Pedro Aguirre Barbosa v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO AGUIRRE BARBOSA, No. 15-72092

Petitioner,

Agency No.

v. A095-808-775

WILLIAM P. BARR, Attorney ORDER AND

General, AMENDED

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 5, 2019

Portland, Oregon

Filed March 28, 2019

Amended June 6, 2019

Before: Susan P. Graber and Marsha S. Berzon, Circuit

Judges, and John R. Tunheim,* Chief District Judge.

Order;

Opinion by Judge Graber;

Concurrence by Judge Berzon

*

The Honorable John R. Tunheim, Chief United States District Judge

for the District of Minnesota, sitting by designation.

2 AGUIRRE BARBOSA V. BARR

SUMMARY**

Immigration

The panel filed: (1) an order denying Respondent’s

motion to depublish and granting the motion to amend the

opinion filed on March 28, 2019, and appearing at 919 F.3d

1169; and (2) an amended opinion.

In the amended opinion, the panel granted in part and

denied in part Pedro Aguirre Barbosa’s petition for review of

a decision of the Board of Immigration Appeals, and held that

robbery in the third degree in violation of Oregon Revised

Statutes section 164.395 is not categorically a crime

involving moral turpitude.

In concluding that Petitioner’s robbery conviction under

section 164.395 was not categorically a crime involving

moral turpitude that made him statutorily ineligible for

cancellation of removal, the panel explained that section

164.395 encompasses the unauthorized use of a vehicle,

which does not include as an essential element an intent to

deprive the owner of his or her property permanently. The

panel noted that, under longstanding BIA precedent, a theft

offense was not categorically a crime involving moral

turpitude if the statute criminalized a taking with intent to

deprive an owner of his property only temporarily, but that

the BIA had recently adopted a more expansive standard.

However, the panel explained that the new standard did not

apply retroactively to Petitioner’s case because he pleaded no

**

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

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

AGUIRRE BARBOSA V. BARR 3

contest to the relevant charges before the BIA changed its

interpretation.

The panel also held that, although robbery under section

164.395 involves a taking of property and the threatened or

actual use of force, the minimal force required for conviction

is insufficient to label the offense a crime involving moral

turpitude.

The panel noted that it would ordinarily proceed to

deciding whether the statute is divisible, but the panel deemed

the issue waived because the government did not argue that

section 164.395 is divisible. The panel remanded the matter

to the BIA to consider the merits of Petitioner’s request for

cancellation of removal.

The panel denied the petition as to Petitioner’s

withholding of removal claim, concluding that Petitioner’s

proposed particular social group – individuals returning to

Mexico who are believed to be wealthy – is too broad to

qualify as a particular social group under this court’s

precedent.

Concurring, Judge Berzon wrote separately to join the

chorus of voices calling for renewed consideration as to

whether the phrase “crime involving moral turpitude” is

unconstitutionally vague.

4 AGUIRRE BARBOSA V. BARR

COUNSEL

Nadia H. Dahab (argued), Stoll Stoll Berne Lokting &

Schlachter P.C., Portland, Oregon, for Petitioner.

Imran Raza Zaidi (argued), Trial Attorney; Claire L.

Workman, Senior Litigation Counsel; John W. Blakeley,

Assistant Director; Joseph H. Hunt, Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

ORDER

Respondent’s motion to depublish is DENIED, and the

motion to amend the opinion is GRANTED. The opinion

filed on March 28, 2019, and appearing at 919 F.3d 1169, is

amended by the opinion filed concurrently with this order as

follows:

On slip opinion page 9, second paragraph, lines 4–6, the

sentence beginning with “Because Petitioner” is amended to

read as follows: “Because Petitioner pleaded no contest to

the relevant charge before the BIA changed its interpretation,

the new standard does not apply retroactively to his case.”

No further petitions for panel rehearing or rehearing en

banc will be entertained.

AGUIRRE BARBOSA V. BARR 5

OPINION

GRABER, Circuit Judge:

Petitioner Pedro Aguirre Barbosa, a Mexican citizen, was

convicted of robbery in the third degree in violation of

Oregon Revised Statutes section 164.395. An immigration

judge (“IJ”) denied relief from removal, and the Board of

Immigration Appeals (“BIA”) dismissed Petitioner’s appeal.

