Ludwin Lopez-Aguilar v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUDWIN ISRAEL LOPEZ-AGUILAR, No. 17-73153

Petitioner,

Agency No.

v. A074-394-680

WILLIAM P. BARR, Attorney General

of the United States, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 5, 2019

Portland, Oregon

Filed January 28, 2020

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

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

Opinion by Judge Berzon;

Concurrence by Judge Graber

*

The Honorable John R. Tunheim, Chief United States District

Judge for the District of Minnesota, sitting by designation.

2 LOPEZ-AGUILAR V. BARR

SUMMARY **

Immigration

The panel granted Ludwin Israel Lopez-Aguilar’s

petition for review of a decision of the Board of Immigration

Appeals, which found him removable based on his robbery

conviction under Oregon Revised Statutes section 164.395,

and held that section 164.395 is not a categorical theft

offense and therefore not an aggravated felony under section

101(a)(43)(G) of the Immigration and Nationality Act.

Comparing section 164.935 to the generic definition of

theft, the panel held that section 164.935 is facially

overbroad because a generic theft offense is defined as the

taking of property or an exercise of control over property

without consent with the criminal intent to deprive the owner

of rights and benefits of ownership, whereas section 164.935

includes consensual takings via theft by deception. The

panel concluded that because it is possible to commit theft

by deception with the consent of the owner, Oregon’s theft

statute expressly includes conduct outside of the generic

definition.

The panel further held that the additional robbery

elements of section 164.395—namely, the use or threat of

force to obtain the property—do not limit the reach of the

statute to match the generic definition of theft. Noting that

a force element generally implies a lack of consent, the panel

pointed out that section 164.395 expressly contemplates that

such force may be used to compel another person, rather than

**

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

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

LOPEZ-AGUILAR V. BARR 3

the property owner, to deliver the property or to engage in

other conduct which might aid the commission of the theft.

For example, a defendant could be convicted if she

threatened force against a third party to compel that third

party to convince a property owner, by deception, to give the

property to the defendant consensually. Similarly, a

defendant could be convicted if the taking was consensual

(although deceptive), but force was used against a third party

to prevent that person from retrieving the property right after

it was received by the thief. Consequently, the panel

concluded that, even with the additional robbery elements,

the text of the statute expressly includes situations involving

consensual taking, and therefore is facially overbroad.

Because the government did not argue that section

164.935 was divisible, the panel deemed the issue waived,

and ended its inquiry without proceeding to the modified

approach.

Concurring, Judge Graber, joined by District Judge

Tunheim, agreed with the opinion in full, but wrote

separately to add her voice to the substantial chorus of

federal judges pleading for the Supreme Court or Congress

to “rescue us from the morass of the categorical approach,”

which requires the performance of absurd legal gymnastics,

and produces absurd results.

COUNSEL

Jennifer K. Lesmez (argued), Law Offices of Jennifer

Lesmez, Selah, Washington; Jerome Mayer-Cantú, Oakland,

California; for Petitioner.

4 LOPEZ-AGUILAR V. BARR

Imran R. Zaidi (argued) and Matthew A. Spurlock, Trial

Attorneys; John S. Hogan and John W. Blakeley, Assistant

Directors; Joseph H. Hunt, Assistant Attorney General;

Office of Immigration Litigation, Civil Division, United

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

Respondent.

Kari Hong, Ninth Circuit Appellate Program, Boston

College Law School, Newton, Massachusetts, for Amici

Curiae American Immigration Lawyers Association,

Florence Immigrant & Refugee Rights Project, and

Innovation Law Lab.

OPINION

BERZON, Circuit Judge:

Petitioner Ludwin Israel Lopez-Aguilar, a native and

citizen of Guatemala, seeks review of a final order of the

Board of Immigration Appeals (“BIA”) finding him

removable pursuant to § 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 relief under the Convention

Against Torture (“CAT”). We grant Lopez-Aguilar’s

petition because we conclude that section 164.395 is not a

categorical theft offense and, therefore, not an aggravated

felony under § 101(a)(43)(G) of the INA. Because we

conclude that Lopez-Aguilar is not removable, we do not

reach the question whether the record supports the BIA’s

denial of CAT relief.

