Murillo-Chavez v. Bondi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDGAR MURILLO-CHAVEZ, Nos. 21-1422

23-1997

Petitioner,

Agency No.

A097-765-117

v.

PAMELA BONDI, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 22, 2024

Portland, Oregon

Filed February 13, 2025

Before: Evan J. Wallach, Morgan B. Christen, and Andrew

D. Hurwitz, Circuit Judges. *

Opinion by Judge Hurwitz

*

The Honorable Evan J. Wallach, United States Senior Circuit Judge for

the Federal Circuit, sitting by designation.

2 MURILLO-CHAVEZ V. BONDI

SUMMARY **

Immigration

The panel denied Edgar Murillo-Chavez’s petition for

review of a decision of the Board of Immigration Appeals

finding him ineligible for cancellation of removal and his

petition for review of a decision of the BIA denying his

motion to reopen based on a claim of ineffective assistance

of counsel.

An immigration judge determined that Murillo, a lawful

permanent resident (LPR), was removable for a firearms

offense under 8 U.S.C. § 1227(a)(2)(C) due to his conviction

for unlawful possession of a firearm in violation of O.R.S.

§ 166.250. Although the panel concluded that Murillo

waived any challenge to that determination by failing to

exhaust it before the BIA, the panel reached the merits

because Murillo had argued in his motion to reopen that his

counsel’s failure to raise the issue before the BIA was

ineffective assistance. The panel rejected that contention on

the ground that Murillo could not establish prejudice because

the IJ’s determination was correct. The panel explained that,

although O.R.S. § 166.250 is overbroad (some subsections

cover antique firearms, while the federal definition of

“firearm” excludes them), it is divisible, and Murillo was

convicted under a subsection that covers only non-antiques

and thus categorically matches the federal definition.

As to cancellation of removal, Murillo’s eligibility

turned on his convictions for unlawful use of a weapon in

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MURILLO-CHAVEZ V. BONDI 3

violation of O.R.S. § 166.220(1)(a) and first-degree criminal

mistreatment in violation of O.R.S. § 163.205, both of which

the BIA found to be crimes involving moral turpitude

(CIMTs). To be eligible for cancellation, an LPR like

Murillo must establish, among other things, seven years

continuous presence after having been “admitted in any

status,” 8 U.S.C. § 1229b(a)(2). However, the commission

of certain offenses, including CIMTs, stops the accrual of

that presence.

To determine whether Murillo’s offenses cut off that

presence, the panel addressed the threshold issue of when he

was “admitted in any status.” He argued it was when he

obtained special immigrant juvenile (SIJ) status in 2010, and

he claimed that prior counsel was ineffective for not

establishing before the IJ that he committed his use of a

weapon offense more than seven years after gaining that

status. However, the panel concluded that Murillo was not

admitted until he attained LPR status in 2011, applying

Supreme Court and Circuit precedent to conclude that SIJ

status does not confer an “admission.” As a result, the panel

concluded that any error by counsel as to the date of the

offense did not prejudice Murillo, as the actual date was

within seven years of his admission. The panel observed

that Murillo’s criminal mistreatment offense also occurred

within seven years of his admission, and therefore, he could

establish eligibility for cancellation only if neither of those

offenses is a CIMT.

The panel concluded that Murillo’s criminal

mistreatment offense was a CIMT that cut off his physical

presence. Under O.R.S. § 163.205(1)(a), someone commits

criminal mistreatment if the person has a legal duty to

provide care for another (or has assumed care, custody or

responsibility for another), and intentionally or knowingly

4 MURILLO-CHAVEZ V. BONDI

withholds necessary and adequate food, physical care, or

medical attention. Murillo argued that O.R.S.

§ 163.205(1)(a) is not categorically a CIMT because it does

not require a showing of injury to the victim or a specific

intent to do so. Looking to Oregon case law, the panel

concluded that the BIA was correct that all violations of the

statute would cause a significant level of harm to any

victim. The panel also rejected Murillo’s argument that

Oregon courts have applied the statute to non-turpitudinous

conduct. As to Murillo’s argument that it is not a CIMT

because it only requires proof that that the defendant acted

“knowingly,” not with a specific intent to cause harm, the

panel held that knowing conduct is sufficient.

COUNSEL

Rachel Game (argued), Game Immigration Law PC,

Portland, Oregon, for Petitioner.

Craig A. Newell, Jr. (argued), Senior Litigation Counsel,

Criminal Immigration Team, Office of Immigration

Litigation, Civil Division; Lindsay B. Glauner, Senior

Litigation Counsel; Brian M. Boynton, Principal Deputy

Assistant Attorney General, Civil Division; United States

Department of Justice, Washington, D.C., for Respondents.