As relevant here, the BIA held that section 164.395

categorically constitutes a crime involving moral turpitude

(“CIMT”) and that Petitioner had failed to prove membership

in a “particular social group” for the purpose of establishing

refugee status.

We hold that section 164.395 is not categorically a CIMT,

but we agree that Petitioner did not demonstrate membership

in a “particular social group.” Accordingly, we grant the

petition for review in part, deny it in part, and remand to the

BIA for further proceedings consistent with this decision.

Sometime between 1997 and 1999, Petitioner entered the

United States. In 2008, he was charged with, and pleaded no

contest to, a violation of Oregon Revised Statutes

section 164.395, which 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[1] the person uses or threatens

1

Oregon Revised Statutes section 164.135 defines unauthorized use

of a vehicle.

6 AGUIRRE BARBOSA V. BARR

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.

In 2010, the government served Petitioner with a notice to

appear. Petitioner conceded removability and applied for

cancellation of removal, withholding of removal, and other

forms of relief.

An IJ denied all of Petitioner’s claims. The BIA affirmed

the IJ’s decision. The BIA held, among other things, that

section 164.395 constitutes a categorical CIMT and that

Petitioner is therefore statutorily ineligible for cancellation of

removal under 8 U.S.C. § 1229b. Additionally, the BIA held

that Petitioner failed to establish membership in a “particular

social group,” so he was not entitled to withholding of

removal under 8 U.S.C. § 1231(b)(3)(A). Petitioner then

filed this timely petition for review.

AGUIRRE BARBOSA V. BARR 7

A. Section 164.395 and Crimes Involving Moral

Turpitude

To determine whether section 164.395 is a CIMT, we

follow the three-step process mandated by Descamps v.

United States, 570 U.S. 254 (2013):

At the first step, we compare the elements of

the state offense to the elements of the generic

offense defined by federal law. If this

“categorical approach” reveals that the

elements of the state crime are the same as or

narrower than the elements of the federal

offense, then the state crime is a categorical

match and every conviction under that statute

qualifies as [a CIMT]. When a statute is

“overbroad,” meaning that it criminalizes

conduct that goes beyond the elements of the

federal offense, we turn to step two:

determining whether the statute is “divisible”

or “indivisible.” If the statute is indivisible,

“our inquiry ends, because a conviction under

an indivisible, overbroad statute can never

serve as a predicate offense.” Only when a

statute is overbroad and divisible do we turn

to step three—the “modified categorical

approach.” At this step, we may examine

certain documents from the defendant’s

record of conviction to determine what

elements of the divisible statute he was

convicted of violating.

8 AGUIRRE BARBOSA V. BARR

Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016)

(en banc) (quoting Lopez-Valencia v. Lynch, 798 F.3d 863,

867–68 (9th Cir. 2015)).

1. Step One: Categorical Approach

To determine whether a state criminal statute is

categorically a CIMT, we use a two-step process. Castrijon-

Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013). First,

we “identify the elements of the statute of conviction.” Id.

Because “the BIA has no special expertise by virtue of its

statutory responsibilities in construing state or federal

criminal statutes,” we review this step de novo. Id. (internal

quotation marks and brackets omitted). Second, we “compare

the elements of the statute of conviction to the generic

definition of a [CIMT] and decide whether the conviction

meets that definition.” Id. “The BIA’s conclusion that a

particular crime does or does not involve moral turpitude is

subject to different standards of review depending on whether

the BIA issues or relies on a published decision in coming to

its conclusion.” Nunez v. Holder, 594 F.3d 1124, 1129 (9th

Cir. 2010). Here, the BIA neither issued nor relied on its own

published decision. Therefore, “we defer to its conclusion to

the extent that it has the ‘power to persuade.’” Id. (quoting

Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.

2009) (en banc)).

The question at this step is “not whether some of the

conduct prohibited by the statute is morally turpitudinous, but

rather whether all of the conduct prohibited by the statute is

morally turpitudinous.” Morales-Garcia v. Holder, 567 F.3d

1058, 1062 (9th Cir. 2009) (internal quotation marks and

brackets omitted). The Immigration and Nationality Act

(“INA”) does not define the term “moral turpitude” or detail

AGUIRRE BARBOSA V. BARR 9

particular crimes involving moral turpitude. Mendoza v.