LOPEZ-AGUILAR V. BARR 5

I

Lopez-Aguilar 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 in March 2001,

when his application for suspension of deportation was

granted.

In 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. The

government initiated removal proceedings against Lopez-

Aguilar based on the robbery conviction.

An immigration judge (“IJ”) found Lopez-Aguilar

removable as an alien convicted of an aggravated felony as

defined in section 101(a)(43)(G) of the INA, which defines

theft offenses for which the term of imprisonment is at least

one year. The BIA agreed that the conviction was for a theft

offense under section 101(a)(43)(G). 1

The BIA rejected Lopez-Aguilar’s argument that section

164.395 is overbroad because it incorporates theft by

deception and thus covers consensual takings. The BIA

concluded that the statute requires taking property by force,

which negates the consensual nature of theft by deception.

The BIA also rejected Lopez-Aguilar’s argument that

section 164.395 is overbroad because it covers mere

unauthorized use of a vehicle, affirmed the denial of Lopez-

Aguilar’s petition for relief under CAT, and affirmed the

order that Lopez-Aguilar be removed to Guatemala.

1

The BIA disagreed with the IJ’s alternative conclusion that Lopez-

Aguilar’s conviction under section 164.395 was for a crime of violence

under section 101(a)(43)(F) of the INA.

6 LOPEZ-AGUILAR V. BARR

II

We have jurisdiction to review final orders of removal

based on a petitioner’s commission of an aggravated felony

to the extent that the petition “raises . . . questions of law.”

Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir. 2008) (per

curiam) (quoting Vizcarra-Ayala v. Mukasey, 514 F.3d 870,

872 (9th Cir. 2008)). Whether a particular offense is an

“aggravated felony” under the INA is a question of law that

we review de novo. Id.

Lopez-Aguilar argues that section 164.395 exceeds the

generic definition of a theft offense because it incorporates

consensual takings via theft by deception, and the force

elements do not impose a requirement that the defendant

engage in a nonconsensual taking. We agree.

To determine whether a particular conviction is for a

generic offense, we use the categorical and modified

categorical approaches of Taylor v. United States, 495 U.S.

575 (1990), and Shepard v. United States, 544 U.S. 13

(2005). Under the categorical approach, we “compare the

elements of the statute forming the basis of the defendant’s

conviction”—here, Or. Rev. Stat. section 164.395—”with

the elements of the ‘generic’ crime.” Descamps v. United

States, 570 U.S. 254, 257 (2013). There is a categorical

match “only if the statute’s elements are the same as, or

narrower than, those of the generic offense.” Id. If the statute

of conviction is broader than the generic offense, we next

determine whether the statute is divisible or indivisible.

Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir.

2014). Only when an overbroad statute is divisible do we

turn to the “modified categorical approach.” Descamps,

570 U.S. at 263–64. An overbroad and indivisible statute

does not constitute a generic crime. Id. at 264–65; Medina-

Lara, 771 F.3d at 1112.

LOPEZ-AGUILAR V. BARR 7

A

“A state offense qualifies as a generic offense—and

therefore, in this case, as an aggravated felony—only if the

full range of conduct covered by [the state statute] falls

within the meaning of the generic offense.” United States v.

Alvarado-Pineda, 774 F.3d 1198, 1202 (9th Cir. 2014)

(citation and internal quotation marks omitted). Gonzales v.

Duenas-Alvarez held that a state conviction is not a

categorical match for its generic counterpart if there is “a

realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside the

generic definition of a crime.” 549 U.S. 183, 193 (2007).

There are two ways to show “a realistic probability” that

a state statute exceeds the generic definition. First, there is

not a categorical match if a state statute expressly defines a

crime more broadly than the generic offense. United States

v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),

abrogated on other grounds by United States v. Stitt, 139

S. Ct. 399 (2018). As long as the application of the statute’s

express text in the nongeneric manner is not a logical

impossibility, the relative likelihood of application to

nongeneric conduct is immaterial. See United States v.

