Carlos Flores-Lopez v. Eric H. Holder Jr.

Filing

FILED OPINION (KIM MCLANE WARDLAW, CONSUELO M. CALLAHAN and RICARDO S. MARTINEZ) GRANTED; REMANDED. Judge: RSM Authoring. FILED AND ENTERED JUDGMENT. [8240873]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALBERTO FLORES-LOPEZ,
AKA Carlos Alberto Flores, AKA
Carlos Flores-Lopez,
Petitioner,
v.
ERIC H. HOLDER Jr., United States
Attorney General,
Respondent.




No. 08-75140
Agency No.
A43-738-693
OPINION


On Petition for Review of a Decision of the
Board of Immigration Appeals
Argued and Submitted
February 10, 2012—Pasadena, California
Filed July 9, 2012
Before: Kim McLane Wardlaw and Consuelo M. Callahan,
Circuit Judges, and Ricardo S. Martinez, District Judge.*
Opinion by Judge Martinez

*The Honorable Ricardo S. Martinez, U.S. District Judge for the Western District of Washington, sitting by designation.

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COUNSEL
Holly S. Cooper (argued), The Law Offices of Holly S. Cooper, Davis, California, for the petitioner.
Jane T. Schaffner (argued), Office of Immigration Litigation,
Civil Division; Leslie McKay, Office of Immigration Litigation; Tony West, Assistant Attorney General, U.S. Department of Justice, Washington, D.C., for the respondent.

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OPINION
MARTINEZ, Districe Judge:
Carlos Alberto Flores-Lopez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing
his appeal from an immigration judge’s decision finding that
his conviction for resisting an executive officer in violation of
section 69 of the California Penal Code (“CPC”) is a categorical crime of violence, rendering him removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted
of an aggravated felony. We have jurisdiction under 8 U.S.C.
1252(a)(2)(D), we grant the petition for review, and we
remand to the BIA for proceedings consistent with this opinion.
I
Flores-Lopez was born in El Salvador and was admitted to
the United States as a legal permanent resident in 1992 on or
around his eleventh birthday. In 2006, he pled guilty to resisting an executive officer in violation of CPC § 69 and was sentenced to one year and four months of imprisonment.
The procedural history of Flores-Lopez’s removal proceedings is somewhat convoluted. On February 6, 2007, the Immigration and Naturalization Service initiated removal
proceedings against Flores-Lopez by filing a Notice to
Appear. The Notice charged Flores-Lopez with removability
under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),
as an alien convicted of a crime of violence aggravated felony.
Flores-Lopez first appeared before the immigration judge
(“IJ”) on March 13, 2007. His case was repeatedly postponed
until October 4, 2007, when a hearing was scheduled on contested issues of removability and eligibility for cancellation of

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removal. Two days before the hearing, Flores-Lopez submitted a motion to terminate removal proceedings, arguing that
CPC § 69 was not a categorical crime of violence.
At the October 4, 2007 hearing, the Department of Homeland Security (“DHS”) offered an abstract of judgment, a
charging document (information), a motion for discovery, and
a pre-conviction probation report as evidence that FloresLopez had been convicted of violating CPC § 69. FloresLopez responded that DHS had failed to meet its burden of
proving that he was removable. Pursuant to his motion to terminate, Flores-Lopez argued that CPC § 69 was not a categorical crime of violence because the statute could be violated
through the use of de minimis force and the government had
failed to prove that Flores-Lopez had used more than de
minimis force in committing the offense.
DHS requested that the case be postponed so that it could
respond to Flores-Lopez’s motion in writing and so that it
could further prepare. The IJ denied the motion for a continuance and proceeded to consider removability. The IJ concluded that DHS had failed to sustain its burden of proving by
clear and convincing evidence that Flores-Lopez had been
convicted of a crime of violence and terminated the removal
proceedings.
DHS filed a timely appeal to the BIA, arguing both that
CPC § 69 was a crime of violence and that the IJ had erred
by refusing to grant DHS a continuance to file a written
response to petitioner’s motion to terminate. DHS also contended that Flores-Lopez was removable on two additional
grounds and requested that the BIA remand the matter to the
IJ so that DHS could lodge an additional charge against
Flores-Lopez.
The BIA remanded the proceedings to the IJ to allow DHS
to lodge the additional charge. However, on Flores-Lopez’s
motion for reconsideration of the remand order, the BIA

