FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO FLORES-LOPEZ, 

AKA Carlos Alberto Flores, AKA

Carlos Flores-Lopez,

No. 08-75140 Petitioner,

Agency No. v.  A43-738-693

ERIC H. HOLDER Jr., United States

Attorney General, OPINION

Respondent.



On Petition for Review of a Decision of the

Board of Immigration Appeals

Argued and Submitted

February 10, 2012—Pasadena, California

Filed July 9, 2012

Before: Kim McLane Wardlaw and Consuelo M. Callahan,

Circuit Judges, and Ricardo S. Martinez, District Judge.*

Opinion by Judge Martinez

*The Honorable Ricardo S. Martinez, U.S. District Judge for the Western District of Washington, sitting by designation. 

7905
COUNSEL

Holly S. Cooper (argued), The Law Offices of Holly S. Cooper, Davis, California, for the petitioner.

Jane T. Schaffner (argued), Office of Immigration Litigation,

Civil Division; Leslie McKay, Office of Immigration Litigation; Tony West, Assistant Attorney General, U.S. Department of Justice, Washington, D.C., for the respondent.

FLORES-LOPEZ v. HOLDER 7907
OPINION

MARTINEZ, Districe Judge:

Carlos Alberto Flores-Lopez petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing

his appeal from an immigration judge’s decision finding that

his conviction for resisting an executive officer in violation of

section 69 of the California Penal Code (“CPC”) is a categorical crime of violence, rendering him removable under section

237(a)(2)(A)(iii) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted

of an aggravated felony. We have jurisdiction under 8 U.S.C.

1252(a)(2)(D), we grant the petition for review, and we

remand to the BIA for proceedings consistent with this opinion.

I

Flores-Lopez was born in El Salvador and was admitted to

the United States as a legal permanent resident in 1992 on or

around his eleventh birthday. In 2006, he pled guilty to resisting an executive officer in violation of CPC § 69 and was sentenced to one year and four months of imprisonment. 

The procedural history of Flores-Lopez’s removal proceedings is somewhat convoluted. On February 6, 2007, the Immigration and Naturalization Service initiated removal

proceedings against Flores-Lopez by filing a Notice to

Appear. The Notice charged Flores-Lopez with removability

under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),

as an alien convicted of a crime of violence aggravated felony. 

Flores-Lopez first appeared before the immigration judge

(“IJ”) on March 13, 2007. His case was repeatedly postponed

until October 4, 2007, when a hearing was scheduled on contested issues of removability and eligibility for cancellation of

7908 FLORES-LOPEZ v. HOLDER
removal. Two days before the hearing, Flores-Lopez submitted a motion to terminate removal proceedings, arguing that

CPC § 69 was not a categorical crime of violence. 

At the October 4, 2007 hearing, the Department of Homeland Security (“DHS”) offered an abstract of judgment, a

charging document (information), a motion for discovery, and

a pre-conviction probation report as evidence that FloresLopez had been convicted of violating CPC § 69. FloresLopez responded that DHS had failed to meet its burden of

proving that he was removable. Pursuant to his motion to terminate, Flores-Lopez argued that CPC § 69 was not a categorical crime of violence because the statute could be violated

through the use of de minimis force and the government had

failed to prove that Flores-Lopez had used more than de

minimis force in committing the offense.

DHS requested that the case be postponed so that it could

respond to Flores-Lopez’s motion in writing and so that it

could further prepare. The IJ denied the motion for a continuance and proceeded to consider removability. The IJ concluded that DHS had failed to sustain its burden of proving by

clear and convincing evidence that Flores-Lopez had been

convicted of a crime of violence and terminated the removal

proceedings.

DHS filed a timely appeal to the BIA, arguing both that

CPC § 69 was a crime of violence and that the IJ had erred

by refusing to grant DHS a continuance to file a written

response to petitioner’s motion to terminate. DHS also contended that Flores-Lopez was removable on two additional

grounds and requested that the BIA remand the matter to the

IJ so that DHS could lodge an additional charge against

Flores-Lopez. 

The BIA remanded the proceedings to the IJ to allow DHS

to lodge the additional charge. However, on Flores-Lopez’s

motion for reconsideration of the remand order, the BIA

FLORES-LOPEZ v. HOLDER 7909
vacated its decision. Instead, it sustained DHS’s appeal of the

IJ’s decision and held that a conviction under CPC § 69 qualifies categorically as a crime of violence. On that basis, the

BIA remanded the proceedings to the IJ to enter a new decision. 

