                      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 of
removal under the Convention Against Torture.


                         COUNSEL

Ann F. Barhoum (argued), Olmos & Barhoum LLP, San Jose,
California; Monica Ganjoo, Ganjoo Law Office, San
Francisco, California; for Petitioner.

Andrew N. O’Malley (argued) and Anh-Thu P. Mai-Windle,
Senior Litigation Counsel; Stephen J. Flynn, Assistant
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
4              MELGOZA GUERRERO V. WHITAKER

                               OPINION

GRABER, Circuit Judge:

    Petitioner Juan Melgoza Guerrero, a native and citizen of
Mexico, timely seeks review of a final order of removal. In
particular, he challenges the Board of Immigration Appeals’
(“BIA”) determination that he has been convicted of a
“particularly serious crime” within the meaning of 8 U.S.C.
§ 1231(b)(3)(B)(ii), which rendered him ineligible for
statutory withholding of removal and withholding of removal
under the Convention Against Torture (“CAT”). He also
challenges the BIA’s denial of deferral of removal under
CAT.

    In this opinion, we address only the legal argument that
the statutory phrase “particularly serious crime” is
unconstitutionally vague on its face following the Supreme
Court’s decisions in Johnson v. United States, 135 S. Ct. 2551
(2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).
Reviewing de novo, Guo v. Sessions, 897 F.3d 1208, 1212
(9th Cir. 2018), we hold that the statutory provision survives
facial scrutiny.1

    An alien is entitled to withholding of removal if “the
alien’s life or freedom would be threatened in that country

    1
      In an unpublished disposition filed this date, we address Petitioner’s
remaining arguments, which turn on the factual specifics of his case. We
conclude that the BIA did not abuse its discretion in determining that
Petitioner committed a particularly serious crime. Accordingly, we deny
the petition with respect to both forms of withholding of removal. But we
hold that substantial evidence does not support the BIA’s determination
concerning deferral of removal under CAT. We therefore grant the
petition in that respect.
            MELGOZA GUERRERO V. WHITAKER                    5

because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). An exception exists if the alien, “having
been convicted by a final judgment of a particularly serious
crime[,] is a danger to the community of the United States.”
Id. § 1231(b)(3)(B)(ii). The statute further provides:

       For purposes of clause (ii) [the “particularly
       serious crime” provision], an alien who has
       been convicted of an aggravated felony (or
       felonies) for which the alien has been
       sentenced to an aggregate term of
       imprisonment of at least 5 years shall be
       considered to have committed a particularly
       serious crime. The previous sentence shall
       not preclude the Attorney General from
       determining that, notwithstanding the length
       of sentence imposed, an alien has been
       convicted of a particularly serious crime.

Id. § 1231(b)(3)(B).

    We previously have detailed the extensive history of the
“particularly serious crime” provision and its present
operation. Alphonsus v. Holder, 705 F.3d 1031, 1037–41 (9th
Cir. 2013). Three categories of crimes may be determined to
be particularly serious. First, by statute, any aggravated
felony that carried an aggregate term of at least five
years’ imprisonment is particularly serious. 8 U.S.C.
§ 1231(b)(3)(B). Second, in general, all other crimes may, on
a case-by-case basis, be determined to be particularly serious
by considering the factors described in In re Frentescu, 18
I. & N. Dec. 244 (B.I.A. 1982), as applied to the facts of the
alien’s conviction. Third, the Attorney General has specified,
6           MELGOZA GUERRERO V. WHITAKER

in a published opinion, that all drug-trafficking offenses are
particularly serious except in “very rare” instances. In re Y-
L-, 23 I. & N. Dec. 270, 276 (A.G. 2002).