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vacated its decision. Instead, it sustained DHS’s appeal of the
IJ’s decision and held that a conviction under CPC § 69 qualifies categorically as a crime of violence. On that basis, the
BIA remanded the proceedings to the IJ to enter a new decision.
On September 11, 2008, on remand from the BIA, the IJ
entered an order of removal against Flores-Lopez. FloresLopez appealed, arguing again that CPC § 69 is not a categorical a crime of violence, and the BIA summarily dismissed the
appeal. This petition for review followed.
II
“Whether an offense is an aggravated felony under 8
U.S.C. § 1101(a) is a legal question reviewed de novo.”
Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 519 (9th Cir.
2007) (internal quotation omitted). We review only the BIA’s
decision, except to the extent that it expressly adopts the IJ’s
opinion. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.
1998). Where the BIA issues its own decision but relies in
part on the immigration judge’s reasoning, we review both
decisions. See Alaelua v. I.N.S., 45 F.3d 1379, 1382-83 (9th
Cir. 1995). Here, we review both the original BIA decision,
overturning the IJ’s cancellation of removal, and the second
BIA decision, dismissing Flores-Lopez’s appeal.
III
A
Flores-Lopez is removable if his California conviction for
resisting an executive officer is an aggravated felony, specifically a crime of violence for which the term of imprisonment
is at least one year. See 8 U.S.C. §§ 1227(a)(2)(A)(iii);
1101(a)(43)(F). To determine whether the California conviction is a “crime of violence,” we apply the categorical
approach set forth in Taylor v. United States, 495 U.S. 575

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(1990), looking “only to the fact of conviction and the statutory definition of the prior offense.”
[1] CPC § 69 provides:
Every person who attempts, by means of any threat
or violence, to deter or prevent an executive officer
from performing any duty imposed upon such officer
by law, or who knowingly resists, by the use of force
or violence, such officer, in the performance of his
duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the
state prison, or in a county jail not exceeding one
year, or by both such fine and imprisonment.
The statute may be violated in two ways: (1) by attempting
through threats or violence to deter or prevent an officer from
performing a duty imposed by law; or (2) by resisting by
force or violence an officer in the performance of his or her
duty. In re Manuel G., 941 P.2d 880, 885 (Cal. 1997). The
two ways of violating CPC § 69 have been called the “attempting to deter” prong and the “actually resisting an officer” prong. People v. Lopez, 29 Cal. Rptr. 3d 586 (Cal. Ct.
App. 2005). Because the proscribed conduct under CPC § 69
encompasses two categories of conduct, CPC § 69 is only a
categorical crime of violence if both categories constitute
crimes of violence.
B
[2] An offense is a “crime of violence” if it is:
(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

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against the person or property of another may be
used in the course of committing the offense.
8 U.S.C. § 16. The term crime of violence “suggests a category of violent, active crimes.” Leocal v. Ashcroft, 543 U.S.
1, 11 (2004). “We have squarely held that the force necessary
to constitute a crime of violence must actually be violent in
nature.” Singh v. Ashcroft, 386 F.3d 1228, 1233 (9th Cir.
2004) (citing United States v. Ceron-Sanchez, 222 F.3d 1169,
1172 (9th Cir. 2000)) (internal quotation omitted). Specifically, the “physical force” requirement of § 16 demands a
greater degree of force than the mere “offensive touching”
necessary to sustain a conviction of battery. See OrtegaMendez v. Gonzalez, 450 F.3d 1010, 1017 (9th Cir. 2006).
Petitioner argues that a conviction under CPC § 69 is not
a crime of violence because it requires only the use of de
minimis force, as opposed to the “physical force” necessary to
constitute a crime of violence. We agree. The language of
CPC § 69 provides that in order to convict a person under the
statute, the state must prove that the person used or threatened
to use “violence” (for a conviction under the “attempting to
deter” prong) or that he or she used “force or violence” (for
a conviction under the “actually resisting” prong). To determine whether the words “violence” and “force” constitute the
type of “physical force” necessary for an offense to be a crime
of violence, we consider not only the language of the statute
but also how that statute is defined in judicial opinions.
Ortega-Mendez, 450 F.3d at 1016 (citing United States v.
Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997)).
[3] Here, the use note to the CPC § 69 model jury instructions points to the definition of “force or violence” as used in
the law of battery.1 See CALJIC 7.50. The battery definition
provides that “ ‘force’ and ‘violence’ are synonymous and
1

The use note states: “ ‘Force or violence,’ as used in the law of battery,
is defined at CALJIC 16.141.” CALJIC 7.50.