On September 11, 2008, on remand from the BIA, the IJ

entered an order of removal against Flores-Lopez. FloresLopez appealed, arguing again that CPC § 69 is not a categorical a crime of violence, and the BIA summarily dismissed the

appeal. This petition for review followed.

II

“Whether an offense is an aggravated felony under 8

U.S.C. § 1101(a) is a legal question reviewed de novo.”

Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 519 (9th Cir.

2007) (internal quotation omitted). We review only the BIA’s

decision, except to the extent that it expressly adopts the IJ’s

opinion. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.

1998). Where the BIA issues its own decision but relies in

part on the immigration judge’s reasoning, we review both

decisions. See Alaelua v. I.N.S., 45 F.3d 1379, 1382-83 (9th

Cir. 1995). Here, we review both the original BIA decision,

overturning the IJ’s cancellation of removal, and the second

BIA decision, dismissing Flores-Lopez’s appeal.

III

A

Flores-Lopez is removable if his California conviction for

resisting an executive officer is an aggravated felony, specifically a crime of violence for which the term of imprisonment

is at least one year. See 8 U.S.C. §§ 1227(a)(2)(A)(iii);

1101(a)(43)(F). To determine whether the California conviction is a “crime of violence,” we apply the categorical

approach set forth in Taylor v. United States, 495 U.S. 575

7910 FLORES-LOPEZ v. HOLDER
(1990), looking “only to the fact of conviction and the statutory definition of the prior offense.”

[1] CPC § 69 provides:

Every person who attempts, by means of any threat

or violence, to deter or prevent an executive officer

from performing any duty imposed upon such officer

by law, or who knowingly resists, by the use of force

or violence, such officer, in the performance of his

duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the

state prison, or in a county jail not exceeding one

year, or by both such fine and imprisonment.

The statute may be violated in two ways: (1) by attempting

through threats or violence to deter or prevent an officer from

performing a duty imposed by law; or (2) by resisting by

force or violence an officer in the performance of his or her

duty. In re Manuel G., 941 P.2d 880, 885 (Cal. 1997). The

two ways of violating CPC § 69 have been called the “attempting to deter” prong and the “actually resisting an officer” prong. People v. Lopez, 29 Cal. Rptr. 3d 586 (Cal. Ct.

App. 2005). Because the proscribed conduct under CPC § 69

encompasses two categories of conduct, CPC § 69 is only a

categorical crime of violence if both categories constitute

crimes of violence. 

B

[2] An offense is a “crime of violence” if it is:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

FLORES-LOPEZ v. HOLDER 7911
against the person or property of another may be

used in the course of committing the offense.

8 U.S.C. § 16. The term crime of violence “suggests a category of violent, active crimes.” Leocal v. Ashcroft, 543 U.S.

1, 11 (2004). “We have squarely held that the force necessary

to constitute a crime of violence must actually be violent in

nature.” Singh v. Ashcroft, 386 F.3d 1228, 1233 (9th Cir.

2004) (citing United States v. Ceron-Sanchez, 222 F.3d 1169,

1172 (9th Cir. 2000)) (internal quotation omitted). Specifically, the “physical force” requirement of § 16 demands a

greater degree of force than the mere “offensive touching”

necessary to sustain a conviction of battery. See OrtegaMendez v. Gonzalez, 450 F.3d 1010, 1017 (9th Cir. 2006).

Petitioner argues that a conviction under CPC § 69 is not

a crime of violence because it requires only the use of de

minimis force, as opposed to the “physical force” necessary to

constitute a crime of violence. We agree. The language of

CPC § 69 provides that in order to convict a person under the

statute, the state must prove that the person used or threatened

to use “violence” (for a conviction under the “attempting to

deter” prong) or that he or she used “force or violence” (for

a conviction under the “actually resisting” prong). To determine whether the words “violence” and “force” constitute the

type of “physical force” necessary for an offense to be a crime

of violence, we consider not only the language of the statute

but also how that statute is defined in judicial opinions.

Ortega-Mendez, 450 F.3d at 1016 (citing United States v.

Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997)). 

[3] Here, the use note to the CPC § 69 model jury instructions points to the definition of “force or violence” as used in

the law of battery.

