Lopez-Cardona v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID ERNESTO LOPEZ-CARDONA, 

Petitioner, No. 09-71661

v.

 Agency No.

A077-274-059

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 9, 2010

Submission Deferred August 9, 2010

Resubmitted November 10, 2011*

San Francisco, California

Filed November 18, 2011

Before: Susan P. Graber, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

*This case is resubmitted as of November 10, 2011.

20247

LOPEZ-CARDONA v. HOLDER 20249

COUNSEL

Evangeline G. Abriel, Director, Legal Analysis, Research, and

Writing, Martin Guerbadot, Student Counsel, Santa Clara

University School of Law, Santa Clara, California, for the

petitioner.

Tony West, Assistant Attorney General, Linda S. Wernery,

Assistant Director, Kerry A. Monaco, Trial Attorney, Office

of Immigration Litigation, U.S. Department of Justice, Civil

Division, Washington, D.C., for the respondent.

OPINION

BEA, Circuit Judge:

David Lopez-Cardona,** a native and citizen of El Salva-

dor, petitions for review of a decision by the Board of Immi-

gration Appeals (“BIA”) affirming a decision of the

**The Clerk shall amend the docket to reflect that Petitioner’s last name

is spelled Lopez-Cardona, not Lopez Cordona.

20250 LOPEZ-CARDONA v. HOLDER

Immigration Judge (“IJ”) to deny Lopez’s applications for

withholding of removal under 8 U.S.C. § 1231(b)(3) (the

Immigration and Nationality Act, the “INA”), and withhold-

ing and deferral of removal under the Convention Against

Torture (“CAT”) under 8 C.F.R. §§ 1208.16-1208.18. We

deny the petition.

Where, as here, the BIA adopts the IJ’s decision while

adding some of its own reasoning, we review both decisions.

Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004). We review

constitutional claims and questions of law de novo and review

factual findings under the deferential substantial evidence

standard, treating them as “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992).

Lopez concedes that he is removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having been convicted of an aggra-

vated felony because he was convicted in March 2007 of three

counts of first-degree residential burglary, in violation of Cal-

ifornia Penal Code § 459.1 He was sentenced to three terms of

four years in prison, to be served concurrently.

Second, Lopez also concedes that he is removable under 8

U.S.C. § 1227(a)(2)(B)(i) for having been convicted of an

offense involving a controlled substance because he was con-

victed two separate times in February 2006 of the use of a

controlled substance—methamphetamine—in violation of

California Health and Safety Code § 11550(a), and sentenced

to ninety days in jail for each conviction.

Although conviction for an “aggravated felony” makes an

1

California Penal Code § 459 provides: “Every person who enters any

house, room, apartment, tenement, shop, warehouse, store, mill, barn, sta-

ble, outhouse or other building . . . with intent to commit grand or petit

larceny or any felony is guilty of burglary.”

LOPEZ-CARDONA v. HOLDER 20251

alien removable and statutorily ineligible for asylum under 8

U.S.C. § 1158(b)(2)(A)(ii), it is not automatically a bar to

relief in the form of withholding of removal. The aggravated

felony conviction prevents an alien from being eligible for

withholding only if the crime constitutes a “particularly seri-

ous crime.” 8 C.F.R. § 1208.16(d)(2). The IJ denied Lopez’s

applications for withholding of removal, holding that a con-

viction under California Penal Code § 459 for residential bur-

glary constitutes a particularly serious crime because it is a

crime of violence as defined in 18 U.S.C. § 16(b). The BIA

dismissed Lopez’s appeal.

[1] We hold that a conviction for residential burglary under

California Penal Code § 459 constitutes a crime of violence

because it is a felony “that, by its nature, involves a substan-

tial 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). Thus, a conviction under California Penal

Code § 459 is a “particularly serious crime.” 8 U.S.C.

§ 1231(b)(3)(B); 8 C.F.R. § 1208.16(d)(2); Leocal v. Ashcroft,

543 U.S. 1, 10 (2004) (“The reckless disregard in [18 U.S.C.]

§ 16 relates not to the general conduct or to the possibility that

harm will result from a person’s conduct, but to the risk that

the use of physical force against another might be required in

committing a crime. The classic example is burglary. A bur-

glary 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.”) (footnote omitted).

Leocal addressed a generic burglary, but in United States v.

Becker, 919 F.2d 568 (9th Cir. 1990), we held that California

first-degree burglary under California Penal Code § 459 is

categorically a “crime of violence” under 18 U.S.C. § 16(b)

because the crime inherently involves a substantial risk of

physical force:

Any time a burglar enters a dwelling with felonious

or larcenous intent there is a risk that in the course

20252 LOPEZ-CARDONA v. HOLDER

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.

Id. at 571. Although Becker involved a sentencing enhance-

ment under the Guidelines, at the time the relevant Guidelines

section defined “crime of violence” by reference to 18 U.S.C.

§ 16. Becker, 919 F.2d at 569; see also James v. United

States, 550 U.S. 192, 208 (2007) (holding that the proper

inquiry for the categorical approach is whether the conduct

covered by the crime presents the requisite risk of injury “in

the ordinary case”); United States v. Park, 649 F.3d 1175,

1178 (9th Cir. 2011) (holding that California residential bur-

glary is categorically a “crime of violence” under the residual

clause of U.S.S.G. § 4B1.2(a)(2), which requires the criminal

conduct to present “a serious potential risk of physical injury

to another”); United States v. M.C.E., 232 F.3d 1252, 1255

(9th Cir. 2000) (explaining that “[c]ourts . . . have come to the

conclusion (unanimous, so far as we can tell) that residential

burglary is indeed a crime of violence”). Under Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), there-

fore, we must follow Becker unless an intervening Supreme

Court or en banc decision is “clearly irreconcilable” with it.

