Carlos Flores-Lopez v. Eric H. Holder Jr.
2012 U.S. App. LEXIS 13916
9th Cir.2012Background
- Flores-Lopez, born in El Salvador, entered the U.S. as a legal permanent resident in 1992.
- In 2006 he pled guilty to resisting an executive officer under California Penal Code §69 and was sentenced to 1 year and 4 months.
- In 2007 the INS initiated removal proceedings charging removability under INA §237(a)(2)(A)(iii) as an aggravated felony crime of violence.
- An IJ dismissed removability after finding DHS failed to prove the offense was a categorically a crime of violence; DHS sought remand and reconsideration.
- The BIA initially held CPC §69 categorically a crime of violence, then remanded to the IJ; Flores-Lopez challenged on appeal, arguing §69 is not a categorical crime.
- The court remands to the BIA to apply Aguila-Montes de Oca’s revised approach because the record may be incomplete and the law changed during proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is CPC §69 a categorical crime of violence under §16(a)? | Flores-Lopez contends §69 lacks required physical-force element. | HOLDER argues §69 constitutes a crime of violence under §16(a). | No; §69 is not categorically a crime of violence. |
| Does CPC §69 fall under the residual clause §16(b) as a crime of violence? | Flores-Lopez argues lack of substantial risk of force in the statute’s broad scope. | HOLDER contends residual clause may cover the offense. | Not satisfied; the offense does not inherently involve a substantial risk of force. |
| Should the court apply the modified categorical approach given Aguila-Montes de Oca and record completeness? | Flores-Lopez argues the record may be incomplete and modified categorical approach is required. | HOLDER contends the record was sufficient at the initial stage; remand unnecessary. | Remand to the BIA to apply the modified categorical approach. |
| Is Aguila-Montes de Oca retroactive and applicable to this pending case? | Flores-Lopez argues retroactivity should be limited. | HOLDER asserts default retroactivity applies to cases still pending. | Aguila-Montes de Oca applies retroactively; the rule applies to pending cases. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach to crimes of violence; focus on statutory elements)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (requires actual violence in 'physical force' for violence crimes)
- Ortega-Mendez v. Gonzalez, 450 F.3d 1010 (9th Cir. 2006) (battery definition used to interpret 'force or violence')
- Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011) (general vs specific intent in crimes; missing element rule critique)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (revised modified categorical approach; abrogates Navarro-Lopez)
- Navarro-López v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (missing element rule for predicate offenses (overruled))