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Lopez-Aguilar v. Barr

United States Court of Appeals, Ninth Circuit

April 23, 2019

Ludwin Israel Lopez-Aguilar, Petitioner,
v.
William P. Barr, Attorney General of the United States, Respondent.

          Argued and Submitted March 5, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A074 394 680

          Jennifer K. Lesmez (argued), Law Offices of Jennifer Lesmez, Allyn, Washington, for Petitioner.

          Imran Raza Zaidi (argued) and Matthew A. Spurlock, Trial Attorneys; John S. Hogan, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.

         SUMMARY [**]

         Immigration

         Denying Ludwin Israel Lopez-Aguilar's petition for review of a decision of the Board of Immigration Appeals, the panel held that third-degree robbery under Oregon Revised Statutes § 164.395 is a categorical theft offense and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), and the panel concluded that the record supported the denial of deferral of removal under the Convention Against Torture.

         The BIA concluded that Lopez-Aguilar was removable for an aggravated felony theft offense based on his conviction for third-degree robbery under Oregon Revised Statutes § 164.395.

         The panel explained that, in the context of aggravated felonies, a generic theft offense 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.

         Lopez-Aguilar contended 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.

         The panel concluded that section 164.395 theoretically could cover a consensual taking due to its incorporation of theft by deception, explaining that the statute does not require that force be used or threatened against the owner of the property. The panel observed that, for example, the statute could theoretically apply to a situation where a person obtained property from its owner, by deception, and then used force against a third party. However, the panel concluded that there is no realistic probability that Oregon would prosecute such conduct under the statute.

         The panel also concluded that the incorporation of unauthorized use of a vehicle under Oregon Revised Statutes § 164.135(1)(b)-(c) into section 164.395 does not make the statute overbroad. Lopez-Aguilar contended that Oregon's unauthorized use of a vehicle statute criminalizes the use of a vehicle even where the vehicle has been temporarily and consensually placed in the defendant's care. However, emphasizing that the generic definition includes a taking where the deprivation is less than total or permanent, the panel concluded that none of the conduct covered by Oregon's unauthorized use of a vehicle statute falls outside of the generic theft offense definition.

         Finally, the panel concluded that substantial evidence supported the denial of CAT relief, explaining that the record did not compel a finding that Lopez-Aguilar will more likely than not face torture by his father or gang members.

         Dissenting, Judge Berzon disagreed with the majority's conclusion that Lopez-Aguilar was required to establish a realistic probability that the statute would be applied in a nongeneric manner. Judge Berzon wrote that, under the circuit's case law, Lopez-Aguilar was not required to establish such a realistic probability because section 164.395's text is on its face broader than a generic theft offense under the Immigration and Nationality Act. Judge Berzon also wrote that, even if Lopez-Aguilar were required to make that showing, Oregon case law demonstrates that section 164.395 realistically applies to conduct falling outside generic theft.

         Therefore, Judge Berzon would hold that section 164.395 is not categorically a generic theft offense, deem the issue of divisibility waived by the government, and grant the petition for review.

          OPINION

          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 ...

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