1

See CALJIC 7.50. The battery definition

provides that “ ‘force’ and ‘violence’ are synonymous and

1The use note states: “ ‘Force or violence,’ as used in the law of battery,

is defined at CALJIC 16.141.” CALJIC 7.50. 

7912 FLORES-LOPEZ v. HOLDER
mean any [unlawful] application of physical force against the

person of another, even though it causes no pain or bodily

harm or leaves no mark and even though only the feelings of

such person are injured by the act.”

2

 CALJIC 16.141. This

definition is precisely the definition that we considered in

Ortega-Mendez. 450 F.3d at 1017 (analyzing whether an

offense under CPC § 242, California’s battery statute, was a

crime of violence). There, we held that the instruction comports with the case law for battery and that such conduct, “involving mere offensive touching[,] does not rise to the level

of a ‘crime of violence’ within the meaning of 8 U.S.C.

§ 16(a).” Id. 

[4] Not only does the use note to the instruction for CPC

§ 69 refer to the battery definition of “force or violence,” but

under California law “when a word or phrase has been given

a particular scope or meaning in one part or portion of a law

it shall be given the same scope and meaning in other parts

or portions of the law.” People v. McKay, 27 Cal.4th 601,

621, 622 (2002). Without more, we must assume that the term

“force or violence” is given the same meaning in CPC § 69

as it is given in CPC § 242, California’s battery statute. Since

2The full text reads: 

As used in the foregoing instruction, the words “force” and

“violence” are synonymous and mean any [unlawful] application

of physical force against the person of another, even though it

causes no pain or bodily harm or leaves no mark and even though

only the feelings of such person are injured by the act. The slightest [unlawful] touching, if done in an insolent, rude, or an angry

manner, is sufficient. 

It is not necessary that the touching be done in actual anger or

with actual malice; it is sufficient if it was unwarranted and

unjustifiable. 

The touching essential to a battery may be a touching of the

person, of the person’s clothing, or of something attached to or

closely connected with the person. 

CALJIC 16.141. 

FLORES-LOPEZ v. HOLDER 7913
California’s definition of “force or violence” as used in CPC

§ 69 is broader than the term “physical force” in 8 U.S.C.

§ 16, an offense under CPC § 69 is not a crime of violence

under 8 U.S.C. § 16(a).

C

[5] We now turn to whether an offense under CPC § 69

satisfies the requirements for a crime of violence under the

residual clause at 8 U.S.C. § 16(b). Even if a state offense

does not involve the use, attempted use, or threatened use of

“physical force,” the offense may still qualify as a crime of

violence if it “is a felony and . . . 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.” 8 U.S.C. § 16(b). Neither party disputes that § 69 is

a felony. Therefore, the dispositive issue is whether all of the

conduct proscribed by § 69 creates a substantial risk that

physical force against the person or property of another may

be used. 

The Supreme Court has held that under both clauses of section 16, a crime of violence requires a “higher degree of intent

than negligent or merely accidental conduct” and only “covers

offenses that naturally involve a person acting in disregard of

the risk that physical force might be used against another in

committing an offense.” Leocal, 543 U.S. at 9. Therefore, “in

order to be a predicate offense under either § 16(a) or (b), the

underlying offense must require proof of an intentional use of

force or a substantial risk that force will be intentionally used

during its commission.” United States v. Gomez-Leon, 545

F.3d 777, 787 (9th Cir. 2008) (emphasis in original). Crimes

involving the reckless use of force do not qualify under 8

U.S.C. § 16 as crimes of violence. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006). 

We addressed whether a general intent crime could constitute a “crime of violence” under 8 U.S.C. §16(b) in Covarru7914 FLORES-LOPEZ v. HOLDER
bias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011). There,

we analyzed CPC § 246, which prohibits discharging a firearm into an inhabited building. Because CPC § 246 is a general intent crime, we held that it could not be a categorical

crime of violence under 8 U.S.C. § 16:

Given the elements of that statute set by California

judicial decisions, we can gather with certainty only

that Covarrubias intentionally discharged a gun with

reckless disregard as to whether the bullet would hit

an inhabited vehicle or dwelling. This creates a risk

of injury to other people and damage to property.

But it does not involve a substantial risk of using

force with intent against persons or property . . .

[T]his subjective awareness of possible injury is not

the same as the intentional use of physical force

against the person of another.

Id. at 1054. 

