Mendoza-Garcia v. Garland

• Decision Date: 10 June 2022
• Docket Number: 20-73583
• Parties: Diego MENDOZA-GARCIA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.4th 989

Diego MENDOZA-GARCIA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-73583

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2021 San Francisco, California

Filed June 10, 2022

Nancy Alexander (argued), Lucas & Barba LLP, Portland, Oregon, for Petitioner.

Rebekah Nahas (argued), Trial Attorney; Lindsay Glauner, Senior Litigation Counsel, Criminal Immigration Team; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Kari E. Hong, Boston College Law School, Newton, Massachusetts; Elisa Steglich, Attorney; Simon Lu and Jill Applegate, Supervised Law Student; University of Texas School of Law, Austin, Texas; for Amicus Curiae American Immigration Lawyers Association.

Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,^* Judge.

CHOE-GROVES, Judge:

Petitioner Diego Mendoza-Garcia, a native and citizen of Mexico, seeks review of the Board of Immigration Appeals' ("BIA") decision affirming his removability and denying his applications for withholding of removal and protection under the Convention Against Torture ("CAT"). The BIA concluded that Petitioner's 2016 conviction for first-degree burglary under Oregon law qualified as an aggravated felony and rendered him removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA also found that Petitioner was ineligible for asylum, withholding of removal, and protection under the CAT. We conclude that Petitioner is subject to removal because of his conviction for first-degree burglary of a dwelling under Oregon law. In doing so, we recognize that United States v. Cisneros , 826 F.3d 1190 (9th Cir. 2016), is irreconcilable with a later decision of the United States Supreme Court and is overruled. We deny in part the petition as it pertains to the BIA's finding that Petitioner was removable and the BIA's denial of Petitioner's application for protection under the CAT. But, because the BIA misapplied a presumption in its analysis of Petitioner's withholding-of-removal claim, we grant the petition in part and remand for further proceedings on that issue.

I.

Petitioner is a native and citizen of Mexico and became a permanent resident of the United States in 2000. In 2016, Petitioner pleaded guilty to and was convicted of first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225. The information and subsequent indictment charged Petitioner with unlawfully and knowingly entering and remaining in a dwelling with the intent to commit theft. He was initially sentenced to 36 months of supervised probation. Following a probation violation, Petitioner was ordered committed to the custody of the Oregon State Department of Corrections for 55 months.

The Government initiated removal proceedings against Petitioner, charging him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who was convicted of an aggravated felony for which he received a sentence of at least one year. In October 2019, Petitioner filed a motion to terminate his removal proceedings. He argued that first-degree burglary under Oregon law is indivisible and overbroad as an aggravated felony and that the Government failed to demonstrate his removability by clear and convincing evidence as it was not established that he was sentenced to at least one year of imprisonment. In denying the motion, the immigration judge ("IJ") ruled that, following United States v. Stitt , ––– U.S. ––––, 139 S. Ct. 399, 406, 202 L.Ed.2d 364 (2018), first-degree burglary under Oregon law is a categorical match to generic burglary and that Petitioner was sentenced to at least one year of imprisonment for violating his probation.

Petitioner applied for cancellation of removal, asylum, withholding of removal, and protection under the CAT. He argued that his history of alcohol dependency would place him at risk of harm because of the lack of safe support programs in Mexico and that his visible cultural and religious tattoos would make him a target for the police, gangs, cartels, and other organized groups. The IJ found Petitioner to be statutorily ineligible for asylum for having been convicted of an aggravated felony. Petitioner was found ineligible for withholding of removal because his conviction for first-degree burglary was deemed to be a particularly serious crime. In the alternative, the IJ denied withholding of removal because Petitioner failed to demonstrate that it was more likely than not that he would be persecuted based on his membership in a particular group if removed to Mexico. The IJ also denied Petitioner's application for CAT protection, finding that he failed to demonstrate that it was more likely than not that he would be tortured if removed to Mexico.