MURILLO-CHAVEZ V. BONDI 5

OPINION

HURWITZ, Circuit Judge:

A lawful permanent resident (“LPR”) can be removed

if convicted of certain crimes. See 8 U.S.C. § 1227(a)(2).

However, the same LPR may be eligible for cancellation of

removal if not convicted of “a crime involving moral

turpitude” (“CIMT”) within seven years of admission. See

8 U.S.C. § 1182(a)(2)(A)(i)(I); id. § 1229b(a)(2), (d)(1)(B).

The ultimate issue in this case is whether one of the crimes

for which petitioner Edgar Murillo-Chavez was convicted

in Oregon state court in 2018 is a CIMT. We conclude that

Murillo’s conviction under Oregon Revised Statutes

(“O.R.S.”) § 163.205(1)(a) for first-degree criminal

mistreatment is for a CIMT and that he is ineligible for

cancellation of removal under 8 U.S.C. § 1229b(a). We

therefore deny his petitions for review.

I.

Murillo, a native and citizen of Mexico, entered the

United States as a young child without being admitted or

paroled. In 2010, he was granted status as a special

immigrant juvenile (“SIJ”). In 2011, Murillo became an

LPR.

In 2016, Murillo pleaded no contest in Oregon state court

to unlawful possession of a firearm in violation of O.R.S.

§ 166.250. In 2018, he was convicted of two other crimes:

(1) unlawful use of a weapon in violation of O.R.S.

§ 166.220(1)(a), for which he was sentenced to 10 months of

incarceration, and (2) first-degree criminal mistreatment in

violation of O.R.S. § 163.205, for which he was sentenced

6 MURILLO-CHAVEZ V. BONDI

to 31 months.1 The original judgment for the unlawful use

conviction stated that Murillo committed the offense on or

about July 31, 2017. The criminal mistreatment offense

occurred on or about January 10, 2018.

In January 2021, the Department of Homeland Security

served Murillo with a Notice to Appear charging him as

removable under 8 U.S.C. § 1227(a)(2)(C) because of his

2016 conviction for unlawful possession of a weapon.

Murillo was served with a second notice in March 2021,

which charged him as removable under 8 U.S.C.

§ 1227(a)(2)(A)(ii) for conviction of two CIMTs not arising

from a single scheme of criminal misconduct, based on 2018

convictions for unlawful use of a weapon and first-degree

criminal mistreatment.

An Immigration Judge (“IJ”) sustained both charges of

removability, determining that the 2016 conviction qualified

as a firearms offense under § 1227(a)(2)(C) and that the two

2018 convictions qualified as CIMTs under

§ 1227(a)(2)(A)(ii). Murillo then sought cancellation of

removal under 8 U.S.C. § 1229b(a). In opposition, the

government argued that Murillo was ineligible for

cancellation because he had committed a CIMT within seven

years of admission. See 8 U.S.C. § 1229b(a)(2), (d)(1)(B).

The IJ agreed. Assuming arguendo that Murillo was

admitted on August 31, 2010, when he obtained SIJ status,

rather than when he later became an LPR, the IJ held that

Murillo could not establish the requisite seven years of post-

admission continuous residence without commission of a

1

Murillo was also convicted of assault in the third degree in violation of

O.R.S. § 163.165(2)(a), for which he was sentenced to a term of 45

months. This conviction is not at issue in this case.

MURILLO-CHAVEZ V. BONDI 7

CIMT because he committed the unlawful use offense on

July 31, 2017. See 8 U.S.C. § 1229b(a)(2), (d)(1)(B).

Murillo appealed to the BIA, challenging the IJ’s

decision to pretermit his application for cancellation of

removal. The BIA dismissed the appeal, finding that both

Oregon 2018 convictions were CIMTs committed within

seven years of admission. In contrast to the IJ, the BIA

treated Murillo’s date of admission as May 27, 2011, when

he adjusted to LPR status. Murillo timely petitioned for

review.

Murillo then retained new counsel and moved in the BIA

for reopening. His motion argued that former counsel

provided ineffective assistance by, among other things:

(1) failing to notice a discrepancy between the offense dates

given on the original judgment for his unlawful use of a

weapon conviction and a stipulated amended indictment,

which listed the date of the offense as September 1, 2017;

and (2) failing to argue to the BIA that the 2016 unlawful

possession offense was not a deportable firearms offense.