Holder, 623 F.3d 1299, 1302 (9th Cir. 2010). We have noted

that “‘moral turpitude’ is perhaps the quintessential example

of an ambiguous phrase.” Marmolejo-Campos, 558 F.3d

at 909. Despite that ambiguity, there is agreement that

“moral turpitude” generally inheres in offenses involving

fraud or those that are inherently “base, vile, or depraved—if

they offend society’s most fundamental values, or shock

society’s conscience.” Mendoza, 623 F.3d at 1302; see, e.g.,

In re Flores, 17 I. & N. Dec. 225, 227–28 (B.I.A. 1980).

“These two categories, however, are not exhaustive.” Rivera

v. Lynch, 816 F.3d 1064, 1074 (9th Cir. 2016) (providing

common law perjury as an example of a CIMT that “does not

fit neatly into the two-part framework”).

“Absent consistent or logical rules to follow as we

determine whether a crime (other than one involving fraud)

involves moral turpitude, our most useful guidance often

comes from comparing the crime with others that we have

previously deemed morally turpitudinous.” Nunez, 594 F.3d

at 1131. When analyzing robbery offenses, we have

compared robbery offenses to theft offenses, many of which

involve moral turpitude. See Mendoza, 623 F.3d at 1303–04

(“The BIA’s determination that robbery is a CIMT is also a

logical outgrowth of its holding that theft offenses are

CIMTs.”). Here, the BIA held that section 164.395

“describes an offense that is committed by a defendant who

employs the use or threatened use of physical force with the

intent to commit the theft or unauthorized use of a vehicle.”

The decision cites Mendoza, 623 F.3d at 1303–04, which

analogized robbery to theft and applied that comparison to

hold that California’s robbery statute is categorically a CIMT.

10 AGUIRRE BARBOSA V. BARR

But Oregon Revised Statutes section 164.395 is materially

broader than the California robbery statute at issue in

Mendoza. Specifically, section 164.395 encompasses the

unauthorized use of a vehicle, which does not include as an

essential element an intent to deprive the owner of his or her

property permanently. See State v. Pusztai, 348 P.3d 241,

243–44 (Or. Ct. App. 2015) (holding that unauthorized use of

a vehicle under section 164.135 requires knowing use of the

vehicle but does not require an intent to deprive the owner of

the vehicle permanently). Under longstanding BIA

precedent, “a theft offense [was] not categorically a crime of

moral turpitude if the statute of conviction is broad enough to

criminalize a taking with intent to deprive the owner of his

property only temporarily.” Almanza-Arenas, 815 F.3d

at 476 (quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1159

(9th Cir. 2009)).

We recognize that the BIA recently adopted a more

expansive standard for determining whether a theft offense

constitutes a CIMT. See In re Diaz-Lizarraga, 26 I. & N.

Dec. 847, 854–55 (B.I.A. 2016). Because Petitioner pleaded

no contest to the relevant charge before the BIA changed its

interpretation, the new standard does not apply retroactively

to his case. See Garcia-Martinez v. Sessions, 886 F.3d 1291,

1296 (9th Cir. 2018). Accordingly, under the theft

framework for a CIMT applicable to Petitioner, section

164.395 is not a categorical CIMT.2

2

By contrast, permanent deprivation is not a required element when

considering whether a theft offense is an aggravated felony under INA

§ 101(a)(43)(G). Ngaeth v. Mukasey, 545 F.3d 796, 800–01 (9th Cir.

2008) (per curiam).

AGUIRRE BARBOSA V. BARR 11

Robbery includes the additional factor of actual or

threatened violence. State v. Hamilton, 233 P.3d 432, 436

(Or. 2010). But it is clear that a conviction under

section 164.395 requires only minimal physical force. See,

e.g., State v. Johnson, 168 P.3d 312, 314–15 (Or. Ct. App.

