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Flores-Vega v. Barr

United States Court of Appeals, Ninth Circuit

August 2, 2019

David Flores-Vega, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted May 16, 2019 Seattle, Washington

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A096-106-096

          Randy J. Tanner (argued) and Matthew B. Hayhurst, Boone Karlberg PC, Missoula, Montana, for Petitioner.

          Matthew J. Glover (argued) and David H. Wetmore, 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: Michael Daly Hawkins and William A. Fletcher, Circuit Judges, and Richard Seeborg, [*] District Judge.

         SUMMARY[**]

         Immigration

         Denying David Flores-Vega's petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) Flores-Vega's conviction under Oregon Revised Statute § 163.187(1) for "strangulation" was categorically a crime of violence aggravated felony that made him removable and ineligible for asylum; 2) the BIA abused its discretion in concluding that the conviction was a particularly serious crime that made Flores-Vega ineligible for withholding of removal; and 3) the BIA's denial of withholding of removal and relief under the Convention Against Torture ("CAT") was supported by substantial evidence.

         Under 8 U.S.C. § 1101(a)(43)(F), "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year," constitutes an aggravated felony. Applying the categorical approach, the panel concluded that strangulation, as defined at O.R.S. § 163.187(1), is a crime of violence within the meaning of 18 U.S.C. § 16(a), which covers "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." In so concluding, the panel explained that Flores-Vega had not established a realistic probability that Oregon would apply its statute to conduct falling outside the scope of § 16(a). Accordingly, the panel concluded that Flores-Vega's conviction was an aggravated felony that made him removable and ineligible for asylum.

         The panel concluded that the BIA abused its discretion in concluding that Flores-Vega's conviction was also a particularly serious crime that made him ineligible for withholding of removal. The panel explained that where, as here, a withholding applicant was sentenced to fewer than five years imprisonment for an aggravated felony conviction, the BIA may determine that the conviction qualifies as a particularly serious crime. The applicable legal standard is based on a list of factors the BIA set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). The panel concluded that the BIA misapplied the Frentescu factors in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the agency to examine the type of sentence imposed.

         Nonetheless, the panel found no error in the BIA's alternate ground that Flores-Vega failed to carry his burden of showing eligibility for withholding of removal. First, the panel rejected the government's contention that the court lacked jurisdiction to review the merits of Flores-Vega's withholding claim. Under 8 U.S.C. § 1252(a)(2)(C), the court lacks jurisdiction to review any final order against an alien who is removable for having committed an aggravated felony. However, the panel explained that, under this court's precedent, that provision applies only to removal orders, and not to applications for asylum and related relief. Where, as here, the BIA denies relief on the merits, rather than based on a conviction, the court retains jurisdiction to review the merits.

         Next, the panel concluded that substantial evidence supported the denial of withholding, concluding that Flores-Vega failed to establish a clear probability of future persecution based on a protected ground. The panel acknowledged testimony from Flores-Vega and witnesses on his behalf that he would be targeted because people in Mexico would know he came from the United States and would assume his family had money for a ransom, as well as testimony about general conditions of violence related to gangs and an ongoing land dispute in his hometown. However, the panel concluded that there was no evidence in the record that the danger he may face had the required nexus to a protected ground.

         Finally, the panel concluded that the BIA's denial of Flores-Vega's application for protection under CAT is also supported by substantial evidence, concluding that he had not shown that he is more likely than not to be tortured in Mexico with the consent or acquiescence of a public official.

          OPINION

          W. FLETCHER, CIRCUIT JUDGE:

         We are asked to decide whether a conviction under Oregon Revised Statute § 163.187(1) for "strangulation" is categorically a crime of violence for purposes of removability under the Immigration and Nationality Act ("INA"). We have jurisdiction pursuant to 8 U.S.C. § 1252 and conclude that it is. Because the petitioner is removable and is unable to show he is otherwise entitled to immigration relief, we deny his petition for review of the decision of the Board of Immigration Appeals ("BIA").

         I. Background

         David Flores-Vega is a native and citizen of Mexico. He entered the United States in June 2002 when he was sixteen years old and adjusted his status to lawful permanent resident on November 26, 2003.

         In September 2009, Flores-Vega pleaded guilty to violating O.R.S. § 163.187(1), which reads:

(1) A person commits the crime of strangulation if the person knowingly impedes the normal breathing or circulation of the blood of another person by:
(a) Applying pressure on the throat, neck or chest of the other person; or
(b) Blocking the nose or mouth of the other person.

         The information in Flores-Vega's case reads: "The defendant, on or about September 12, 2009, in Marion County, Oregon, did unlawfully and knowingly impede the normal breathing of [the victim] by applying pressure on the throat and neck of [the victim]." On September 21, 2009, Flores-Vega signed a "Petition to Enter Plea." On the form, in the blank following the printed words "The factual basis for my guilt and my plea:," the words "as alleged" are written by hand. The court accepted the plea on September 25, ...


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