While the California Supreme Court has yet to address

whether the “actually resisting an officer” prong of § 69 is a

general or specific intent crime, “no case has affirmatively

stated that the second clause of section 69 describes an

offense requiring specific intent.” People v. Rasmussen, 117

Cal. Rptr. 3d 588, 595 (Cal. Ct. App. 2010). The appellate

courts have uniformly held, “[t]he definition of the resistance

offense in section 69 describes only the act of resisting an

executive officer and does not require an intent to do a further

act or achieve a future consequence.” Id. at 594; see also People v. Roberts, 182 Cal. Rptr. 757, 761 (Cal. App. Dep’t.

Super. Ct. 1982) (“[T]he second portion of section 69 consists

of only the description of a particular act, without reference

to intent to do a further act or achieve a future consequence

and it is therefore a general intent crime”) (emphasis added)

(quotation marks and internal citations omitted). 

[6] Since the “actually resisting” prong of CPC § 69 is a

general intent crime, we can be certain only that Flores-Lopez

FLORES-LOPEZ v. HOLDER 7915
intentionally used at least de minimis force in resisting an officer with reckless disregard as to whether doing so would

result in the use of non-de minimis force against the person or

property of another. The idea that resisting an officer will

inevitably lead to the use of violent, physical force is “too

speculative to support a conclusion that CPC § [69] is categorically a crime of violence.” Covarrubias, 632 F.3d at

1055. Because a conviction under CPC § 69 does not require

proof of the requisite level of intent to constitute a crime of

violence under 8 U.S.C. § 16(b), an offense under section 69

is not a categorical crime of violence.

The BIA cites Estrada-Rodriguez v. Mukasey, 512 F.3d

517 (9th Cir. 2007), for the proposition that resisting a police

officer, by its nature, creates a substantial risk that physical

force will be used. Estrada-Rodriguez involved Arizona’s

resisting arrest statute, which prohibits resisting arrest by (1)

“[u]sing or threatening to use physical force against the peace

officer or another;” or (2) “[u]sing any other means creating

a substantial risk of causing physical injury to the peace officer or another.” Ariz. Rev. Stat. § 13-2508. There are two

important distinctions between CPC § 69 and the Arizona

resisting arrest statute that distinguish this case from EstradaRodriguez.

First, CPC § 69 does not contain the language of Ariz. Rev.

Stat. § 13-2508 prohibiting the use of “any other means creating a substantial risk of causing physical injury to the peace

officer or another.” By its plain language, this portion of the

Arizona statute tracks more closely the language of § 16(b)

(an offense “that, by its nature, involves a substantial risk that

physical force against the person or property of another may

be used”) than does the language of CPC § 69, which proscribes resistance through the use of force or violence. 

Second, and most importantly, in Estrada, we relied heavily on an Arizona case, State v. Womack, 174 Ariz. 108, 847

P.2d 609, 613 (Ariz. Ct. App. 1992), in which “an Arizona

7916 FLORES-LOPEZ v. HOLDER
appellate court decided that nonviolent flight from an

attempted arrest did not constitute resisting arrest under § 13-

2508(A)(2).” Estrada-Rodriguez, 512 F.3d at 521. There, we

noted that “ ‘[n]either [nonviolent] nonsubmission nor flight

are covered’ by resisting arrest statutes” in Arizona. Id. (citing

Womack, 174 Ariz. at 612). Rather, “[t]here must be actual

opposition or resistance, making necessary, under the circumstances, the use of force.” Id. (citing Womack, 174 Ariz. at

613) (emphasis added). Thus, under the Arizona statute, all of

the potential de minimis uses of force directed against an officer in resisting arrest, discussed above, are interpreted as

exempt from the statute. Here, in contrast, there is no California case law that would support a similar interpretation of

CPC § 69. 

[7] Since CPC § 69 proscribes the use of de minimis force,

and the “actually resisting prong” of CPC § 69 is a general

intent crime and does not by its nature create a substantial risk

that force will be used, the BIA erred in holding that an

offense under CPC § 69 is a categorical crime of violence. 

IV

The only issue on appeal is whether CPC § 69 is a categorical crime of violence. We have held that it is not. This does

not mean, however, that Flores-Lopez did not commit a crime

of violence or that he is not removable. Under the modified

categorical approach, a court may review enumerated documents within the record to determine whether a petitioner’s

plea “ ‘necessarily’ rested on the fact identifying the [offense]

as generic.” Shepard v. United States, 544 U.S. 13, 21 (2005)

(quoting Taylor, 495 U.S. at 602). The government argues

that we should remand the case to the BIA to apply this second step of the analysis. We agree. 