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mean any [unlawful] application of physical force against the
person of another, even though it causes no pain or bodily
harm or leaves no mark and even though only the feelings of
such person are injured by the act.”2 CALJIC 16.141. This
definition is precisely the definition that we considered in
Ortega-Mendez. 450 F.3d at 1017 (analyzing whether an
offense under CPC § 242, California’s battery statute, was a
crime of violence). There, we held that the instruction comports with the case law for battery and that such conduct, “involving mere offensive touching[,] does not rise to the level
of a ‘crime of violence’ within the meaning of 8 U.S.C.
§ 16(a).” Id.
[4] Not only does the use note to the instruction for CPC
§ 69 refer to the battery definition of “force or violence,” but
under California law “when a word or phrase has been given
a particular scope or meaning in one part or portion of a law
it shall be given the same scope and meaning in other parts
or portions of the law.” People v. McKay, 27 Cal.4th 601,
621, 622 (2002). Without more, we must assume that the term
“force or violence” is given the same meaning in CPC § 69
as it is given in CPC § 242, California’s battery statute. Since
2

The full text reads:
As used in the foregoing instruction, the words “force” and
“violence” are synonymous and mean any [unlawful] application
of physical force against the person of another, even though it
causes no pain or bodily harm or leaves no mark and even though
only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry
manner, is sufficient.
It is not necessary that the touching be done in actual anger or
with actual malice; it is sufficient if it was unwarranted and
unjustifiable.
The touching essential to a battery may be a touching of the
person, of the person’s clothing, or of something attached to or
closely connected with the person.

CALJIC 16.141.

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California’s definition of “force or violence” as used in CPC
§ 69 is broader than the term “physical force” in 8 U.S.C.
§ 16, an offense under CPC § 69 is not a crime of violence
under 8 U.S.C. § 16(a).
C
[5] We now turn to whether an offense under CPC § 69
satisfies the requirements for a crime of violence under the
residual clause at 8 U.S.C. § 16(b). Even if a state offense
does not involve the use, attempted use, or threatened use of
“physical force,” the offense may still qualify as a crime of
violence if it “is a felony and . . . 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.” 8 U.S.C. § 16(b). Neither party disputes that § 69 is
a felony. Therefore, the dispositive issue is whether all of the
conduct proscribed by § 69 creates a substantial risk that
physical force against the person or property of another may
be used.
The Supreme Court has held that under both clauses of section 16, a crime of violence requires a “higher degree of intent
than negligent or merely accidental conduct” and only “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.” Leocal, 543 U.S. at 9. Therefore, “in
order to be a predicate offense under either § 16(a) or (b), the
underlying offense must require proof of an intentional use of
force or a substantial risk that force will be intentionally used
during its commission.” United States v. Gomez-Leon, 545
F.3d 777, 787 (9th Cir. 2008) (emphasis in original). Crimes
involving the reckless use of force do not qualify under 8
U.S.C. § 16 as crimes of violence. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006).
We addressed whether a general intent crime could constitute a “crime of violence” under 8 U.S.C. §16(b) in Covarru-