The BIA denied the motion to reopen. Adhering to its

prior determination that Murillo was not admitted until he

became an LPR, the BIA concluded that he could not

demonstrate the requisite seven years of post-admission

continuous residence even if the date of the unlawful use

offense was September 1, 2017. Murillo again timely

petitioned for review, and we consolidated his two petitions.

II.

A.

An LPR is removable if he has committed, at any time

after admission: (1) “[c]ertain firearms offenses,” 8 U.S.C.

8 MURILLO-CHAVEZ V. BONDI

§ 1227(a)(2)(C), 2 or (2) “two or more crimes involving

moral turpitude, not arising out of a single scheme of

criminal misconduct,” 8 U.S.C. § 1227(a)(2)(A)(ii). 3 But,

an LPR ordered removed may be eligible for cancellation of

removal if he has (1) been “lawfully admitted for permanent

residence for not less than 5 years”; (2) “resided in the

United States continuously for 7 years after having been

admitted in any status”; and (3) “not been convicted of any

aggravated felony” during the seven-year period. 8 U.S.C.

§ 1229b(a)(1)–(3). A period of “continuous residence” is

tolled by commission of “an offense referred to in [8 U.S.C.

§] 1182(a)(2) . . . .” 8 U.S.C. § 1229b(d)(1)(B); 4 see Barton

2

8 U.S.C. § 1227(a)(2)(C) provides:

Any alien who at any time after admission is convicted

under any law of purchasing, selling, offering for sale,

exchanging, using, owning, possessing, or carrying, or

of attempting or conspiring to purchase, sell, offer for

sale, exchange, use, own, possess, or carry, any

weapon, part, or accessory which is a firearm or

destructive device (as defined in section 921(a) of

Title 18) in violation of any law is deportable.

3

8 U.S.C. § 1227(a)(2)(A)(ii) provides:

Any alien who at any time after admission is convicted

of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct,

regardless of whether confined therefor and regardless

of whether the convictions were in a single trial, is

deportable.

4

8 U.S.C. § 1229b(d)(1) provides:

For purposes of this section, any period of continuous residence

or continuous physical presence in the United States shall be

deemed to end (A) except in the case of an alien who applies

for cancellation of removal under subsection (b)(2), when the

MURILLO-CHAVEZ V. BONDI 9

v. Barr, 590 U.S. 222, 230–31 (2020). One such offense is

“a crime involving moral turpitude.” 8 U.S.C.

§ 1182(a)(2)(A)(i)(I).

B.

Although we generally lack jurisdiction to review

removal orders based on criminal convictions, 8 U.S.C.

§ 1252(a)(2)(C), we retain jurisdiction to consider

“constitutional claims or questions of law” raised in petitions

for review challenging these orders and related orders

denying motions to reopen removal proceedings, 8 U.S.C.

§ 1252(a)(2)(D); Kucana v. Holder, 558 U.S. 233, 253

(2010). Whether a conviction constitutes a qualifying

firearms offense or a CIMT is a question of law that we

review de novo. See Malilia v. Holder, 632 F.3d 598, 602

(9th Cir. 2011); Mendoza v. Holder, 623 F.3d 1299, 1302

(9th Cir. 2010).

III.

A.

The IJ found Murillo removable for commission of: (1) a

qualifying firearms offense, and (2) two or more CIMTs not

arising out of a single scheme of criminal misconduct.

Murillo attacks both findings in this Court.

The government contends that Murillo waived any

argument that he was removable for having committed a

qualifying firearms offense by failing to raise the issue to the

alien is served a notice to appear under section 1229(a) of this

title, or (B) when the alien has committed an offense referred to

in section 1182(a)(2) of this title that renders the alien

inadmissible to the United States under section 1182(a)(2) of

this title or removable from the United States under section

1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

10 MURILLO-CHAVEZ V. BONDI

BIA. Under 8 U.S.C. § 1252(d)(1), “a noncitizen who seeks

to challenge an order of removal in court must first exhaust

certain administrative remedies.” Santos-Zacaria v.

Garland, 598 U.S. 411, 413 (2023). “Exhaustion requires a

non-constitutional legal claim to the court on appeal to have

first been raised in the administrative proceedings below,

and to have been sufficient to put the BIA on notice of what

was being challenged.” Umana-Escobar v. Garland, 69

F.4th 544, 550 (9th Cir. 2023) (cleaned up). Although the

exhaustion requirement is non-jurisdictional, see Santos-

Zacaria, 598 U.S. at 419, we must apply it when, as here, it

is invoked by the government, see Umana-Escobar, 69 F.4th

at 550.

