Lopez-Aguilar v. Barr

• Decision Date: 28 January 2020
• Docket Number: No. 17-73153,17-73153
• Citation: 948 F.3d 1143
• Parties: Ludwin Israel LOPEZ-AGUILAR, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

948 F.3d 1143

Ludwin Israel LOPEZ-AGUILAR, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 17-73153

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2019 Portland, Oregon

Filed January 28, 2020

BERZON, Circuit Judge:

Petitioner Ludwin Israel Lopez-Aguilar, a native and citizen of Guatemala, seeks review of a final order of the Board of Immigration Appeals ("BIA") finding him removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), because of his conviction under Oregon Revised Statutes section 164.395, and denying his application for relief under the Convention Against Torture ("CAT"). We grant Lopez-Aguilar’s petition because we conclude that section 164.395 is not a categorical theft offense and, therefore, not an aggravated felony under § 101(a)(43)(G) of the INA. Because we conclude that Lopez-Aguilar is not removable, we do not reach the question whether the record supports the BIA’s denial of CAT relief.

I

Lopez-Aguilar is a native and citizen of Guatemala. He entered the United States in 1989, when he was three years old, and became a legal permanent resident in March 2001, when his application for suspension of deportation was granted.

In 2014, Lopez-Aguilar was convicted of third-degree robbery in violation of Oregon Revised Statutes section 164.395 and sentenced to 13 months in prison. The government initiated removal proceedings against Lopez-Aguilar based on the robbery conviction.

An immigration judge ("IJ") found Lopez-Aguilar removable as an alien convicted of an aggravated felony as defined in section 101(a)(43)(G) of the INA, which defines theft offenses for which the term of imprisonment is at least one year. The BIA agreed that the conviction was for a theft offense under section 101(a)(43)(G).¹

The BIA rejected Lopez-Aguilar’s argument that section 164.395 is overbroad because it incorporates theft by deception and thus covers consensual takings. The BIA concluded that the statute requires taking property by force, which negates the consensual nature of theft by deception. The BIA also rejected Lopez-Aguilar’s argument that section 164.395 is overbroad because it covers mere unauthorized use of a vehicle, affirmed the denial of Lopez-Aguilar’s petition for relief under CAT, and affirmed the order that Lopez-Aguilar be removed to Guatemala.

II

We have jurisdiction to review final orders of removal based on a petitioner’s commission of an aggravated felony to the extent that the petition "raises ... questions of law." Ngaeth v. Mukasey , 545 F.3d 796, 800 (9th Cir. 2008) (per curiam) (quoting Vizcarra-Ayala v. Mukasey , 514 F.3d 870, 872 (9th Cir. 2008) ). Whether a particular offense is an "aggravated felony" under the INA is a question of law that we review de novo. Id.

Lopez-Aguilar argues that section 164.395 exceeds the generic definition of a theft offense because it incorporates consensual takings via theft by deception, and the force elements do not impose a requirement that the defendant engage in a nonconsensual taking. We agree.

To determine whether a particular conviction is for a generic offense, we use the categorical and modified categorical approaches of Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Under the categorical approach, we "compare the elements of the statute forming the basis of the defendant’s conviction"—here, Or. Rev. Stat. section 164.395 —"with the elements of the ‘generic’ crime." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). There is a categorical match "only if the statute’s elements are the same as, or narrower than, those of the generic offense." Id. If the statute of conviction is broader than the generic offense, we next determine whether the statute is divisible or indivisible. Medina-Lara v. Holder , 771 F.3d 1106, 1112 (9th Cir. 2014). Only when an overbroad statute is divisible do we turn to the "modified categorical approach." Descamps , 570 U.S. at 263–64, 133 S.Ct. 2276. An overbroad and indivisible statute does not constitute a generic crime. Id . at 264–65, 133 S.Ct. 2276 ; Medina-Lara , 771 F.3d at 1112.

