and Submitted March 5, 2019
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
TUNHEIM, CHIEF DISTRICT JUDGE
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.
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.
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.
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.
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
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
(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.
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
(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 ...