Juan Melgoza Guerrero v. Matthew Whitaker, Acting Attorney General
908 F.3d 541
| 9th Cir. | 2018Background
- Petitioner Juan Melgoza Guerrero, a Mexican national, sought review of a final order of removal challenging the BIA’s designation of his conviction as a “particularly serious crime,” which precluded statutory withholding of removal and CAT withholding; he also challenged denial of CAT deferral (the court resolved only the vagueness issue in this opinion and noted other factual arguments in a separate unpublished disposition).
- 8 U.S.C. § 1231(b)(3)(B)(ii) bars withholding of removal for an alien convicted of a “particularly serious crime” who is a danger to the U.S. community; the statute makes aggravated felonies with aggregate sentences of at least five years per se particularly serious but allows other determinations.
- The BIA applies a case-by-case, fact-specific analysis (informed by Frentescu factors and prior agency guidance like In re Y-L- regarding drug-trafficking offenses) rather than a categorical approach for the “particularly serious crime” inquiry.
- Ninth Circuit precedent (Alphonsus v. Holder) had previously upheld the statute against facial vagueness challenges, relying on the statute’s text, the per se aggravated-felony category, and BIA interpretive glosses.
- The Supreme Court’s vagueness decisions in Johnson v. United States and Sessions v. Dimaya, invalidating residual clauses that required imagining an “ordinary case” of a crime, prompted reconsideration of Alphonsus’s reasoning and the proper legal standard for facial vagueness.
Issues
| Issue | Guerrero's Argument | Whitaker's Argument | Held |
|---|---|---|---|
| Whether the statutory phrase “particularly serious crime” is unconstitutionally vague on its face after Johnson/Dimaya | The phrase is vague under Johnson/Dimaya and thus facially invalid | The provision is not vague because it applies to real-world facts and contains per se categories and BIA guidance | Not vague on its face; statute survives facial vagueness challenge |
| Whether Alphonsus’s “no set of circumstances” standard remains controlling | Alphonsus standard should invalidate statute under Johnson/Dimaya | Johnson/Dimaya reject Alphonsus’s reliance on the old standard; the court should reassess | Alphonsus’s application of the older standard was wrong; court reanalyzed and upheld the statute |
| Whether the fatal features from Johnson/Dimaya (idealized ordinary-case inquiry + indeterminate risk threshold) are present in §1231(b)(3)(B)(ii) | The statutory language is sufficiently indeterminate to suffer the same defects as ACCA/§16 | The inquiry is fact-specific (real-world conduct), not an ordinary-case abstraction, so the Johnson/Dimaya defects are absent | The statute lacks the Johnson/Dimaya fatal combination because the BIA evaluates actual conduct; thus constitutional |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applying Johnson to strike down §16(b) residual clause)
- Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) (earlier Ninth Circuit upholding §1231(b)(3)(B) against facial vagueness)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (doctrine binding panel to circuit precedent unless clearly irreconcilable)
- Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018) (standard of review: de novo for constitutional questions)
- United States v. Salerno, 481 U.S. 739 (1987) (discussing the "no set of circumstances" test for facial invalidation)