Lopez-Aguilar v. Barr

Citation921 F.3d 898
Decision Date23 April 2019
Docket NumberNo. 17-73153,17-73153
Parties Ludwin Israel LOPEZ-AGUILAR, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

TUNHEIM, Chief District Judge:

Petitioner Ludwin Israel Lopez-Aguilar, a native and citizen of Guatemala, petitions for review of a final order of the Board of Immigration Appeals ("BIA") finding him removable pursuant to section 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 protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We deny Lopez-Aguilar's petition because we conclude that: (1) section 164.395 is a categorical theft offense and, therefore, an aggravated felony under section 101(a)(43)(G) of the INA; and (2) the record supports the BIA's denial of CAT relief.

BACKGROUND

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 on March 12, 2001, when his application for suspension of deportation was granted.

In Guatemala, Lopez-Aguilar's father abused his mother physically, sexually, and verbally. Lopez-Aguilar's father also abused him, starting when he was less than a year old, and threatened to kill him. Since Lopez-Aguilar entered the United States, he has never returned to Guatemala, but his mother has returned twice, once for three months and once for three weeks. Lopez-Aguilar's father did not contact her or bother her on those trips, and he has not tried to contact Lopez-Aguilar since 1995. Nevertheless, Lopez-Aguilar fears that, if he is returned to Guatemala, his father will follow through on the threat to kill him.

Lopez-Aguilar was formerly a member of the Norteño gang. He became affiliated with the Norteños at age 16 and was initiated at age 18. He has numerous visible tattoos that he believes make him identifiable as a Norteño. His role as a Norteño involved fighting with members of rival gangs, including Mara Salvatrucha and Barrio 18, both of which operate throughout Guatemala.

Lopez-Aguilar left the gang in 2009. He has not been targeted by any gangs in the United States, and no one has harmed or looked for him. However, he fears that he will be targeted by police or by rival gangs, if returned to Guatemala, because he will be recognizable as a Norteño and seen as suspicious and a foreigner.

I. Lopez-Aguilar's Conviction

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. Section 164.395 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.
(2) Robbery in the third degree is a Class C felony.

Section 164.395 incorporates Oregon's theft definition, which includes "theft by deception." Or. Rev. Stat. § 164.015(4). It also incorporates Oregon's Unauthorized Use of a Vehicle statute, which criminalizes, in relevant part:

(b) Having custody of a vehicle, boat or aircraft pursuant to an agreement between the person or another and the owner thereof whereby the person or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of such vehicle, boat or aircraft, the person intentionally uses or operates it, without consent of the owner, for the person's own purpose in a manner constituting a gross deviation from the agreed purpose; or
(c) Having custody of a vehicle, boat or aircraft pursuant to an agreement with the owner thereof whereby such vehicle, boat or aircraft is to be returned to the owner at a specified time, the person knowingly retains or withholds possession thereof without consent of the owner for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement.

Or. Rev. Stat. § 164.135(1)(b)(c).

II. Immigration Court Proceedings

Because of Lopez-Aguilar's robbery conviction, an immigration judge ("IJ") found him removable as an alien convicted of an aggravated felony as defined in two sections of the INA: (1) section 101(a)(43)(F), which defines crimes of violence, and (2) section 101(a)(43)(G), which defines theft offenses for which the term of imprisonment is at least one year. The IJ also denied Lopez-Aguilar's petition for deferral of removal under the CAT. The IJ ordered Lopez-Aguilar removed to Guatemala.

III. BIA Appeal

The BIA dismissed Lopez-Aguilar's appeal. It disagreed with the IJ's conclusion that Lopez-Aguilar's conviction under Oregon Revised Statutes section 164.395 was for a crime of violence under section 101(a)(43)(F) of the INA but agreed that the conviction was for a theft offense under section 101(a)(43)(G).