    In Alphonsus, 705 F.3d at 1041–43, we held that the
“particularly serious crime” provision is not
unconstitutionally vague on its face. “First, and most
importantly, the statutory text indicates that the key to
determining whether a crime is particularly serious is whether
the nature of the crime shows that the alien poses a danger to
the community of the United States.” Id. at 1042–43.
Second, the statute itself describes a large category of
crimes—aggravated felonies with sentences of at least five
years’ imprisonment. Id. at 1043. “The aggravated felony
definitions serve both to delineate the group of per se
particularly serious crimes and to suggest the types of crimes
most likely to be covered by the statute even when the
aggregate sentence is less than five years.” Id. Finally, “the
BIA has specified at least one category of offenses—drug
trafficking crimes—which will almost always be particularly
serious crimes for withholding purposes.” Id. (citing In re Y-
L-, 23 I. & N. Dec. at 276). “In sum, § 1231(b)(3)(B) does
cover an ascertainable core set of convictions, and the BIA’s
interpretive glosses have added some specificity as well.” Id.

     As a three-judge panel, we are bound by Alphonsus unless
it is “clearly irreconcilable” with the reasoning or theory of
an intervening Supreme Court decision or other higher
authority. Miller v. Gammie, 335 F.3d 889, 893, 899–900
(9th Cir. 2003) (en banc). We therefore examine the Supreme
Court’s recent cases applying the vagueness doctrine.

    In Johnson, 135 S. Ct. at 2557, the Court held that the
residual clause of the Armed Career Criminal Act (“ACCA”)
            MELGOZA GUERRERO V. WHITAKER                      7

was unconstitutionally vague. That clause was the portion of
18 U.S.C. § 924(e)(2)(B)(ii), emphasized below, that defined
a “violent felony” as a crime that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” The Court held that a criminal law
violates the Due Process Clause if it is “so vague that it fails
to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement.”
Johnson, 135 S. Ct. at 2556.

      “Two features of the residual clause conspire to make it
unconstitutionally vague.” Id. at 2557. The first feature
concerned the categorical approach, which requires the court
to ask about the risk of physical injury caused not by the
defendant’s particular crime, but by an “idealized ordinary
case” of the crime. Id. at 2557–58. The Court asked: “How
does one go about deciding what kind of conduct the
‘ordinary case’ of a crime involves? A statistical analysis of
the state reporter? A survey? Expert evidence? Google?
Gut instinct?” Id. at 2557 (internal quotation marks omitted).
Moreover, “picturing the criminal’s behavior is not enough;
. . . assessing ‘potential risk’ seemingly requires the judge to
imagine how the idealized ordinary case of the crime
subsequently plays out.” Id. at 2557–58. The second feature
concerned the “uncertainty about how much risk it takes for
a crime to qualify as a violent felony.” Id. at 2558. “It is one
thing to apply an imprecise ‘serious potential risk’ standard
to real-world facts; it is quite another to apply it to a judge-
imagined abstraction.” Id. “By combining indeterminacy
about how to measure the risk posed by a crime with
indeterminacy about how much risk it takes for the crime to
qualify as a violent felony, the residual clause produces more
8           MELGOZA GUERRERO V. WHITAKER

unpredictability and arbitrariness than the Due Process Clause
tolerates.” Id.

    In a separate section of the opinion, the Court addressed
the applicable legal standard. The Court rejected the
argument that “a vague provision is constitutional merely
because there is some conduct that clearly falls within the
provision’s grasp.” Id. at 2561. Specifically, the Court
rejected the legal standard “that ‘a statute is void for
vagueness only if it is vague in all its applications.’” Id.
(quoting id. at 2574 (Alito, J., dissenting)).

    In Dimaya, the Court held that a similarly worded residual
clause, this time found in 18 U.S.C. § 16(b), also was
unconstitutionally vague. 138 S. Ct. at 1213. Johnson
“effectively resolved the case,” because § 16(b)’s residual
clause “has the same two features as ACCA’s, combined in
the same constitutionally problematic way.” Id.; see id. at
1213–16 (detailed analysis, tracking Johnson). In a footnote,
the Court reiterated the point that a vague provision is not
saved by the fact that the provision clearly captures some
conduct. Id. at 1214 n.3.