We agree with the government that Murillo waived any

challenge to the IJ’s firearms-offense removability finding

by failing to raise it in his appeal to the BIA. Indeed,

Murillo’s motion to reopen conceded as much, arguing that

prior counsel’s failure to “include any argument that the

Immigration Judge erred in finding Mr. Murillo Chavez’s

2016 Unlawful Possession of a Weapon was a deportable

firearm offense” constituted ineffective assistance. That is

an accurate characterization of Murillo’s appellate briefing

to the BIA, which challenged only the IJ’s finding of

ineligibility for cancellation of removal and argued that none

of the crimes cited by the IJ was a CIMT.

Given Murillo’s failure to exhaust an argument about the

whether the firearms offense rendered him removable, we

find no error in the removal order. We therefore turn to

Murillo’s argument that the BIA erred in denying the motion

to reopen because he was denied due process by prior

counsel’s ineffective assistance. We review due process

claims based on ineffective assistance of counsel de novo.

MURILLO-CHAVEZ V. BONDI 11

Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir.

2005) (citations omitted).

B.

To establish ineffective assistance, Murillo must show

both that counsel performed incompetently and that he was

thereby prejudiced, meaning that counsel’s performance

“may have affected the outcome of the proceeding.” Id. at

793–94 (cleaned up). We find that Murillo cannot establish

prejudice arising from counsel’s failure to contest the IJ’s

determination that his 2016 conviction for unlawful

possession of a weapon was a removable firearms offense,

because that holding was correct. 5

We review de novo whether a conviction is for a

qualifying firearms offense, see Malilia, 632 F.3d at 602,

applying the categorical approach set forth in Taylor v.

United States, 495 U.S. 575 (1990). See Robles-Urrea v.

Holder, 678 F.3d 702, 707 (9th Cir. 2012). The categorical

approach involves a “two-step framework.” Rivera v.

Lynch, 816 F.3d 1064, 1070 (9th Cir. 2016). First, we

identify the elements of the state statute of conviction.

Coquico v. Lynch, 789 F.3d 1049, 1051 (9th Cir. 2015).

Second, we compare the elements to the generic definition

of the offense and decide “whether the conduct proscribed in

the statute is broader than, and so does not categorically fall

within, this generic definition.” Turijan v. Holder, 744 F.3d

617, 620 (9th Cir. 2014) (citation omitted).

5

We therefore need not address whether Murillo was also removable for

having committed two CIMTs. We address in Section IV.C. below

whether either of the 2018 convictions constituted a CIMT making

Murillo ineligible for cancellation of removal.

12 MURILLO-CHAVEZ V. BONDI

If the conduct proscribed by a state statute of conviction

is facially broader than the federal definition of a removable

offense, we next determine whether the state statute is

“divisible.” See Descamps v. United States, 570 U.S. 254,

261–62 (2013). Divisible statutes “list elements in the

alternative, and thereby define multiple crimes.” Mathis v.

United States, 579 U.S. 500, 505 (2016). If the statute is

divisible, we then apply a “modified” categorical approach,

in which we can review documents like indictments and

convictions to determine the specific crime of conviction.

Id. at 505–06.

Several subsections of O.R.S. § 166.250 prohibit

conduct involving antique firearms. See, e.g., O.R.S.

§ 166.460(2). In contrast, the federal definition of “firearm”

excludes antiques. 18 U.S.C. § 921(a)(3); see Medina-Lara

v. Holder, 771 F.3d 1106, 1115 (9th Cir. 2014). Murillo

therefore correctly argues that O.R.S. § 166.250 is facially

broader than the generic offense in 8 U.S.C. § 1227(a)(2)(C).

We find, however, that O.R.S. § 166.250 prohibits a

disjunctive set of offenses and is therefore divisible. 6 See

6

O.R.S. § 166.250(1) provides that “a person commits the crime of

unlawful possession of a firearm” if he or she knowingly:

(a) Carries any firearm concealed upon the person;

(b) Possesses a handgun that is concealed and readily

accessible to the person within any vehicle; or

(c) Possesses a firearm and:

(A) Is under 18 years of age;

(B)(i) While a minor, was found to be within the

jurisdiction of the juvenile court for having committed

an act which, if committed by an adult, would

constitute a felony or a misdemeanor involving

violence, as defined in ORS 166.470; and

MURILLO-CHAVEZ V. BONDI 13

Mathis, 579 U.S. at 506. This disjunctive nature of the

statute strongly “suggests that the legislature created”

multiple discrete offenses within a single statute. Diego v.