The BIA rejected Lopez-Aguilar's argument that section 164.395 is overbroad because it covers consensual takings by incorporating theft by deception. The BIA concluded that the statute also requires taking of property by force, which negates the consensual nature of theft by deception. Accordingly, the BIA found that Lopez-Aguilar had not demonstrated a realistic probability that an individual could be convicted under section 164.395 for a consensual taking.

The BIA also rejected Lopez-Aguilar's argument that section 164.395 is overbroad because it covers unauthorized use of a vehicle, which does not require an intent to deprive the owner of the rights and benefits of ownership. The BIA concluded that the remainder of the statute required an intent to prevent or overcome resistance to the taking, to retain the property immediately after the taking, or to compel another to deliver the property. Accordingly, the BIA found that Lopez-Aguilar had not demonstrated a realistic probability that an individual could be convicted under section 164.395 for unauthorized use of a vehicle without the requisite intent.

Finally, the BIA agreed with the IJ's conclusion that Lopez-Aguilar had not established that he would more likely than not face a particularized risk of torture with the acquiescence of a public official in Guatemala.

This timely petition for review followed.

JURISDICTION AND STANDARD OF REVIEW

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.

We also have jurisdiction to review the BIA's denial of CAT relief where, as here, "the IJ did not rely on [the petitioner's] conviction ... but instead denied relief on the merits." Alphonsus v. Holder , 705 F.3d 1031, 1036–37 (9th Cir. 2013), abrogated on other grounds as recognized in Guerrero v. Whitaker , 908 F.3d 541 (9th Cir. 2018). We review denial of CAT relief for substantial evidence. Owino v. Holder , 771 F.3d 527, 531 (9th Cir. 2014) (per curiam). The substantial evidence standard is "extremely deferential," and we must uphold the BIA's findings "unless the evidence presented would compel a reasonable finder of fact to reach a contrary result." Gebhart v. SEC , 595 F.3d 1034, 1043 (9th Cir. 2010) (quoting Monjaraz-Munoz v. INS , 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir. 2003) (order) ).

DISCUSSION
I. Section 164.395 and Generic Theft Offenses

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. See 8 U.S.C. § 1101(a)(43)(G). To determine whether a particular conviction is for a theft 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 those approaches, we compare Lopez-Aguilar's statute of conviction ( Or. Rev. Stat. § 164.395 ) with the generic crime of theft to determine whether the latter encompasses the former. See Hernandez-Cruz v. Holder , 651 F.3d 1094, 1100 (9th Cir. 2011). In the context of an aggravated felony theft offense under section 101(a)(43)(G) of the INA, the generic crime of theft is defined as "[1] a taking of property or an exercise of control over property [2] without consent [3] with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent." Id. at 1100–01 (quoting Carrillo-Jaime v. Holder , 572 F.3d 747, 750 (9th Cir. 2009) ).

Lopez-Aguilar contends that section 164.395 is not categorically a generic theft offense because: (1) it incorporates theft by deception, which covers consensual takings, and (2) it incorporates unauthorized use of a vehicle, which does not require an intent to deprive the owner of the rights and benefits of ownership.

A. Theft by Deception

We conclude that, although section 164.395 theoretically could cover a consensual taking due to its incorporation of theft by deception, there is no realistic probability that Oregon would prosecute such conduct under the statute. To find that a statute of conviction is broader than a generic removable offense...

To continue reading

Request your trial
6 cases
  • United States v. Ghanem
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Abril 2021
  • In re Navarro Guadarrama
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 11 Junio 2019
    ...could cover a consensual taking due to its incorporation of theft by deception," conviction was "unlikely." Lopez-Aguilar v. Barr, 921 F.3d 898, 903-04 (9th Cir. 2019). Contrary to the dissenting opinion, which stated that "[a]s long as the application of the statute's text in the nongeneri......
  • United States v. Magdirila
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 23 Junio 2020
  • United States v. Franklin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 17 Febrero 2021
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT