Lopez-Cardona v. Holder
2011 U.S. App. LEXIS 23032
| 9th Cir. | 2011Background
- Lopez-Cardona, a native and citizen of El Salvador, seeks review of BIA and IJ decisions denying withholding of removal and CAT relief.
- He was convicted in California in March 2007 of three counts of first-degree residential burglary under Penal Code § 459 and sentenced to three concurrent four-year terms.
- He was also convicted in February 2006 of two methamphetamine offenses under Health and Safety Code § 11550(a), with 90-day jail terms for each.
- These convictions render him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for an aggravated felony and under § 1227(a)(2)(B)(i) for an offense involving a controlled substance.
- The IJ denied withholding of removal on the basis that the burglary conviction was a particularly serious crime; the BIA adopted and added reasons, and Lopez pursued CAT deferral claim.
- The court held that a California § 459 residential burglary conviction is a crime of violence by its nature, making it a particularly serious crime, rendering Lopez ineligible for withholding; CAT deferral requires a separate, fact-intensive showing of torture, which Lopez failed to prove.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is CA § 459 residential burglary a crime of violence under 18 U.S.C. § 16(b)? | Lopez-Cardona argues Becker controls; residential burglary inherently involves substantial risk of force. | HOLDER contends Aguila-Montes de Oca undermines the Becker-based conclusion, potentially avoiding categorization as a crime of violence. | Yes; CA § 459 burglary is a crime of violence by its nature. |
| Does Aguila-Montes de Oca change the Becker result on the crime of violence issue? | Aguila-Montes narrows categorization but may not definitively resolve whether residential burglary is a crime of violence by nature. | Aguila-Montes modifies the scope but does not clearly dissociate from Becker on the underlying risk concept. | Aguila-Montes does not clearly overrule Becker; Lopez remains ineligible for withholding. |
| Is Lopez eligible for CAT deferral based on a likelihood of torture if removed? | Lopez argues past gang beating supports feared torture; police protection evidence is weak but not fatal if probative. | Defendant contends the record shows insufficient likelihood of torture and that police presence reduces risk. | Lopez is not entitled to CAT deferral; failure to prove more likely than not torture. |
Key Cases Cited
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (defines 'crime of violence' by risk of force in the offense)
- Becker, 919 F.2d 568 (9th Cir. 1990) (California burglary categorically a crime of violence under the generic approach)
- James v. United States, 550 U.S. 192 (2007) (proper inquiry for categorical approach assesses ordinary-case risk)
- United States v. Park, 649 F.3d 1175 (9th Cir. 2011) (discusses multiple 'crime of violence' tests across contexts)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc: burglary conviction not categorically generic burglary; limited impact on 'by its nature' standard)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc decision controlling when to follow prior precedents)
- Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) (notes multiple definitions of 'crime of violence' in different statutes)
- United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (addressed burglary as a crime of violence under § 16(b))
- James v. United States, 550 U.S. 192 (2007) (interpretation of 'risk of injury' in the ordinary case for categorical approach)