Valdivia-Flores, 876 F.3d 1201, 1208 (9th Cir. 2017).

Second, a petitioner can show that a state statute exceeds the

generic definition if the petitioner can “point to at least one

case in which the state courts applied the statute” in a

situation that does not fit under the generic definition. United

States v. Ruiz-Apolonio, 657 F.3d 907, 914 (9th Cir. 2011)

(citing Duenas-Alvarez, 549 U.S. at 193).

Here, the Oregon robbery statute is facially overbroad

because its “greater breadth is evident from its text.” Grisel,

488 F.3d at 850.

8 LOPEZ-AGUILAR V. BARR

Under the INA, a conviction for a generic theft offense

that results in a prison term of at least one year is an

aggravated felony. 8 U.S.C. § 1101(a)(43)(G). A generic

“theft” is defined as the “taking of property or an exercise of

control over property without consent with the criminal

intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or

permanent.” Duenas-Alvarez, 549 U.S. at 189 (emphasis

added) (quoting Penuliar v. Gonzales, 435 F.3d 961, 969

(9th Cir. 2006)).

The Oregon robbery statute of conviction here provides:

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 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.

LOPEZ-AGUILAR V. BARR 9

Or. Rev. Stat. § 164.395. Section 164.395 incorporates

Oregon’s definition of theft, which includes “theft by

deception.” Or. Rev. Stat. §§ 164.015(4), 164.085.

The first requirement of section 164.395 is a theft or

attempted theft or unauthorized use of a vehicle. A theft by

deception satisfies this element. See Or. Rev. Stat.

§§ 164.015(4), 164.085. The generic definition of theft

requires that the taking be without consent. Alvarado-

Pineda, 774 F.3d at 1202. We have explained elsewhere that

theft statutes which include theft by deception fall outside

the generic definition for theft. See, e.g., Lopez-Valencia v.

Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (explaining that

California’s theft statute is overbroad because it includes

conduct such as theft by false pretenses, which could be

consensual); United States v. Rivera, 658 F.3d 1073, 1077

(9th Cir. 2011) (same), abrogated on other grounds by

Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015).

Because it is possible to commit theft by deception with the

consent of the owner, Oregon’s theft statute expressly

includes conduct outside of the generic definition.

The additional robbery elements of section 164.395—

namely, the use or threat of force to obtain the property—do

not limit the reach of the statute to match the generic

definition of theft. A force element generally implies a lack

of consent—the force can be used, for example, to overcome

resistance or otherwise compel behaviors. But the statute

here expressly contemplates that such force may be used to

“compel[]” “another person,” rather than the property

owner, “to deliver the property or to engage in other conduct

which might aid the commission of the theft.” Or. Rev. Stat.

§ 164.395(1)(b).

Consequently, even with the additional robbery

elements, the text of the statute expressly includes situations

10 LOPEZ-AGUILAR V. BARR

involving consensual takings. Under subsection (b), a

defendant could be convicted if she threatened force against

a third party to compel that third party to convince a property

owner, by deception, to give the property to the defendant

consensually. See Or. Rev. Stat. § 164.395(1)(b) (covering

threatened force used to “compel[] . . . another person to . . .

engage in [] conduct which might aid in the commission of

the theft”). In that scenario, the property would have been

taken with the consent of the owner, and the force used

would not negate the owner’s consent because the force was

used against a third party without the owner’s knowledge.

Similarly, under subsection (a), a defendant could be

convicted if the taking was consensual (although deceptive),

but force was used against a third party to prevent that person

from retrieving the property right after it was received by the

thief. In that case, the thief would use “physical force upon

another person with the intent of . . . [p]reventing or

overcoming resistance . . . to retention [of the property]

immediately after the taking.” See id. § 164.395(1)(a).

