Pedro Aguirre Barbosa v. William Barr , 919 F.3d 1169 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO AGUIRRE BARBOSA, No. 15-72092
Petitioner,
Agency No.
v. A095-808-775
WILLIAM P. BARR, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2019
Portland, Oregon
Filed March 28, 2019
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim,* Chief District Judge.
Opinion by Judge Graber;
Concurrence by Judge Berzon
*
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
2 AGUIRRE BARBOSA V. BARR
SUMMARY**
Immigration
The panel granted in part and denied in part Pedro
Aguirre Barbosa’s petition for review of a decision of the
Board of Immigration Appeals, and held that robbery in the
third degree in violation of Oregon Revised Statutes section
164.395 is not categorically a crime involving moral
turpitude.
In concluding that Petitioner’s robbery conviction under
section 164.395 was not categorically a crime involving
moral turpitude that made him statutorily ineligible for
cancellation of removal, the panel explained that 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. The
panel noted that, under longstanding BIA precedent, a theft
offense was not categorically a crime involving moral
turpitude if the statute criminalized a taking with intent to
deprive an owner of his property only temporarily, but that
the BIA had recently adopted a more expansive standard.
However, the panel explained that, under this court’s
precedent, the new standard did not apply retroactively to
Petitioner’s case.
The panel also held that, although robbery under section
164.395 involves a taking of property and the threatened or
actual use of force, the minimal force required for conviction
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AGUIRRE BARBOSA V. BARR 3
is insufficient to label the offense a crime involving moral
turpitude.
The panel noted that it would ordinarily proceed to
deciding whether the statute is divisible, but the panel deemed
the issue waived because the government did not argue that
section 164.395 is divisible. The panel remanded the matter
to the BIA to consider the merits of Petitioner’s request for
cancellation of removal.
The panel denied the petition as to Petitioner’s
withholding of removal claim, concluding that Petitioner’s
proposed particular social group – individuals returning to
Mexico who are believed to be wealthy – is too broad to
qualify as a particular social group under this court’s
precedent.
Concurring, Judge Berzon wrote separately to join the
chorus of voices calling for renewed consideration as to
whether the phrase “crime involving moral turpitude” is
unconstitutionally vague.
COUNSEL
Nadia H. Dahab (argued), Stoll Stoll Berne Lokting &
Schlachter P.C., Portland, Oregon, for Petitioner.
Imran Raza Zaidi (argued), Trial Attorney; Claire L.
Workman, Senior Litigation Counsel; Keith I. McManus,
Assistant Director; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
4 AGUIRRE BARBOSA V. BARR
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
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
AGUIRRE BARBOSA V. BARR 5
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.
1
Oregon Revised Statutes section 164.135 defines unauthorized use
of a vehicle.
6 AGUIRRE BARBOSA V. BARR
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 (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.
AGUIRRE BARBOSA V. BARR 7
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
8 AGUIRRE BARBOSA V. BARR
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.
AGUIRRE BARBOSA V. BARR 9
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, 348 P.3d 241,
243–44 (Or. Ct. App. 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 received
his notice to appear 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
2
By contrast, permanent deprivation is not a required element when
considering whether a theft offense is an aggravated felony under INA
§ 101(a)(43)(G). Ngaeth v. Mukasey, 545 F.3d 796, 800–01 (9th Cir.
2008) (per curiam).
10 AGUIRRE BARBOSA V. BARR
Robbery includes the additional factor of actual or
threatened violence. State v. Hamilton, 233 P.3d 432, 436
(Or. 2010). But it is clear that a conviction under
section 164.395 requires only minimal physical force. See,
e.g., State v. Johnson, 168 P.3d 312, 314–15 (Or. Ct. App.
