Barbosa v. Barr

Citation926 F.3d 1053
Decision Date28 March 2019
Docket NumberNo. 15-72092,15-72092
Parties Pedro Aguirre BARBOSA, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
ORDER

Respondent’s motion to depublish is DENIED , and the motion to amend the opinion is GRANTED . The opinion filed on March 28, 2019, and appearing at 919 F.3d 1169, is amended by the opinion filed concurrently with this order as follows:

On slip opinion page 1058, second paragraph, lines 4–6, the sentence beginning with "Because Petitioner" is amended to read as follows: "Because Petitioner pleaded no contest to the relevant charge before the BIA changed its interpretation, the new standard does not apply retroactively to his case."

No further petitions for panel rehearing or rehearing en banc will be entertained.

GRABER, Circuit Judge:

Petitioner Pedro Aguirre Barbosa, a Mexican citizen, was convicted of robbery in the third degree in violation of Oregon Revised Statutes section 164.395. An immigration judge ("IJ") denied relief from removal, and the Board of Immigration Appeals ("BIA") dismissed Petitioner’s appeal. As relevant here, the BIA held that section 164.395 categorically constitutes a crime involving moral turpitude ("CIMT") and that Petitioner had failed to prove membership in a "particular social group" for the purpose of establishing refugee status.

We hold that section 164.395 is not categorically a CIMT, but we agree that Petitioner did not demonstrate membership in a "particular social group." Accordingly, we grant the petition for review in part, deny it in part, and remand to the BIA for further proceedings consistent with this decision.

Sometime between 1997 and 1999, Petitioner entered the United States. In 2008, he was charged with, and pleaded no contest to, a violation of Oregon Revised Statutes section 164.395, which 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[1 ] 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.
(2) Robbery in the third degree is a Class C felony.

In 2010, the government served Petitioner with a notice to appear. Petitioner conceded removability and applied for cancellation of removal, withholding of removal, and other forms of relief.

An IJ denied all of Petitioner’s claims. The BIA affirmed the IJ’s decision. The BIA held, among other things, that section 164.395 constitutes a categorical CIMT and that Petitioner is therefore statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b. Additionally, the BIA held that Petitioner failed to establish membership in a "particular social group," so he was not entitled to withholding of removal under 8 U.S.C. § 1231(b)(3)(A). Petitioner then filed this timely petition for review.

A. Section 164.395 and Crimes Involving Moral Turpitude

To determine whether section 164.395 is a CIMT, we follow the three-step process mandated by Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) :

At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. If this "categorical approach" reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as [a CIMT]. When a statute is "overbroad," meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is "divisible" or "indivisible." If the statute is indivisible, "our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense." Only when a statute is overbroad and divisible do we turn to step three—the "modified categorical approach." At this step, we may examine certain documents from the defendant’s record of conviction to determine what elements of the divisible statute he was convicted of violating.

Almanza-Arenas v. Lynch , 815 F.3d 469, 475 (9th Cir. 2016) (en banc) (quoting Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015) ).

1. Step One: Categorical Approach

To determine whether a state criminal statute is categorically a CIMT, we use a two-step process. Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013). First, we "identify the elements of the statute of conviction." Id. Because "the BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes," we review this step de novo. Id. (internal quotation marks and brackets omitted). Second, we "compare the elements of the statute of conviction to the generic definition of a [CIMT] and decide whether the conviction meets that definition." Id. "The BIA’s conclusion that a particular crime does or does not involve moral turpitude is subject to different standards of review depending on whether the BIA issues or relies on a published decision in coming to its conclusion." Nunez v. Holder , 594 F.3d 1124, 1129 (9th Cir. 2010). Here, the BIA neither issued nor relied on its own published decision. Therefore, "we defer to its conclusion to the extent that it has the ‘power to persuade.’ " Id. (quoting Marmolejo-Campos v. Holder , 558 F.3d 903, 909 (9th Cir. 2009) (en banc)).