Although correctly recognizing that the plain text of

section 164.395 does not require that the defendant engage

in a nonconsensual taking, the BIA reasoned that the force

requirement would necessarily nullify consent, because

“[t]here is no meaningful difference between a taking of

property accomplished against the victim’s will and one

where his ‘consent’ to parting with his property is coerced

through force, fear, or threats,” citing Matter of Ibarra, 26

I. & N. Dec. 809, 811 (B.I.A. 2016). But, as we have noted,

under the plain text of the statute, it is possible to apply the

force needed for a third-degree robbery against a third

person while engaging in a taking that is consensual with

regard to the victim of the robbery. The state statute at issue

in Matter of Ibarra, by contrast, explicitly required “the

LOPEZ-AGUILAR V. BARR 11

felonious taking of personal property in the possession of

another . . . against his will.” 26 I. & N. Dec. at 810 n.2

(emphasis added) (quoting Cal. Penal Code § 211); see also

id. at 812 (“[T]he jury instructions for section 211 of the

California Penal Code require as an element that the

defendant take property from another ‘against that person’s

will.’” (citation omitted)).

In short, unlike the generic theft offense, section 164.395

does not require that the defendant engage in a

nonconsensual taking. As the Oregon statute expressly

includes consensual takings, it is facially overbroad. See

Grisel, 488 F.3d at 850.

B

Because we hold that the statute is overbroad, we move

to the next step in the analysis: determining whether the

statute is divisible, such that application of the modified

categorical approach is appropriate. See Lopez-Valencia,

798 F.3d at 867–68.

Oregon’s third-degree robbery statute is indivisible. In

this case, the government did not argue otherwise. “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.” Barbosa v. Barr, 926 F.3d 1053,

1059 (9th Cir. 2019). Because the statute of conviction is

both overbroad and indivisible, the modified approach “has

no role to play in this case” and the inquiry ends. Descamps,

570 U.S. at 264.

III

Accordingly, we hold that section 164.395 is facially

overbroad and indivisible. As it therefore does not qualify as

12 LOPEZ-AGUILAR V. BARR

a categorical theft offense, it does not count as an aggravated

felony under section 101(a)(43)(G) of the INA.

Because Lopez-Aguilar’s conviction was not for an

aggravated felony, he is not removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). We therefore grant the petition.

Petition GRANTED.

GRABER, Circuit Judge, with whom Judge Tunheim joins,

concurring:

I join the majority opinion in full. I write separately to

add my voice to the substantial chorus of federal judges

pleading for the Supreme Court or Congress to rescue us

from the morass of the categorical approach. See, e.g.,

United States v. Brown, 879 F.3d 1043, 1051–52 (9th Cir.

2018) (Owens, J., concurring) (noting that “countless

judges” have “urg[ed] an end” to the categorical approach);

United States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th

Cir. 2017) (O’Scannlain, J., specially concurring) (collecting

cases). The categorical approach requires us to perform

absurd legal gymnastics, and it produces absurd results.

As the majority opinion explains, Oregon Revised

Statutes section 164.395 is not a categorical match for the

generic theft offense because it incorporates consensual

takings. But I can conceive of very few scenarios in which

a defendant could use, or threaten the immediate use of,

physical force against a third party while carrying out a

taking that was consensual from the property owner’s

perspective. And in my view those scenarios are unlikely to

occur and to be prosecuted under this statute. Regardless of

the existence of possible examples of consensual takings

LOPEZ-AGUILAR V. BARR 13

under section 164.395, the fundamental problem is that, to

escape the consequences of his actions under our

immigration laws, Petitioner need not show that he carried

out a consensual taking. Without a doubt, there are better

ways to decide these cases. See, e.g., Brown, 879 F.3d at

1051 (advocating for “[a] regime based on the length of

previous sentences, rather than on the vagaries of state law”).

The categorical approach allows individuals who have

been convicted of serious crimes to avoid removal, so long

as they are “clever enough to find some space in the state

statutory scheme that lies outside the federal analogue.”

Valdivia-Flores, 876 F.3d at 1211. As my colleagues have

noted, we have no discretion in removal cases such as this

one to correct absurd results—indeed, we must turn a blind

eye even when the defendant’s actions underlying his state

conviction unquestionably meet the definition of the generic

federal offense. Id.

It is past time for someone with the power to fix this mess

to do so.