Sessions, 857 F.3d 1005, 1013 (9th Cir. 2017); see also

Mathis, 579 U.S. at 518 (stating “a statute on its face may

resolve” the divisibility issue). Moreover, Oregon state

court decisions and jury instructions treat violations of the

various subsections of § 166.250 as separate crimes. See,

e.g., State v. Clemente-Perez, 359 P.3d 232, 235 (Or. 2015)

(en banc) (conviction under subsection (1)(b)); State v.

Schodrow, 66 P.3d 547, 548 (Or. Ct. App. 2003) (conviction

under subsection (1)(a)); see also Or. Unif. Crim. Jury

Instructions 2407, 2410, 2411 (separate instructions for

subsections (1)(a), (1)(b), and (1)(c)). Divisibility is not

vitiated simply because each subsection carries with it the

(ii) Was discharged from the jurisdiction of the juvenile

court within four years prior to being charged under

this section;

(C) Has been convicted of a felony;

(D) Was committed to the Oregon Health Authority under

ORS 426.130;

(E) Was found to be a person with mental illness and

subject to an order under ORS 426.130 that the person

be prohibited from purchasing or possessing a firearm

as a result of that mental illness;

(F) Is presently subject to an order under ORS 426.133

prohibiting the person from purchasing or possessing

a firearm;

(G) Has been found guilty except for insanity under ORS

161.295 of a felony; or

(H) The possession of the firearm by the person is

prohibited under ORS 166.255; or

(d) Possesses an unfinished frame or receiver and is prohibited

from possessing firearms under paragraph (c) of this

subsection.

14 MURILLO-CHAVEZ V. BONDI

same punishment. See United States v. Jones, 951 F.3d

1138, 1140 (9th Cir. 2020).

Importantly, not all subsections of O.R.S. § 166.250

apply to antique firearms. 7 The relevant state court

documents show that Murillo was convicted under

subsection (1)(b), for possessing a handgun “concealed and

readily accessible to the person within any vehicle.” That

subsection prohibits only the unlawful possession of non-

antiques and thus categorically matches the federal generic

definition. See 8 U.S.C. § 1227(a)(2)(C); 18 U.S.C.

§ 921(a)(3).

Murillo’s conviction under O.R.S. § 166.250(1)(b) is

therefore a qualifying firearms offense making him

removable under 8 U.S.C. § 1227(a)(2)(C). His former

counsel’s failure to raise that issue before the BIA did not

prejudice him and the BIA therefore correctly rejected his

motion to reopen on that ground.

IV.

A.

We next turn to Murillo’s argument that the agency erred

in finding him ineligible for cancellation of removal. To be

eligible, an LPR must have “resided in the United States

continuously for 7 years after having been admitted in any

status.” 8 U.S.C. § 1229b(a)(2). Commission of an offense

listed in 8 U.S.C. § 1182(a)(2), which includes a CIMT, see

8 U.S.C. § 1182(a)(2)(A)(i)(I), stops the accrual of

continuous residence. 8 U.S.C. § 1229b(d)(1)(B); Barton,

7

O.R.S. § 166.460(1)–(2) provides that a person can violate O.R.S.

§ 166.250(1)(c)(B)–(D) and (G) through possession of an antique

firearm, but that O.R.S. § 166.250 does not otherwise apply to antique

firearms.

MURILLO-CHAVEZ V. BONDI 15

590 U.S. at 230–31. The “key date for purposes of

calculating whether the noncitizen committed a § 1182(a)(2)

offense during the initial seven years of residence” is the date

of commission of the offense, rather than the date of

conviction. Barton, 590 U.S. at 232.

A threshold question involves identifying Murillo’s date

of admission. The BIA held that Murillo was “admitted,”

and thus began continuous residence, when he adjusted to

LPR status on May 27, 2011. The IJ noted that the Oregon

unlawful use of a weapon offense was committed on July 31,

2017. Murillo argues that he was “admitted” to the United

States when he obtained SIJ status, on August 31, 2010, as

the IJ assumed, so that offense was outside the seven-year

period. And, he claims that prior counsel was ineffective for

not bringing to the attention of the IJ state court documents

showing that the unlawful use offense was committed on

September 1, 2017, more than seven years after the date he

obtained SIJ status.

We agree with the BIA, however, that Murillo was not

admitted until he attained LPR status. The Immigration and

Nationality Act (“INA”) defines “admission” as “the lawful

entry of the alien into the United States after inspection and

authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13)(A). SIJ status is a form of parole that confers

eligibility for adjustment to LPR status to noncitizen minors

who have been abused, abandoned, or neglected. See 8

U.S.C. § 1101(a)(27)(J)(i); id. § 1255(a), (h)(1); see also

USCIS, Special Immigrant Juveniles,

https://www.uscis.gov/working-in-US/eb4/SIJ (last updated

January 8, 2025). In Garcia v. Holder, we concluded that a

non-citizen was “admitted in any status” under

§ 1229b(a)(2) when granted SIJ status. 659 F.3d 1261, 1263,

1267–71 (9th Cir. 2011). Citing Garcia, Murillo argues that

16 MURILLO-CHAVEZ V. BONDI

the BIA erred in finding he was not admitted until he became

an LPR.