Generally, this Court does not remand a case to the BIA to

apply the modified categorical approach “where only legal

questions remain and these questions do not invoke the

FLORES-LOPEZ v. HOLDER 7917
Board’s expertise; all relevant evidence regarding the conviction had been presented to the BIA in earlier proceedings; and

the BIA had already once determined that the offense fell

within the generic definition of the crime, even if only at the

categorical stage.” Fregozo v. Holder, 576 F.3d 1030, 1036

(9th Cir. 2009) (citing Latu v. Mukasey, 547 F.3d 1070, 1076

(9th Cir. 2008); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079-

80 (9th Cir. 2007); Fernandez-Ruiz, 466 F.3d at 1133-35)).

Here, as in Fregozo, the BIA has already once determined that

the offense fell within the generic definition of the crime at

the categorical stage. However, in contrast to Fregozo, it is

unclear whether DHS had the opportunity to introduce all of

the relevant evidence regarding petitioner’s conviction in the

proceedings below. 

When this case was first before the IJ, the so-called “missing element rule” was still in effect. See, e.g., Navarro-Lopez

v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007). Under this

rule, “[w]hen the crime of conviction is missing an element

of the generic crime altogether, we can never find that a jury

was actually required to find all the elements of the generic

crime.” Id. at 1073 (internal quotation omitted); see also Li v.

Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (providing

examples). Accordingly, a conviction under a state statute that

was missing an element of the generic crime could never

serve as a predicate offense for removal purposes. Id.

In United States v. Aguila-Montes de Oca, we overruled

Navarro-Lopez and all subsequent cases to the extent they

relied on the missing element rule. 655 F.3d 915 (9th Cir.

2011) (en banc). In its place, we directed courts to apply a

“revised modified categorical approach” in all instances in

which the offense of conviction is broader than the generic

offense to “determine, in light of the facts in the judicially

noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually

required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id. 

7918 FLORES-LOPEZ v. HOLDER
Aguila-Montes de Oca was published during the interim

between the BIA’s decision on Flores-Lopez’s removal and

the date upon which this appeal was submitted for review.3

See Aguila-Montes de Oca, 655 F.3d 915. Thus, when this

matter was first before the IJ, had the IJ determined that CPC

§ 69 was not a categorical crime of violence because it did not

require proof of the requisite level of force, the modified categorical approach would not have applied. The statute was

missing an element of the generic offense. Since the modified

categorical approach was inapplicable, the government had no

reason to submit documentation relevant to the application of

the modified categorical approach. As a result, there is reason

to believe that the record of petitioner’s conviction that is now

before the Court is incomplete. With these considerations in

mind, we consider the abrogation of Navarro-Lopez and the

elimination of the missing element rule to be significant intervening changes in the controlling law, counseling in favor of

remanding the matter to the BIA. 

[8] We grant Flores-Lopez’s petition. Because the record

of Flores-Lopez’s conviction may be incomplete, we remand

3Petitioner argues that Aguila-Montes de Oca should not be applied

retroactively because aliens may have pled guilty to convictions under

missing element statutes on reliance of the rule. This argument does not

have merit. The “default principle is that a court’s decisions apply retroactively to all cases still pending before the courts.” Nunez-Reyes v. Holder,

646 F.3d 684, 690 (9th Cir. 2011). This Court recently elaborated on the

narrow set of circumstances in which an appellate court may have the

option under Chevron Oil to apply a rule prospectively: “(1) in a civil

case; (2) when we announce a new rule of law, as distinct from applying

a new rule that we or the Supreme Court previously announced; (3) and

when the new rule does not concern our jurisdiction.” Nunez-Reyes, 646

F.3d at 691. Here, Aguila-Montes de Oca eliminated the “missing element” rule without indicating whether the rule would apply prospectively

only. Therefore, the “default principle” applies and the rule should apply

to all cases currently pending before the Courts, including this one. We are

not empowered to hold that the rule will only apply prospectively because

the case now before us is not the case in which the missing element rule

was eliminated. Id. 

FLORES-LOPEZ v. HOLDER 7919
to the BIA to apply the modified categorical approach in the

first instance. 

GRANTED and REMANDED.

7920 FLORES-LOPEZ v. HOLDER