FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN MELGOZA GUERRERO, aka No. 15-72080 Juan Francisco Mendoza Guerro, Petitioner, Agency No. A087-677-945 v. MATTHEW WHITAKER, Acting OPINION Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 16, 2018 San Francisco, California Filed November 9, 2018 Before: Sidney R. Thomas, Chief Judge, Susan P. Graber, Circuit Judge, and Robert S. Lasnik,* District Judge. Opinion by Judge Graber * The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 MELGOZA GUERRERO V. WHITAKER SUMMARY** Immigration The panel denied in part and granted in part a petition for review of the Board of Immigration Appeals’ final order of removal, holding that the statutory phrase “particularly serious crime,” as set forth in 8 U.S.C. § 1231(b)(3)(B), is not unconstitutionally vague on its face. In considering whether the particularly serious crime provision is unconstitutionally vague, the panel addressed this court’s prior opinion in Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) (holding that the particularly serious crime statute is not unconstitutionally vague). Applying the teachings of Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held, respectively, that the residual clauses of the Armed Career Criminal Act and 18 U.S.C. § 16(b) were unconstitutionally vague, the panel concluded that the court applied the wrong legal standard in Alphonsus, by requiring that a petitioner “must establish that no set of circumstances exists under which the statute would be valid.” The panel explained that Johnson and Dimaya expressly rejected the notion that a statutory provision survives a facial vagueness challenge merely because some conduct clearly falls within the statute’s scope. Considering the issue anew, the panel again held that the particularly serious crime statute is not unconstitutionally ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MELGOZA GUERRERO V. WHITAKER 3 vague, because although the statute to some extent provides an uncertain standard to be applied to a wide range of fact- specific scenarios, the inquiry applies only to real world facts, unlike Johnson and Dimaya, which each applied an uncertain standard to an idealized crime in the context of the categorical approach. The panel explained that the particularly serious crime inquiry requires consideration of what a petitioner actually did, and therefore does not suffer from the fatal combination of an imprecise standard on top of an “ordinary case” inquiry at issue in Johnson and Dimaya. In a concurrently filed unpublished memorandum disposition, the panel addressed Guerrero’s remaining arguments, concluding that the Board did not abuse its discretion in determining that Guerrero committed a particularly serious crime that made him ineligible for statutory withholding of removal and withholding of removal under the Convention Against Torture, but granting the petition with respect to the Board’s denial of deferral ...
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