Id.

(quoting id. at 2574 (Alito, J., dissenting)).

In Dimaya, the Court held that a similarly worded residual

clause, this time found in 18 U.S.C. § 16(b), also was

unconstitutionally vague. 138 S. Ct. at 1213. Johnson

“effectively resolved the case,” because § 16(b)’s residual

clause “has the same two features as ACCA’s, combined in

the same constitutionally problematic way.” Id.; see id. at

1213–16 (detailed analysis, tracking Johnson). In a footnote,

the Court reiterated the point that a vague provision is not

saved by the fact that the provision clearly captures some

conduct. Id. at 1214 n.3.

Applying the teachings of Johnson and Dimaya here, we

conclude that we applied the wrong legal standard in

Alphonsus. There, we held that the petitioner “must establish

that no set of circumstances exists under which the statute

would be valid.” Alphonsus, 705 F.3d at 1042 (brackets

omitted) (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)). In a footnote, we observed that the “no set of

circumstances” standard was subject to some doubt but that

we would continue to apply that standard “until a majority of

the Supreme Court directs otherwise.” Id. at 1042 n.11

(internal quotation marks and brackets omitted). That day has

MELGOZA GUERRERO V. WHITAKER 9

come. Johnson and Dimaya expressly rejected the notion that

a statutory provision survives a facial vagueness challenge

merely because some conduct clearly falls within the statute’s

scope. Johnson, 135 S. Ct. at 2561; Dimaya, 138 S. Ct. at

1214 n.3. Accordingly, Alphonsus’ reasoning is, in part,

clearly irreconcilable with Johnson and Dimaya. We

therefore address with fresh eyes whether the “particularly

serious crime” provision is unconstitutionally vague.

As noted above, the statutory provision denies some

forms of relief if the “alien, having been convicted by a final

judgment of a particularly serious crime[,] is a danger to

the community of the United States.” 8 U.S.C.

§ 1231(b)(3)(B)(ii). The term “particularly serious crime”

requires the agency to place the alien’s conviction along a

spectrum of seriousness. The surrounding text provides two

clues as to whether a crime is “particularly serious”: the

crime must allow an inference that the person is a “danger to

the community of the United States”; and aggravated felonies

with resulting sentences of at least five years are per se

particularly serious, though the statutory text makes clear that

other crimes, too, may be particularly serious. As we noted

in Alphonsus, the per se category “suggest[s] the types of

crimes most likely to be covered by the statute even when the

aggregate sentence is less than five years.” 705 F.3d at 1043.

We know with certainty that a minor traffic infraction is

not “particularly serious” and that a heinous, violent crime is

“particularly serious.” But for the crimes in between, the

statute provides little guidance. Instead, the statute provides

an uncertain standard to be applied to a wide range of fact-

specific scenarios. In that sense, the standard is uncertain.

But that kind of uncertainty does not mean that a statute is

unconstitutionally vague. Many statutes provide uncertain

10 MELGOZA GUERRERO V. WHITAKER

standards and, so long as those standards are applied to real-

world facts, the statutes are almost certainly constitutional.

The problem in Johnson and Dimaya was not that the terms

were uncertain in isolation; the problem was that the

uncertainty had to be applied to an idealized crime:

[Many 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. The residual clause, however,

requires application of the “serious potential

risk” standard to an idealized ordinary case of

the crime.

Johnson, 135 S. Ct. at 2561 (citation, ellipsis, and some

internal quotation marks omitted).

Many perfectly constitutional statutes use

imprecise terms like “serious potential risk”

(as in ACCA’s residual clause) or “substantial

risk” (as in § 16’s). The problem came from

layering such a standard on top of the

requisite “ordinary case” inquiry.

Dimaya, 138 S. Ct. at 1214.

Critically, the “particularly serious crime” inquiry in

8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts.

MELGOZA GUERRERO V. WHITAKER 11

Unlike many standards in the immigration context, the

“particularly serious crime” inquiry requires the BIA to

assess what the alien actually did; “the categorical and

modified categorical approaches . . . are not applicable to

evaluating whether a crime is ‘particularly serious,’” Anaya-

Ortiz v. Holder, 594 F.3d 673, 680 (9th Cir. 2010) (citation

omitted). Accordingly, the fatal combination at issue in

Johnson and Dimaya is absent here. The “particularly serious

crime” inquiry requires an imprecise line-drawing exercise,

but it is no less certain than the “perfectly constitutional

statutes” that the Supreme Court discussed. Dimaya, 138

S. Ct. at 1214. We hold that the “particularly serious crime”

provision is not unconstitutionally vague on its face.

Petition DENIED in part and GRANTED in part. The

parties shall bear their own costs on appeal.