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Because California Penal Code § 69 does not require proof of the requisite level of intent of force, it is not a categorical crime of violence.

Carlos Alberto Flores-Lopez was admitted as a permanent resident to the United States in 1992. In 2006, Flores-Lopez pled guilty to resisting an executive officer under § 69 of the California Penal Code (“CPC”). The Immigration and Naturalization Services initiated removal of Flores-Lopez as an “alien convicted of a crime of violence aggravated felony.” An immigration judge (“IJ”) granted Flores-Lopez’s motion to terminate removal, finding by clear and convincing evidence that he was not convicted of a crime of violence. This was so because CPC § 69 could be violated through de minimis force, and the government failed to prove Flores-Lopez used anything more than de minimis force. The Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“BIA”), which held that a conviction under CPC § 69 is a categorical crime of violence. This petition for review followed. To be a categorical crime of violence, both categories of CPC § 69 must be crimes of violence. The “actually resisting prong” of CPC § 69 is a general intent crime, and therefore does not create a substantial risk that force will be used. Because CPC § 69 does not require proof of the requisite level of intent, it is not a categorical crime of violence. When this case was before the IJ, the “missing element rule” was in effect. The “revised modified categorical approach” was published between the BIA’s decision on removal and the date of this appeal. For this reason, the Court considered Flores-Lopez’s record incomplete, because DHS may have lacked an opportunity to introduce all relevant evidence. GRANTED and REMANDED.