We must decide today whether our recent en banc decision

in Aguila-Montes de Oca changes this result. We hold that it

does not. In United States v. Aguila-Montes de Oca, No. 05-

50170, 2011 WL 3506442, at *2 (9th Cir. Aug. 11, 2011) (en

banc) (per curiam), Aguila was convicted of first-degree resi-

dential burglary under California Penal Code § 459. Later, he

was convicted of illegal reentry after deportation, in violation

of 8 U.S.C. § 1326. The district court enhanced his sentence

under U.S.S.G. § 2L1.2(b)(1)(A), holding that his prior bur-

glary conviction qualified as “burglary of a dwelling” and

therefore a “crime of violence” under the Guidelines.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In so holding, the district

court did not rely on the definition of crime of violence we

LOPEZ-CARDONA v. HOLDER 20253

must use here, which looks to whether the crime is a felony

“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.” Rather, the district

court held that a conviction under California Penal Code

§ 459 was a crime of violence because it constituted a “ge-

neric burglary.” Our en banc court reversed that decision,

holding:

[B]urglary under California Penal Code § 459 is cat-

egorically broader than generic burglary because

California’s definition of “unlawful or unprivileged

entry,” unlike the generic definition, permits a con-

viction for burglary of a structure open to the public

and of a structure that the defendant is licensed or

privileged to enter if the defendant enters the struc-

ture with the intent to commit a felony.

Id. at *25.

Under our case law, certain crimes can be categorically

crimes of violence under one of the relevant sections but not

the other because the term “crime of violence” is defined dif-

ferently in different statutes. See United States v. Gomez-

Leon, 545 F.3d 777, 786 (9th Cir. 2008) (“Confusingly, the

phrase ‘crime of violence’ is used to identify predicate

offenses in a wide variety of contexts, but there are at least

four different ways to determine whether an offense consti-

tutes a ‘crime of violence.’ See 18 U.S.C. § 16; U.S.S.G.

§ 2L1.2 cmt. 1(B)(iii); U.S.S.G. § 4B1.2. What may be a

predicate offense under one approach is not necessarily a

predicate offense under another approach.” (footnotes omit-

ted)). For example, Becker itself recognized that the Califor-

nia crime of burglary might not be a “crime of violence”

under a federal statute defining the term by reference to the

20254 LOPEZ-CARDONA v. HOLDER

generic crime, even though it is a “crime of violence” under

the risk-focused text of § 16(b).2 Becker, 919 F.2d at 572 n.7.

[2] Aguila-Montes holds only that a conviction under Cali-

fornia Penal Code § 459 does not categorically constitute a

conviction for generic burglary. It does not address the previ-

ously decided question of whether a conviction under Califor-

nia Penal Code § 459 for residential burglary is an offense

“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).

That being so, Aguila-Montes is not clearly irreconcilable

with Becker. Accordingly, Lopez is ineligible for withholding

of removal under either the INA, 8 U.S.C. § 1231(b)(3)(B), or

CAT, 8 C.F.R. § 1208.16(d)(2).

Unlike asylum and withholding, there are no mandatory

bars to an applicant seeking deferral of removal under CAT.

See 8 C.F.R. § 1208.16(c)(4) (stating that deferral of removal

under 8 C.F.R. § 1208.17(a) is available for applicants who

would otherwise be barred from withholding of removal). To

be eligible for deferral of removal under CAT, the alien has

the burden of proof “to establish that it is more likely than not

that he or she would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 1208.16(c)(2).

[3] Thus, unlike Lopez’s withholding of removal claims,

the IJ did not deny Lopez’s CAT deferral of removal claim

because of his criminal convictions. Rather, the IJ correctly

determined that Lopez failed to meet his burden of proof.

2

Becker discussed the possibility that California residential burglary

might not be a “violent felony” under the definition provided at 18 U.S.C.

§ 924(e)(2)(B)(ii), but we have held that the interpretation of “violent felo-

ny” under § 924 is essentially the same as “crime of violence” under

U.S.S.G. § 4B1.2. United States v. Crews, 621 F.3d 849, 856 (9th Cir.

2010).

LOPEZ-CARDONA v. HOLDER 20255

Lopez claims CAT relief based on one incident in 2005 in

which a group of gang members beat Lopez and his cousin as

they were exiting a store. Lopez himself testified that these

gang members stopped the beating after they saw police in the

area. That the police were willing and able to protect people

from this gang is evidence Lopez would not be tortured upon

his return. Although gang members beat up Lopez and his

cousin in 2005, there is no evidence those gang members

knew Lopez or his cousin, nor that the gang members had any

reason to hurt them. It could be that Lopez and his cousin

were just unfortunate bystanders who were in the wrong place

at the wrong time. Further, there is no evidence the gang

members are looking for Lopez today. Therefore, Lopez has

failed to prove it is more likely than not he will be tortured

upon his return. 8 C.F.R. § 1208.16(c)(2).

PETITION DENIED.