A

"A state offense qualifies as a generic offense—and therefore, in this case, as an aggravated felony—only if the full range of conduct covered by [the state statute] falls within the meaning of the generic offense." United States v. Alvarado-Pineda , 774 F.3d 1198, 1202 (9th Cir. 2014) (citation and internal quotation marks omitted). Gonzales v. Duenas-Alvarez held that a state conviction is not a categorical match for its generic counterpart if there is "a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).

There are two ways to show "a realistic probability" that a state statute exceeds the generic definition. First, there is not a categorical match if a state statute expressly defines a crime more broadly than the generic offense. United States v. Grisel , 488 F.3d 844, 850 (9th Cir. 2007) (en banc), abrogated on other grounds by United States v. Stitt , ––– U.S. ––––, 139 S. Ct. 399, 202 L.Ed.2d 364 (2018). As long as the application of the statute’s express text in the nongeneric manner is not a logical impossibility, the relative likelihood of application to nongeneric conduct is immaterial. See United States v. Valdivia-Flores , 876 F.3d 1201, 1208 (9th Cir. 2017). Second, a petitioner can show that a state statute exceeds the generic definition if the petitioner can "point to at least one case in which the state courts applied the statute" in a situation that does not fit under the generic definition. United States v. Ruiz-Apolonio , 657 F.3d 907, 914 (9th Cir. 2011) (citing Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 ).

Here, the Oregon robbery statute is facially overbroad because its "greater breadth is evident from its text." Grisel , 488 F.3d at 850.

Under the INA, a conviction for a generic theft offense that results in a prison term of at least one year is an aggravated felony. 8 U.S.C. § 1101(a)(43)(G). A generic "theft" is defined as the "taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Duenas-Alvarez , 549 U.S. at 189, 127 S.Ct. 815 (emphasis added) (quoting Penuliar v. Gonzales , 435 F.3d 961, 969 (9th Cir. 2006) ).

The Oregon robbery statute of conviction here provides:

(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:

(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or

(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.

Or. Rev. Stat. § 164.395. Section 164.395 incorporates Oregon’s definition of theft, which includes "theft by deception." Or. Rev. Stat. §§ 164.015(4), 164.085.

The first requirement of section 164.395 is a theft or attempted theft or unauthorized use of a vehicle. A theft by deception satisfies this element. See Or. Rev. Stat. §§ 164.015(4), 164.085. The generic definition of theft requires that the taking be without consent. Alvarado-Pineda , 774 F.3d at 1202. We have explained elsewhere that theft statutes which include theft by deception fall outside the generic definition for theft. See, e.g. , Lopez-Valencia v. Lynch , 798 F.3d 863, 868 (9th Cir. 2015) (explaining that California’s theft statute is overbroad because it includes conduct such as theft by false pretenses, which could be consensual); United States v. Rivera , 658 F.3d 1073, 1077 (9th Cir. 2011) (same), abrogated on other grounds by Lopez-Valencia v. Lynch , 798 F.3d 863 (9th Cir. 2015). Because it is possible to commit theft by deception with the consent of the owner, Oregon’s theft statute expressly includes conduct outside of the generic definition.

The additional robbery elements of section 164.395—namely, the use or threat of force to obtain the property—do not limit the reach of the statute to match the generic definition of theft. A force element generally implies a lack of consent—the force can be used, for example, to overcome resistance or otherwise compel behaviors. But the statute here expressly contemplates that such force may be used to "compel[ ]" "another person," rather than the property owner, "to deliver the property or to engage in other conduct which might aid the commission of the theft." Or. Rev. Stat. § 164.395(1)(b).

Consequently, even with the additional robbery elements, the text of the statute expressly includes situations involving consensual takings. Under subsection (b), a defendant could be convicted if she threatened force against a third party to compel that third party to convince a property owner, by deception, to give the property to the defendant consensually. See Or. Rev. Stat. § 164.395(1)(b) (covering threatened force used to "compel[ ] ... another person to ... engage in [ ] conduct which might aid in the commission of the theft"). In that scenario, the property would have been taken with the consent of the owner, and the force used would not negate the owner’s consent because the force was used against a third party without the owner’s knowledge.

Similarly, under subsection (a), a defendant could be convicted if the taking was consensual (although deceptive), but force was...