2007) (holding that sufficient evidence supported a

conviction under section 164.395 even though the victim only

“felt that she was losing her purse”). “Non-fraudulent CIMTs

almost always involve an intent to harm someone, “ Mtoched

v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015) (internal

quotation marks omitted), or an “intent to injure, actual

injury, or a protected class of victim,” Turijan v. Holder,

744 F.3d 617, 619 (9th Cir. 2014); Castrijon-Garcia,

704 F.3d at 1213. Because section 164.395 requires only

minimal physical force, the statute does not meet the level of

force required to be a CIMT. Therefore, we hold that,

although robbery under section 164.395 involves a taking of

property and the threatened or actual use of force, the

minimal force required for conviction is insufficient to label

the crime a CIMT.

2. Step Two: Divisibility

After determining that section 164.395 is not categorically

a CIMT, we ordinarily proceed to step two, that is, deciding

whether the statute is divisible or indivisible. Almanza-

Arenas, 815 F.3d at 476–77. The government argues that we

should remand this case to the BIA to address the question of

divisibility. We disagree. “We owe no deference to the

decision of the BIA on [divisibility] and there is no reason to

remand for the BIA to decide the issue of divisibility in the

first instance.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th

Cir. 2017).

12 AGUIRRE BARBOSA V. BARR

On the merits of the divisibility inquiry, the government

did not argue to us that section 164.395 is divisible. We

therefore deem the issue waived. See Rizk v. Holder,

629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (holding that issues

not raised in the opening brief are waived).

Having held that Petitioner’s conviction is not for a

CIMT, we remand this matter to the BIA to consider on the

merits Petitioner’s request for cancellation of removal.

B. “Particular Social Group” Determination

To secure withholding of removal, a petitioner must

demonstrate that his “life . . . would be threatened in that

country because of [his] race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A). Petitioner argues that the BIA

legally and constitutionally erred, because it did not provide

a reasoned explanation for rejecting his argument that

individuals “returning to Mexico [from] the United States

[who] are believed to be wealthy” constitute a “particular

social group” within the meaning of the INA. Whether a

group constitutes a “particular social group” under the INA

is a question of law that we review de novo. Pirir-Boc v.

Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).

The BIA’s decision cited Delgado-Ortiz v. Holder,

600 F.3d 1148, 1151–52 (9th Cir. 2010) (per curiam), in

which we held that the proposed social group, “‘returning

Mexicans from the United States,’ . . . is too broad to qualify

as a cognizable social group.” And we have clearly held that

“imputed wealthy Americans” are not a discrete class of

persons recognized as a particular social group. Ramirez-

Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). We

AGUIRRE BARBOSA V. BARR 13

conclude that Petitioner’s proposed particular social group,

like the groups in Delgado-Ortiz and Ramirez, is too broad to

qualify as a cognizable “particular social group.”

Accordingly, we deny the petition as to Petitioner’s particular

social group.

Petition GRANTED in part and DENIED in part;

REMANDED with instructions. Costs on appeal awarded

to Petitioner.

BERZON, Circuit Judge, concurring:

I concur in the majority opinion in full. I write separately

to join the chorus of voices calling for renewed consideration

as to whether the phrase “crime involving moral turpitude” is

unconstitutionally vague.

As Judge Fletcher recently noted, “[d]espite many years

of trying, courts and administrators have not been able to

establish coherent criteria” for determining whether an

offense constitutes a crime involving moral turpitude. Islas-

Veloz v. Whitaker, 914 F.3d 1249, 1258 (9th Cir. 2019)

(Fletcher, J., concurring). Earlier, I made a similar

observation myself. See Marmolejo-Campos v. Holder,

558 F.3d 903, 922 (9th Cir. 2009) (en banc) (Berzon, J.,

dissenting) (“[I]t is hard to say that any articulable principle

distinguishes the offenses that are CIMTs from those that are

not.”).

Judge Fletcher and I are not the first to make these

observations, and I am confident that we will not be the last.