2007) (holding that sufficient evidence supported a
conviction under section 164.395 even though the victim only
“felt that she was losing her purse”). “Non-fraudulent CIMTs
almost always involve an intent to harm someone, “ Mtoched
v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015) (internal
quotation marks omitted), or an “intent to injure, actual
injury, or a protected class of victim,” Turijan v. Holder,
744 F.3d 617, 619 (9th Cir. 2014); Castrijon-Garcia,
704 F.3d at 1213. Because section 164.395 requires only
minimal physical force, the statute does not meet the level of
force required to be a CIMT. Therefore, we hold that,
although robbery under section 164.395 involves a taking of
property and the threatened or actual use of force, the
minimal force required for conviction is insufficient to label
the crime a CIMT.
2. Step Two: Divisibility
After determining that section 164.395 is not categorically
a CIMT, we ordinarily proceed to step two, that is, deciding
whether the statute is divisible or indivisible. Almanza-
Arenas, 815 F.3d at 476–77. The government argues that we
should remand this case to the BIA to address the question of
divisibility. We disagree. “We owe no deference to the
decision of the BIA on [divisibility] and there is no reason to
remand for the BIA to decide the issue of divisibility in the
first instance.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th
Cir. 2017).
AGUIRRE BARBOSA V. BARR 11
On the merits of the divisibility inquiry, the government
did not argue to us that section 164.395 is divisible. We
therefore deem the issue waived. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (holding that issues
not raised in the opening brief are waived).
Having held that Petitioner’s conviction is not for a
CIMT, we remand this matter to the BIA to consider on the
merits Petitioner’s request for cancellation of removal.
B. “Particular Social Group” Determination
To secure withholding of removal, a petitioner must
demonstrate that his “life . . . would be threatened in that
country because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). Petitioner argues that the BIA
legally and constitutionally erred, because it did not provide
a reasoned explanation for rejecting his argument that
individuals “returning to Mexico [from] the United States
[who] are believed to be wealthy” constitute a “particular
social group” within the meaning of the INA. Whether a
group constitutes a “particular social group” under the INA
is a question of law that we review de novo. Pirir-Boc v.
Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
The BIA’s decision cited Delgado-Ortiz v. Holder,
600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam), in
which we held that the proposed social group, “‘returning
Mexicans from the United States,’ . . . is too broad to qualify
as a cognizable social group.” And we have clearly held that
“imputed wealthy Americans” are not a discrete class of
persons recognized as a particular social group. Ramirez-
Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). We
12 AGUIRRE BARBOSA V. BARR
conclude that Petitioner’s proposed particular social group,
like the groups in Delgado-Ortiz and Ramirez, is too broad to
qualify as a cognizable “particular social group.”
Accordingly, we deny the petition as to Petitioner’s particular
social group.
Petition GRANTED in part and DENIED in part;
REMANDED with instructions. Costs on appeal awarded
to Petitioner.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion in full. I write separately
to join the chorus of voices calling for renewed consideration
as to whether the phrase “crime involving moral turpitude” is
unconstitutionally vague.
As Judge Fletcher recently noted, “[d]espite many years
of trying, courts and administrators have not been able to
establish coherent criteria” for determining whether an
offense constitutes a crime involving moral turpitude. Islas-
Veloz v. Whitaker, 914 F.3d 1249, 1258 (9th Cir. 2019)
(Fletcher, J., concurring). Earlier, I made a similar
observation myself. See Marmolejo-Campos v. Holder,
558 F.3d 903, 922 (9th Cir. 2009) (en banc) (Berzon, J.,
dissenting) (“[I]t is hard to say that any articulable principle
distinguishes the offenses that are CIMTs from those that are
not.”).
Judge Fletcher and I are not the first to make these
observations, and I am confident that we will not be the last.