Petitioner appealed the IJ's decision to the BIA. In affirming the IJ's decision, the BIA rejected Petitioner's argument that the Oregon first-degree burglary statute is overbroad because it includes nonpermanent structures, structures used solely for business purposes, curtilages, and structures that were entered lawfully. The BIA affirmed the decision of the IJ, concluding that first-degree burglary under Oregon law is an aggravated felony, making Petitioner subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA denied Petitioner's withholding of removal claim based on a presumption that the burglary conviction was a particularly serious crime. The BIA also denied Petitioner's claim for protection under the CAT.

II.

We review questions of law de novo, including whether a conviction is a removable offense. Mielewczyk v. Holder , 575 F.3d 992, 994 (9th Cir. 2009). The agency's factual findings are reviewed for substantial evidence. 8 U.S.C. § 1252(b)(4)(B). We review the BIA's determination of whether a crime is particularly serious for abuse of discretion. Arbid v. Holder , 700 F.3d 379, 383 (9th Cir. 2012) (per curiam). We may reverse the BIA's decision for abuse of discretion only if we determine that the BIA acted "arbitrarily, irrationally, or contrary to law." Id. at 385 (internal quotation marks omitted).

III.

We consider, in turn, the BIA's determination of Petitioner's removability and its denials of Petitioner's applications for withholding of removal and CAT protection.

A.

Petitioner was charged with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides: "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." The Government bases its charge on Petitioner's first-degree burglary conviction. Aggravated felonies include a "burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). Petitioner argues that the BIA failed to recognize that (1) the Oregon first-degree burglary statute is not a categorical match with generic burglary because it is indivisible and overbroad and (2) the Government did not prove by clear and convincing evidence that Petitioner was sentenced to a term of imprisonment of at least one year.

1.

In determining whether Petitioner's conviction is an aggravated felony, we apply the categorical approach outlined in Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in which we look to whether first-degree burglary under Oregon law substantially corresponds to, or is narrower than, the elements of generic burglary. Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 1880, 204 L.Ed.2d 200 (2019). The Supreme Court has defined the elements of generic burglary as the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor , 495 U.S. at 599, 110 S.Ct. 2143. In comparing this generic definition to the conviction statute, we disregard the specific facts of the case and look only to the elements of the two crimes. Moncrieffe v. Holder , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013).

The Oregon statute provides that first-degree burglary occurs when a person:

violates [ Oregon Revised Statutes section] 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a) Is armed with a burglary tool or theft device as defined in [ Oregon Revised Statutes section] 164.235 or a deadly weapon;

(b) Causes or attempts to cause physical injury to any person; or

(c) Uses or threatens to use a dangerous weapon.

Or. Rev. Stat. § 164.225(1). This statute incorporates section 164.215, which criminalizes as second-degree burglary "enter[ing] or remain[ing] unlawfully in a building with intent to commit a crime therein." Id. § 164.215(1).

In United States v. Cisneros , we held that Oregon first-degree burglary is not a categorical match to generic burglary because the definition of "building" used in the statute includes nonpermanent and immobile structures, such as "booths, vehicles, boats, or aircrafts" that were excluded from the generic definition of burglary articulated in Taylor . Cisneros , 826 F.3d at 1194 (citing Taylor , 495 U.S. at 599, 110 S.Ct. 2143 ). Cisneros relied on United States v. Grisel , 488 F.3d 844 (9th Cir. 2007) (en banc). There, we held that a "building or structure" under the "federal definition of generic burglary" does not include structures such as trailers and boats and is limited to "constructed edifices intended for use in one place." Grisel , 488 F.3d at 848–849, 851, abrogated by Stitt , 139 S. Ct. 399 (2018).

Two years after we issued Cisneros , the Supreme Court decided United States v. Stitt. The Court held that the inclusion of nonpermanent structures "designed or adapted for overnight use" does not expand a statute beyond the definition of generic burglary. Stitt , 139 S. Ct. at 407. This change in the law warrants a renewed consideration of Cisne...