But Garcia is no longer good law. Garcia relied on our

prior opinion in Garcia-Quintero v. Holder, which held that

acceptance into the Family Unity Program, which conferred

protection from deportation and other benefits to qualifying

aliens in order to “help families stay together while the

beneficiaries adjust to LPR status,” conferred a “status” that

rendered aliens “admitted in any status” for purposes of

eligibility for cancellation of removal under § 1229b(a)(2).

455 F.3d 1006, 1009–10, 1118–19 (9th Cir. 2006); see also

Garcia, 659 F.3d at 1269. In Hernandez v. Garland,

however, we held that Sanchez v. Mayorkas, 593 U.S. 409

(2021), “effectively overruled” Garcia-Quintero. 47 F.4th

908, 910 (9th Cir. 2022). In Sanchez, the Supreme Court

held that “temporary protected status” (“TPS”) under 8

U.S.C. § 1254a was not “admission” to the United States

under 8 U.S.C. § 1255. 593 U.S. at 415–16. Using the

definition of “admission” in 8 U.S.C. § 1101(a)(13)(A), the

Supreme Court distinguished “lawful status,” which TPS

confers, see 8 U.S.C. § 1254a(f)(4), from the “lawful entry”

required for admission. See Sanchez, 593 U.S. at 411, 415–

16.

In light of Sanchez, Hernandez rejected the petitioner’s

argument that TPS status constituted admission for purposes

of calculating whether he had established the seven years of

continuous residence needed to be eligible for cancellation

of removal. See 47 F.4th at 912–15. More importantly, we

expressly recognized that “[o]ur precedent judicially

expanding the statutory definition of admission based on the

benefits conferred by a lawful status is clearly irreconcilable

with Sanchez’s holding that lawful status and admission are

distinct concepts in immigration law” and that “what matters

MURILLO-CHAVEZ V. BONDI 17

is what Sanchez held that TPS did not do—confer

admission.” Id. at 914 (cleaned up). We emphasized that

§ 1101(a)(13)(A)’s “definition of admission controls

whether an alien is admitted for purposes of cancellation.”

Id. at 915.

Although Murillo contends that Hernandez was

incorrectly decided, it controls our decision today. Miller v.

Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc)

(holding that a three-judge panel is bound by prior opinions).

We therefore conclude that the BIA correctly found that

Murillo was not admitted within the meaning of 8 U.S.C.

§ 1101(a)(13)(A) when he was granted SIJ parole but instead

when he received LPR status on May 27, 2011. Any error

by prior counsel in not establishing that the unlawful use

offense occurred on September 1, 2017, therefore did not

prejudice Murillo, as that date was within seven years of

admission.

Murillo’s first-degree criminal mistreatment offense,

committed on or about January 10, 2018, also occurred

within seven years of his admission. Murillo can establish

the seven years of continuous residence required for

eligibility for LPR cancellation of removal only if neither of

his 2018 convictions is a CIMT. We therefore must decide

whether either of those two Oregon offenses is a CIMT. We

review de novo the BIA’s finding that a crime is

categorically a CIMT. Ortiz v. Garland, 25 F.4th 1223, 1226

(9th Cir. 2022).

B.

Both the BIA and this Court have long struggled with

deciding whether a particular crime involves moral

turpitude. See, e.g., Navarro-Lopez v. Gonzales, 503 F.3d

1063 (9th Cir. 2007) (en banc); Marmolejo-Campos v.

18 MURILLO-CHAVEZ V. BONDI

Holder, 558 F.3d 903 (9th Cir. 2009) (en banc); Ceron v.

Holder, 747 F.3d 773 (9th Cir. 2014) (en banc); Ortega-

Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016); see also

Marmolejo-Campos, 558 F.3d at 921 (Berzon, J.,

dissenting) (“[T]he BIA’s precedential case law regarding

the meaning of the phrase ‘crime involving moral turpitude’

[] is a mess of conflicting authority.”). This is likely

because, as we have recognized, the phrase “moral

turpitude,” which is not defined in the INA, “is perhaps the

quintessential example of an ambiguous phrase.” Orellana

v. Barr, 967 F.3d 927, 934 (9th Cir. 2020) (citation omitted).