See, e.g., Arias v. Lynch, 834 F.3d 823, 830 (7th Cir. 2016)

14 AGUIRRE BARBOSA V. BARR

(Posner, J., concurring) (“It is preposterous that that stale,

antiquated, and, worse, meaningless phrase should continue

to be a part of American law.”); Marciano v. INS, 450 F.2d

1022, 1026 n.1 (8th Cir. 1971) (Eisele, J., dissenting) (“[T]hat

the phrase ‘crime involving moral turpitude’ is

unconstitutionally vague and violates the due process clause

. . . seems manifest by the variety and inconsistency of the

various opinions attempting to deal with the phrase.”); Jordan

v. De George, 341 U.S. 223, 232 (1951) (Jackson, J.,

dissenting) (“[T]he phrase ‘crime involving moral turpitude’

. . . has no sufficiently definite meaning to be a constitutional

standard for deportation.”); see also Jennifer Lee Koh,

Crimmigration and the Void for Vagueness Doctrine,

2016 Wis. L. Rev. 1127, 1177–79; Lindsay M. Kornegay &

Evan Tsen Lee, Why Deporting Immigrants for “Crimes

Involving Moral Turpitude” Is Now Unconstitutional,

13 Duke J. Const. L. & Pub. Pol’y 47, 48–49 (2017).

The Supreme Court has recognized that “the failure of

‘persistent efforts . . . to establish a standard’ can provide

evidence of vagueness.” Johnson v. United States, 135 S. Ct.

2551, 2558 (2015) (quoting United States v. L. Cohen

Grocery Co., 255 U.S. 81, 91 (1921)). This case provides yet

another example. Under longstanding Board of Immigration

Appeals (BIA) precedent, a theft statute does not constitute a

crime involving moral turpitude if the statute criminalizes

temporary takings. See, e.g., Matter of H-, 2 I. & N. Dec. 864,

865 (B.I.A. 1947); see also Almanza-Arenas v. Lynch,

815 F.3d 469, 476 (9th Cir. 2016) (en banc). The primary

opinion holds that, because third-degree robbery under

section 164.395 of the Oregon Revised Statutes covers

temporary takings, it does not constitute a conviction for a

crime involving moral turpitude. But an immigrant who faces

deportation today may well face a different result; in 2016,

AGUIRRE BARBOSA V. BARR 15

the BIA departed from this decades-old interpretation. See

Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847, 855 (B.I.A.

2016); see also Garcia-Martinez v. Sessions, 886 F.3d 1291,

1296 (9th Cir. 2018).

Recognizing that “‘moral turpitude’ is perhaps the

quintessential example of an ambiguous phrase,” we have

attempted to resolve these cases on a case-by-case basis.

Marmolejo-Campos, 558 F.3d at 909. “Absent consistent or

logical rules to follow as we determine whether a crime . . .

involves moral turpitude, our most useful guidance often

comes from comparing the crime with others that we have

previously deemed morally turpitudinous.” Nunez v. Holder,

594 F.3d 1124, 1131 (9th Cir. 2010). This approach has been,

as Judge Fletcher stated, a “failed enterprise.” Islas-Veloz,

914 F.3d at 1261 (Fletcher, J., concurring). We should instead

recognize that, “[a]bsent consistent or logical rules,” Nunez,

594 F.3d at 1131, the phrase “crime involving moral

turpitude” is unconstitutionally vague.

I recognize that history is not on our side. The term

“crime involving moral turpitude” has persisted in our

immigration law since 1891, and in our common law tradition

for nearly a century longer. See Julia Ann Simon-Kerr, Moral

Turpitude, 2012 Utah L. Rev. 1001, 1010, 1039. Indeed, in

holding in 1951 that the term was not void for vagueness, the

Supreme Court thought it “significant that the phrase has

been part of the immigration laws for more than sixty years.”

De George, 341 U.S. at 229; see also Martinez-de Ryan v.

Whitaker, 909 F.3d 247, 252 (9th Cir. 2018). Committed to

the principle of stare decisis, we judges are loath to upset

long-settled doctrine. As the Supreme Court has recognized,

however, “stare decisis does not matter for its own sake. It

matters because it ‘promotes the evenhanded, predictable, and

16 AGUIRRE BARBOSA V. BARR

consistent development of legal principles.’” Johnson, 135 S.

Ct. at 2563 (quoting Payne v. Tennessee, 501 U.S. 808, 827

(1991)).

In Johnson, the Court recognized that “[d]ecisions under

the residual clause have proved to be anything but

evenhanded, predictable, or consistent.” Id. The same is true

of our tortured attempts to find logical consistency in the term

“moral turpitude.” Especially given the revitalization of the

void-for-vagueness doctrine in Johnson and Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), the time is ripe for

reconsideration of this issue.