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.