Given the phrase’s ambiguity, we have in the past applied

the deferential standard of Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), to

the BIA’s determination whether a crime was a CIMT.

Under the Chevron rubric, we deferred to precedential BIA

decisions interpreting the term and to non-precedential BIA

decisions relying directly on those precedential decisions if

those decisions were “reasonable,” even if we might have

reached different legal conclusions unburdened by Chevron

deference. See Marmolejo-Campos, 558 F.3d at 911. But,

in 2024, the Supreme Court overruled Chevron, instructing

us to address agency interpretations of the law

independently. Loper Bright Enters. v. Raimondo, 603 U.S.

369, 412–13 (2024).

Loper Bright allows us to continue to “look to agency

interpretations for guidance,” Lopez v. Garland, 116 F.4th

1032, 1036 (9th Cir. 2024), recognizing that the agency’s

“body of experience and informed judgment” may give those

interpretations the “power to persuade,” 603 U.S. at 388,

394, 402 (quoting Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944)). However, they have only that power, and we

“need not and under the APA may not defer to an agency

MURILLO-CHAVEZ V. BONDI 19

interpretation of the law simply because a statute is

ambiguous.” Id. at 413.

We have no precedential decision concerning whether

either of the two Oregon statutes that Murillo was convicted

of violating in 2018 is a CIMT. “When we have not

previously considered whether the offense at issue is a

CIMT, our most useful guidance often comes from

comparing the crime with others that we have previously

deemed morally turpitudinous.” Orellana, 967 F.3d at 936

(internal quotation marks and citation omitted).

At least some of our prior decisions defining crimes as

CIMTs were based on Chevron deference. After Loper

Bright, those “prior cases that relied on the Chevron

framework . . . are still subject to statutory stare decisis

despite our change in interpretive methodology.” 603 U.S.

at 412. Thus, our holdings “that specific agency actions are

lawful” were not overruled by Loper Bright simply because

they relied on Chevron. Id. (emphasis added). But, given

Loper Bright’s clear instruction that we otherwise need no

longer defer to the agency’s interpretation, we take the

Supreme Court to mean that although the holdings of our

prior cases in which Chevron deference was applied remain

precedential until overruled, we are not compelled to use

them as analytical building blocks in every case to

determine whether the BIA correctly found, in the case

before us, that a previously untreated crime is a CIMT.

Rather, although the logic and reasoning in our prior

decisions that relied on Chevron may aid us in determining

whether a crime we have not previously confronted is a

CIMT, just as we may be persuaded by the agency’s

analysis in the case before us, in the end we must exercise

our “independent judgment,” see id., in deciding the present

case. We therefore turn to that task.

20 MURILLO-CHAVEZ V. BONDI

C.

A state crime of conviction is a CIMT “only if the full

range of conduct encompassed by the statute, including the

least egregious conduct” is a CIMT. Flores-Vasquez v.

Garland, 80 F.4th 921, 925 (9th Cir. 2023) (cleaned up).

The government asserts that application of the modified

categorical approach establishes that O.R.S. § 163.205, the

criminal mistreatment statute, is divisible; that Murillo was

convicted under subsection (1)(a); and that his conviction

under subsection (1)(a) is for a CIMT. O.R.S.

§ 163.205(1)(a) provides that someone commits criminal

mistreatment in the first degree if:

The person, in violation of a legal duty to

provide care for another person, or having

assumed the permanent or temporary care,

custody or responsibility for the supervision

of another person, intentionally or knowingly

withholds necessary and adequate food,

physical care or medical attention from that

other person[.]

Murillo does not contest that the statute is divisible or that

he was convicted under subsection (1)(a), but argues that the

conduct prohibited by that subsection is broader than the

generic definition of a CIMT.

Even before Loper Bright, we recognized that Chevron

deference to the BIA’s general definition of a CIMT often

“has no practical significance” because the agency definition

did not “particularize the term in any meaningful way.”

Marmolejo-Campos, 558 F.3d at 910 (internal quotation

marks and citation omitted). Accordingly, we typically

“relied on our own generalized definition” of the term, id.,

MURILLO-CHAVEZ V. BONDI 21

when Chevron deference did not apply. We begin our

analysis today accordingly.