The question at this step is "not whether some of the conduct prohibited by the statute is morally turpitudinous, but rather whether all of the conduct prohibited by the statute is morally turpitudinous." Morales-Garcia v. Holder , 567 F.3d 1058, 1062 (9th Cir. 2009) (internal quotation marks and brackets omitted). The Immigration and Nationality Act ("INA") does not define the term "moral turpitude" or detail particular crimes involving moral turpitude. Mendoza v. Holder , 623 F.3d 1299, 1302 (9th Cir. 2010). We have noted that " ‘moral turpitude’ is perhaps the quintessential example of an ambiguous phrase." Marmolejo-Campos , 558 F.3d at 909. Despite that ambiguity, there is agreement that "moral turpitude" generally inheres in offenses involving fraud or those that are inherently "base, vile, or depraved—if they offend society’s most fundamental values, or shock society’s conscience." Mendoza , 623 F.3d at 1302 ; see, e.g. , In re Flores , 17 I. & N. Dec. 225, 227–28 (B.I.A. 1980). "These two categories, however, are not exhaustive." Rivera v. Lynch , 816 F.3d 1064, 1074 (9th Cir. 2016) (providing common law perjury as an example of a CIMT that "does not fit neatly into the two-part framework").

"Absent consistent or logical rules to follow as we determine whether a crime (other than one involving fraud) involves moral turpitude, our most useful guidance often comes from comparing the crime with others that we have previously deemed morally turpitudinous." Nunez , 594 F.3d at 1131. When analyzing robbery offenses, we have compared robbery offenses to theft offenses, many of which involve moral turpitude. See Mendoza , 623 F.3d at 1303–04 ("The BIA’s determination that robbery is a CIMT is also a logical outgrowth of its holding that theft offenses are CIMTs."). Here, the BIA held that section 164.395 "describes an offense that is committed by a defendant who employs the use or threatened use of physical force with the intent to commit the theft or unauthorized use of a vehicle." The decision cites Mendoza , 623 F.3d at 1303–04, which analogized robbery to theft and applied that comparison to hold that California’s robbery statute is categorically a CIMT.

But Oregon Revised Statutes section 164.395 is materially broader than the California robbery statute at issue in Mendoza . Specifically, section 164.395 encompasses the unauthorized use of a vehicle, which does not include as an essential element an intent to deprive the owner of his or her property permanently . See State v. Pusztai , 269 Or.App. 893, 348 P.3d 241, 243–44 (2015) (holding that unauthorized use of a vehicle under section 164.135 requires knowing use of the vehicle but does not require an intent to deprive the owner of the vehicle permanently). Under longstanding BIA precedent, "a theft offense [was] not categorically a crime of moral turpitude if the statute of conviction is broad enough to criminalize a taking with intent to deprive the owner of his property only temporarily." Almanza-Arenas , 815 F.3d at 476 (quoting Castillo-Cruz v. Holder , 581 F.3d 1154, 1159 (9th Cir. 2009) ).

We recognize that the BIA recently adopted a more expansive standard for determining whether a theft offense constitutes a CIMT. See In re Diaz-Lizarraga , 26 I. & N. Dec. 847, 854–55 (B.I.A. 2016). Because Petitioner pleaded no contest to the relevant charge before the BIA changed its interpretation, the new standard does not apply retroactively to his case. See Garcia-Martinez v. Sessions , 886 F.3d 1291, 1296 (9th Cir. 2018). Accordingly, under the theft framework for a CIMT applicable to Petitioner, section 164.395 is not a categorical CIMT.2

Robbery includes the additional factor of actual or threatened violence. State v. Hamilton , 348 Or. 371, 233 P.3d 432, 436 (2010). But it is clear that a conviction under section 164.395 requires only minimal physical force. See, e.g. , State v. Johnson , 215 Or.App. 1, 168 P.3d 312, 314–15 (2007) (holding that sufficient evidence supported a conviction under section 164.395 even though the victim only "felt that she was losing her purse")....

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