See, e.g., Arias v. Lynch, 834 F.3d 823, 830 (7th Cir. 2016)
AGUIRRE BARBOSA V. BARR 13
(Posner, J., concurring) (“It is preposterous that that stale,
antiquated, and, worse, meaningless phrase should continue
to be a part of American law.”); Marciano v. INS, 450 F.2d
1022, 1026 n.1 (8th Cir. 1971) (Eisele, J., dissenting) (“[T]hat
the phrase ‘crime involving moral turpitude’ is
unconstitutionally vague and violates the due process clause
. . . seems manifest by the variety and inconsistency of the
various opinions attempting to deal with the phrase.”); Jordan
v. De George, 341 U.S. 223, 232 (1951) (Jackson, J.,
dissenting) (“[T]he phrase ‘crime involving moral turpitude’
. . . has no sufficiently definite meaning to be a constitutional
standard for deportation.”); see also Jennifer Lee Koh,
Crimmigration and the Void for Vagueness Doctrine,
2016 Wis. L. Rev. 1127, 1177–79; Lindsay M. Kornegay &
Evan Tsen Lee, Why Deporting Immigrants for “Crimes
Involving Moral Turpitude” Is Now Unconstitutional,
13 Duke J. Const. L. & Pub. Pol’y 47, 48–49 (2017).
The Supreme Court has recognized that “the failure of
‘persistent efforts . . . to establish a standard’ can provide
evidence of vagueness.” Johnson v. United States, 135 S. Ct.
2551, 2558 (2015) (quoting United States v. L. Cohen
Grocery Co., 255 U.S. 81, 91 (1921)). This case provides yet
another example. Under longstanding Board of Immigration
Appeals (BIA) precedent, a theft statute does not constitute a
crime involving moral turpitude if the statute criminalizes
temporary takings. See, e.g., Matter of H-, 2 I. & N. Dec. 864,
865 (B.I.A. 1947); see also Almanza-Arenas v. Lynch,
815 F.3d 469, 476 (9th Cir. 2016) (en banc). The primary
opinion holds that, because third-degree robbery under
section 164.395 of the Oregon Revised Statutes covers
temporary takings, it does not constitute a conviction for a
crime involving moral turpitude. But an immigrant who faces
deportation today may well face a different result; in 2016,
14 AGUIRRE BARBOSA V. BARR
the BIA departed from this decades-old interpretation. See
Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 855 (B.I.A.
2016); see also Garcia-Martinez v. Sessions, 886 F.3d 1291,
1296 (9th Cir. 2018).
Recognizing that “‘moral turpitude’ is perhaps the
quintessential example of an ambiguous phrase,” we have
attempted to resolve these cases on a case-by-case basis.
Marmolejo-Campos, 558 F.3d at 909. “Absent consistent or
logical rules to follow as we determine whether a crime . . .
involves moral turpitude, our most useful guidance often
comes from comparing the crime with others that we have
previously deemed morally turpitudinous.” Nunez v. Holder,
594 F.3d 1124, 1131 (9th Cir. 2010). This approach has been,
as Judge Fletcher stated, a “failed enterprise.” Islas-Veloz,
914 F.3d at 1261 (Fletcher, J., concurring). We should instead
recognize that, “[a]bsent consistent or logical rules,” Nunez,
594 F.3d at 1131, the phrase “crime involving moral
turpitude” is unconstitutionally vague.
I recognize that history is not on our side. The term
“crime involving moral turpitude” has persisted in our
immigration law since 1891, and in our common law tradition
for nearly a century longer. See Julia Ann Simon-Kerr, Moral
Turpitude, 2012 Utah L. Rev. 1001, 1010, 1039. Indeed, in
holding in 1951 that the term was not void for vagueness, the
Supreme Court thought it “significant that the phrase has
been part of the immigration laws for more than sixty years.”
De George, 341 U.S. at 229; see also Martinez-de Ryan v.
Whitaker, 909 F.3d 247, 252 (9th Cir. 2018). Committed to
the principle of stare decisis, we judges are loath to upset
long-settled doctrine. As the Supreme Court has recognized,
however, “stare decisis does not matter for its own sake. It
matters because it ‘promotes the evenhanded, predictable, and
AGUIRRE BARBOSA V. BARR 15
consistent development of legal principles.’” Johnson, 135 S.
Ct. at 2563 (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)).
In Johnson, the Court recognized that “[d]ecisions under
the residual clause have proved to be anything but
evenhanded, predictable, or consistent.” Id. The same is true
of our tortured attempts to find logical consistency in the term
“moral turpitude.” Especially given the revitalization of the
void-for-vagueness doctrine in Johnson and Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), the time is ripe for
reconsideration of this issue.