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, ...