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bias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011). There,
we analyzed CPC § 246, which prohibits discharging a firearm into an inhabited building. Because CPC § 246 is a general intent crime, we held that it could not be a categorical
crime of violence under 8 U.S.C. § 16:
Given the elements of that statute set by California
judicial decisions, we can gather with certainty only
that Covarrubias intentionally discharged a gun with
reckless disregard as to whether the bullet would hit
an inhabited vehicle or dwelling. This creates a risk
of injury to other people and damage to property.
But it does not involve a substantial risk of using
force with intent against persons or property . . .
[T]his subjective awareness of possible injury is not
the same as the intentional use of physical force
against the person of another.
Id. at 1054.
While the California Supreme Court has yet to address
whether the “actually resisting an officer” prong of § 69 is a
general or specific intent crime, “no case has affirmatively
stated that the second clause of section 69 describes an
offense requiring specific intent.” People v. Rasmussen, 117
Cal. Rptr. 3d 588, 595 (Cal. Ct. App. 2010). The appellate
courts have uniformly held, “[t]he definition of the resistance
offense in section 69 describes only the act of resisting an
executive officer and does not require an intent to do a further
act or achieve a future consequence.” Id. at 594; see also People v. Roberts, 182 Cal. Rptr. 757, 761 (Cal. App. Dep’t.
Super. Ct. 1982) (“[T]he second portion of section 69 consists
of only the description of a particular act, without reference
to intent to do a further act or achieve a future consequence
and it is therefore a general intent crime”) (emphasis added)
(quotation marks and internal citations omitted).
[6] Since the “actually resisting” prong of CPC § 69 is a
general intent crime, we can be certain only that Flores-Lopez

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intentionally used at least de minimis force in resisting an officer with reckless disregard as to whether doing so would
result in the use of non-de minimis force against the person or
property of another. The idea that resisting an officer will
inevitably lead to the use of violent, physical force is “too
speculative to support a conclusion that CPC § [69] is categorically a crime of violence.” Covarrubias, 632 F.3d at
1055. Because a conviction under CPC § 69 does not require
proof of the requisite level of intent to constitute a crime of
violence under 8 U.S.C. § 16(b), an offense under section 69
is not a categorical crime of violence.
The BIA cites Estrada-Rodriguez v. Mukasey, 512 F.3d
517 (9th Cir. 2007), for the proposition that resisting a police
officer, by its nature, creates a substantial risk that physical
force will be used. Estrada-Rodriguez involved Arizona’s
resisting arrest statute, which prohibits resisting arrest by (1)
“[u]sing or threatening to use physical force against the peace
officer or another;” or (2) “[u]sing any other means creating
a substantial risk of causing physical injury to the peace officer or another.” Ariz. Rev. Stat. § 13-2508. There are two
important distinctions between CPC § 69 and the Arizona
resisting arrest statute that distinguish this case from EstradaRodriguez.
First, CPC § 69 does not contain the language of Ariz. Rev.
Stat. § 13-2508 prohibiting the use of “any other means creating a substantial risk of causing physical injury to the peace
officer or another.” By its plain language, this portion of the
Arizona statute tracks more closely the language of § 16(b)
(an offense “that, by its nature, involves a substantial risk that
physical force against the person or property of another may
be used”) than does the language of CPC § 69, which proscribes resistance through the use of force or violence.
Second, and most importantly, in Estrada, we relied heavily on an Arizona case, State v. Womack, 174 Ariz. 108, 847
P.2d 609, 613 (Ariz. Ct. App. 1992), in which “an Arizona

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appellate court decided that nonviolent flight from an
attempted arrest did not constitute resisting arrest under § 132508(A)(2).” Estrada-Rodriguez, 512 F.3d at 521. There, we
noted that “ ‘[n]either [nonviolent] nonsubmission nor flight
are covered’ by resisting arrest statutes” in Arizona. Id. (citing
Womack, 174 Ariz. at 612). Rather, “[t]here must be actual
opposition or resistance, making necessary, under the circumstances, the use of force.” Id. (citing Womack, 174 Ariz. at
613) (emphasis added). Thus, under the Arizona statute, all of
the potential de minimis uses of force directed against an officer in resisting arrest, discussed above, are interpreted as
exempt from the statute. Here, in contrast, there is no California case law that would support a similar interpretation of
CPC § 69.
[7] Since CPC § 69 proscribes the use of de minimis force,
and the “actually resisting prong” of CPC § 69 is a general
intent crime and does not by its nature create a substantial risk
that force will be used, the BIA erred in holding that an
offense under CPC § 69 is a categorical crime of violence.
IV
The only issue on appeal is whether CPC § 69 is a categorical crime of violence. We have held that it is not. This does
not mean, however, that Flores-Lopez did not commit a crime
of violence or that he is not removable. Under the modified
categorical approach, a court may review enumerated documents within the record to determine whether a petitioner’s
plea “ ‘necessarily’ rested on the fact identifying the [offense]
as generic.” Shepard v. United States, 544 U.S. 13, 21 (2005)
(quoting Taylor, 495 U.S. at 602). The government argues
that we should remand the case to the BIA to apply this second step of the analysis. We agree.
Generally, this Court does not remand a case to the BIA to
apply the modified categorical approach “where only legal
questions remain and these questions do not invoke the