We have “traditionally divided” CIMTs into two types,

defining them as “involving either fraud or base, vile, and

depraved conduct that shocks the public conscience.” Ortiz,

25 F.4th at 1227 (cleaned up). The fraud prong of the

definition does not apply here. And, although there is no

litmus test about whether a particular crime is “base, vile,

and depraved,” see, e.g., Navarro-Lopez, 503 F.3d at 1075

(Reinhardt, J., concurring), we have stressed that “[n]on-

fraudulent CIMTs will almost always involve an intent to

injure someone, an actual injury, or a protected class of

victims,” Turijan, 744 F.3d at 621 (citation omitted). 8

Murillo argues that first-degree criminal mistreatment in

violation of O.R.S. § 163.205(1)(a) is not categorically a

CIMT because it does not require a showing of injury to the

victim or a specific intent to do so. We disagree.

Interpreting the phrase “necessary and adequate,” Oregon

courts have stated that O.R.S. § 163.205 applies to

defendants who “fail to provide for a dependent’s most basic

needs . . . for safety and survival.” State v. Hickey, 373 P.3d

1246, 1250 (Or. Ct. App. 2016) (quoting State v. Drown, 263

P.3d 1057, 1066 (Or. Ct. App. 2011)). The Oregon courts

accordingly have stated that its legislature intended

§ 163.205 to cover “cruel deprivations” and the withholding

8

Judges Berzon and Fletcher have argued that the phrase “crime

involving moral turpitude” is unconstitutionally vague. See, e.g., Islas-

Veloz v. Whitaker, 914 F.3d 1249, 1251 (9th Cir. 2019) (Fletcher, J.,

concurring); Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th Cir. 2019)

(Berzon, J., concurring). As a three-judge panel, however, we are

bound by our decision in Martinez-de Ryan v. Whitaker, 909 F.3d 247,

252 (9th Cir. 2018), to the contrary. See also Islas-Veloz, 914 F.3d at

1250–51 (same).

22 MURILLO-CHAVEZ V. BONDI

of “absolutely required” care, Drown, 263 P.3d at 1066, and

to apply when the defendant’s acts created a “substantial

risk” of “serious harm,” State v. Burciaga, 328 P.3d 782, 787

(Or. Ct. App. 2014). The statute does not criminalize

garden-variety negligence or the mere failure to be

“exemplary parents.” State v. Baker-Krofft, 239 P.3d 226,

232 (Or. 2010) (en banc); compare Burciaga, 328 P.3d at

782–83 (affirming conviction where defendant left her

children in the care of an abusive boyfriend, and one child

died), with Hickey, 373 P.3d at 1251–52 (reversing

conviction where defendant failed to timely change child’s

diaper). The BIA therefore correctly concluded that “all

violations of the statute would cause a significant level of

harm to any victim of criminal mistreatment.”

Citing Drown, Murillo argues that Oregon courts have

applied O.R.S. § 163.205(1)(a) to non-turpitudinous

conduct. In that case, the Oregon Court of Appeals affirmed

the O.R.S. § 163.205(1)(a) conviction of a defendant who

knowingly failed to seek vision care for her “legally blind”

child. 263 P.3d at 1059. Testimony established that the

child “could not see to read,” and “it was obvious that [he]

needed glasses.” Id.

We find Murillo’s argument unpersuasive. The conduct

in Drown—knowingly depriving a blind dependent minor of

the opportunity to see the world around him—plainly

“violates accepted moral standards.” Maie v. Garland,

7 F.4th 841, 847 (9th Cir. 2021) (cleaned up). It is one thing

for a person to not realize that a dependent needs care, or to

negligently fail to address a known need. It is quite another

to knowingly or intentionally abandon a duty to provide for

a blind dependent’s basic health and safety.

MURILLO-CHAVEZ V. BONDI 23

Murillo also argues that an O.R.S. § 163.205(1)(a)

conviction is not a CIMT because it only requires proof that

that the defendant acted “knowingly,” not with a specific

intent to cause harm. But specific intent to cause harm “is

not required for a crime to involve moral turpitude.” United

States v. Santacruz, 563 F.3d 894, 897 (9th Cir. 2009) (per

curiam). Because Oregon first-degree criminal mistreatment

requires at least knowing conduct, we conclude that it is a

CIMT. 9

V.

We hold that first-degree criminal mistreatment in

violation of O.R.S. § 163.205(1)(a) is a crime involving

moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I).

Because Murillo committed this offense within seven years

of being “admitted in any status” to the United States, he is

ineligible for cancellation of removal under 8 U.S.C.

§ 1229b(a).

PETITIONS FOR REVIEW DENIED.

9

Because 8 U.S.C. § 1229b(d)(1)(B) disqualifies an applicant who has

committed a single CIMT from eligibility for cancellation of removal,

we need not address whether Murillo’s Oregon conviction for unlawful

use of a weapon also constitutes a CIMT.