    Applying the teachings of Johnson and Dimaya here, we
conclude that we applied the wrong legal standard in
Alphonsus. There, we held that the petitioner “must establish
that no set of circumstances exists under which the statute
would be valid.” Alphonsus, 705 F.3d at 1042 (brackets
omitted) (quoting United States v. Salerno, 481 U.S. 739, 745
(1987)). In a footnote, we observed that the “no set of
circumstances” standard was subject to some doubt but that
we would continue to apply that standard “until a majority of
the Supreme Court directs otherwise.” Id. at 1042 n.11
(internal quotation marks and brackets omitted). That day has
            MELGOZA GUERRERO V. WHITAKER                      9

come. 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. Johnson, 135 S. Ct. at 2561; Dimaya, 138 S. Ct. at
1214 n.3. Accordingly, Alphonsus’ reasoning is, in part,
clearly irreconcilable with Johnson and Dimaya. We
therefore address with fresh eyes whether the “particularly
serious crime” provision is unconstitutionally vague.

    As noted above, the statutory provision denies some
forms of relief if the “alien, having been convicted by a final
judgment of a particularly serious crime[,] is a danger to
the community of the United States.”                8 U.S.C.
§ 1231(b)(3)(B)(ii). The term “particularly serious crime”
requires the agency to place the alien’s conviction along a
spectrum of seriousness. The surrounding text provides two
clues as to whether a crime is “particularly serious”: the
crime must allow an inference that the person is a “danger to
the community of the United States”; and aggravated felonies
with resulting sentences of at least five years are per se
particularly serious, though the statutory text makes clear that
other crimes, too, may be particularly serious. As we noted
in Alphonsus, the per se category “suggest[s] the types of
crimes most likely to be covered by the statute even when the
aggregate sentence is less than five years.” 705 F.3d at 1043.

    We know with certainty that a minor traffic infraction is
not “particularly serious” and that a heinous, violent crime is
“particularly serious.” But for the crimes in between, the
statute provides little guidance. Instead, the statute provides
an uncertain standard to be applied to a wide range of fact-
specific scenarios. In that sense, the standard is uncertain.
But that kind of uncertainty does not mean that a statute is
unconstitutionally vague. Many statutes provide uncertain
10          MELGOZA GUERRERO V. WHITAKER

standards and, so long as those standards are applied to real-
world facts, the statutes are almost certainly constitutional.
The problem in Johnson and Dimaya was not that the terms
were uncertain in isolation; the problem was that the
uncertainty had to be applied to an idealized crime:

       [Many laws] require gauging the riskiness of
       conduct in which an individual defendant
       engages on a particular occasion. As a
       general matter, we do not doubt the
       constitutionality of laws that call for the
       application of a qualitative standard such as
       “substantial risk” to real-world conduct; the
       law is full of instances where a man’s fate
       depends on his estimating rightly some matter
       of degree. The residual clause, however,
       requires application of the “serious potential
       risk” standard to an idealized ordinary case of
       the crime.

Johnson, 135 S. Ct. at 2561 (citation, ellipsis, and some
internal quotation marks omitted).

       Many perfectly constitutional statutes use
       imprecise terms like “serious potential risk”
       (as in ACCA’s residual clause) or “substantial
       risk” (as in § 16’s). The problem came from
       layering such a standard on top of the
       requisite “ordinary case” inquiry.

Dimaya, 138 S. Ct. at 1214.

   Critically, the “particularly serious crime” inquiry in
8 U.S.C. § 1231(b)(3)(B)(ii) applies only to real-world facts.
            MELGOZA GUERRERO V. WHITAKER                  11

Unlike many standards in the immigration context, the
“particularly serious crime” inquiry requires the BIA to
assess what the alien actually did; “the categorical and
modified categorical approaches . . . are not applicable to
evaluating whether a crime is ‘particularly serious,’” Anaya-
Ortiz v. Holder, 594 F.3d 673, 680 (9th Cir. 2010) (citation
omitted). Accordingly, the fatal combination at issue in
Johnson and Dimaya is absent here. The “particularly serious
crime” inquiry requires an imprecise line-drawing exercise,
but it is no less certain than the “perfectly constitutional
statutes” that the Supreme Court discussed. Dimaya, 138
S. Ct. at 1214. We hold that the “particularly serious crime”
provision is not unconstitutionally vague on its face.

    Petition DENIED in part and GRANTED in part. The
parties shall bear their own costs on appeal.