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Board’s expertise; all relevant evidence regarding the conviction had been presented to the BIA in earlier proceedings; and
the BIA had already once determined that the offense fell
within the generic definition of the crime, even if only at the
categorical stage.” Fregozo v. Holder, 576 F.3d 1030, 1036
(9th Cir. 2009) (citing Latu v. Mukasey, 547 F.3d 1070, 1076
(9th Cir. 2008); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 107980 (9th Cir. 2007); Fernandez-Ruiz, 466 F.3d at 1133-35)).
Here, as in Fregozo, the BIA has already once determined that
the offense fell within the generic definition of the crime at
the categorical stage. However, in contrast to Fregozo, it is
unclear whether DHS had the opportunity to introduce all of
the relevant evidence regarding petitioner’s conviction in the
proceedings below.
When this case was first before the IJ, the so-called “missing element rule” was still in effect. See, e.g., Navarro-Lopez
v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007). Under this
rule, “[w]hen the crime of conviction is missing an element
of the generic crime altogether, we can never find that a jury
was actually required to find all the elements of the generic
crime.” Id. at 1073 (internal quotation omitted); see also Li v.
Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (providing
examples). Accordingly, a conviction under a state statute that
was missing an element of the generic crime could never
serve as a predicate offense for removal purposes. Id.
In United States v. Aguila-Montes de Oca, we overruled
Navarro-Lopez and all subsequent cases to the extent they
relied on the missing element rule. 655 F.3d 915 (9th Cir.
2011) (en banc). In its place, we directed courts to apply a
“revised modified categorical approach” in all instances in
which the offense of conviction is broader than the generic
offense to “determine, in light of the facts in the judicially
noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually
required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id.

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Aguila-Montes de Oca was published during the interim
between the BIA’s decision on Flores-Lopez’s removal and
the date upon which this appeal was submitted for review.3
See Aguila-Montes de Oca, 655 F.3d 915. Thus, when this
matter was first before the IJ, had the IJ determined that CPC
§ 69 was not a categorical crime of violence because it did not
require proof of the requisite level of force, the modified categorical approach would not have applied. The statute was
missing an element of the generic offense. Since the modified
categorical approach was inapplicable, the government had no
reason to submit documentation relevant to the application of
the modified categorical approach. As a result, there is reason
to believe that the record of petitioner’s conviction that is now
before the Court is incomplete. With these considerations in
mind, we consider the abrogation of Navarro-Lopez and the
elimination of the missing element rule to be significant intervening changes in the controlling law, counseling in favor of
remanding the matter to the BIA.
[8] We grant Flores-Lopez’s petition. Because the record
of Flores-Lopez’s conviction may be incomplete, we remand
3

Petitioner argues that Aguila-Montes de Oca should not be applied
retroactively because aliens may have pled guilty to convictions under
missing element statutes on reliance of the rule. This argument does not
have merit. The “default principle is that a court’s decisions apply retroactively to all cases still pending before the courts.” Nunez-Reyes v. Holder,
646 F.3d 684, 690 (9th Cir. 2011). This Court recently elaborated on the
narrow set of circumstances in which an appellate court may have the
option under Chevron Oil to apply a rule prospectively: “(1) in a civil
case; (2) when we announce a new rule of law, as distinct from applying
a new rule that we or the Supreme Court previously announced; (3) and
when the new rule does not concern our jurisdiction.” Nunez-Reyes, 646
F.3d at 691. Here, Aguila-Montes de Oca eliminated the “missing element” rule without indicating whether the rule would apply prospectively
only. Therefore, the “default principle” applies and the rule should apply
to all cases currently pending before the Courts, including this one. We are
not empowered to hold that the rule will only apply prospectively because
the case now before us is not the case in which the missing element rule
was eliminated. Id.

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to the BIA to apply the modified categorical approach in the
first instance.
GRANTED and REMANDED.