Diego Mendoza-Garcia v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIEGO MENDOZA-GARCIA, No. 20-73583

Petitioner,

Agency No.

v. A077-148-170

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 9, 2021

San Francisco, California

Filed June 10, 2022

Before: Susan P. Graber and Daniel P. Collins, Circuit

Judges, and Jennifer Choe-Groves, * Judge.

Opinion by Judge Choe-Groves

*

The Honorable Jennifer Choe-Groves, Judge for the United States

Court of International Trade, sitting by designation.

2 MENDOZA-GARCIA V. GARLAND

SUMMARY **

Immigration

Denying in part and granting in part Diego Mendoza-

Garcia’s petition for review of a decision of the Board of

Immigration Appeals, the panel held that: (1) first-degree

burglary of a dwelling under Oregon Revised Statutes

section 164.225 is an aggravated felony; and (2) the BIA

misapplied a presumption in determining that Petitioner’s

conviction was a particularly serious crime barring

withholding of removal.

Petitioner was found removable on the ground that his

Oregon first-degree burglary conviction was a burglary

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

Petitioner argued that the Oregon statute is not a categorical

match with generic burglary because it is indivisible and

overbroad.

Applying the categorical approach, the panel first

addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir.

2016), in which this court held that the same Oregon statute

was not a categorical match to generic burglary because the

state definition of “building” includes nonpermanent and

immobile structures that were excluded from the generic

definition. After Cisneros, the Supreme Court held, in

United States v. Stitt, 139 S. Ct. 399 (2018), that the

inclusion of nonpermanent structures “designed or adapted

for overnight use” does not expand a statute beyond the

definition of generic burglary. The panel concluded that

**

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

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

MENDOZA-GARCIA V. GARLAND 3

Cisneros is clearly irreconcilable with Stitt, explaining that

Oregon’s definition of “building” is not more expansive than

the generic definition clarified by Stitt. Thus, the panel

expressly recognized that Cisneros had been overruled.

Next, the panel observed that this court has held that the

Oregon first-degree burglary statute is divisible into two

distinct crimes: one involving dwellings and one involving

non-dwellings. Applying the modified categorical

approach, the panel conducted a limited review of

Petitioner’s conviction record and concluded that he had

been convicted of burglary of a dwelling.

The panel next concluded that Oregon first-degree

burglary of a dwelling is a categorical match to generic

burglary. Petitioner argued that the state statute was

overbroad, but the panel concluded that all elements of the

offense substantially correspond to, or are narrower than, the

elements of generic burglary.

Petitioner also argued that the Government did not prove

by clear and convincing evidence that he was sentenced to a

term of imprisonment of at least one year, as required by the

definition of a burglary aggravated felony at 8 U.S.C.

§ 1101(a)(43)(G). The panel rejected that contention,

explaining that the sentencing court unambiguously imposed

a sentence of incarceration of more than one year by

sentencing Petitioner to a term of 55 months in the custody

of the Oregon Department of Corrections. Accordingly, the

panel concluded that Petitioner was convicted of an

aggravated felony for which the imposed term of

imprisonment was in excess of one year, and therefore, he

was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

4 MENDOZA-GARCIA V. GARLAND

As to withholding of removal, the BIA applied a

“presumption” that Petitioner’s conviction was a particularly

serious crime barring that relief, and required him to “rebut”

this presumption. The panel explained that for offenses that

are not defined by statute as “per se” particularly serious

crimes, the BIA has established a multi-factor test to

determine on a case-by-case basis whether a crime is

particularly serious, and that this court has rejected the view

that there is any subset of such cases that is exempt from this

multi-factor analysis based solely on the elements of the

offense. The panel concluded that the BIA’s application of

a rebuttable presumption here was difficult to square with

these precedents and observed that the Government

conceded that the BIA’s application of such a presumption

appeared erroneous. Because the BIA committed an error of

law, and abused its discretion, in failing to apply the correct

legal standards, the panel remanded to the BIA to consider

Petitioner’s application for withholding of removal under the

correct standards.

COUNSEL

Nancy Alexander (argued), Lucas & Barba LLP, Portland,

Oregon, for Petitioner.

Rebekah Nahas (argued), Trial Attorney; Lindsay Glauner,

Senior Litigation Counsel, Criminal Immigration Team;

Brian Boynton, Acting Assistant Attorney General; Office

of Immigration Litigation, Civil Division, United States

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

MENDOZA-GARCIA V. GARLAND 5

Kari E. Hong, Boston College Law School, Newton,

Massachusetts; Elisa Steglich, Attorney; Simon Lu and Jill

Applegate, Supervised Law Student; University of Texas

School of Law, Austin, Texas; for Amicus Curiae American

Immigration Lawyers Association.

OPINION

CHOE-GROVES, Judge:

Petitioner Diego Mendoza-Garcia, a native and citizen of

Mexico, seeks review of the Board of Immigration Appeals’

(“BIA”) decision affirming his removability and denying his

applications for withholding of removal and protection

under the Convention Against Torture (“CAT”). The BIA

concluded that Petitioner’s 2016 conviction for first-degree

burglary under Oregon law qualified as an aggravated felony

and rendered him removable under section 237(a)(2)(A)(iii)

of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(2)(A)(iii). The BIA also found that Petitioner was

ineligible for asylum, withholding of removal, and

protection under the CAT. We conclude that Petitioner is

subject to removal because of his conviction for first-degree

burglary of a dwelling under Oregon law. In doing so, we

recognize that United States v. Cisneros, 826 F.3d 1190 (9th

Cir. 2016), is irreconcilable with a later decision of the

United States Supreme Court and is overruled. We deny in

part the petition as it pertains to the BIA’s finding that

Petitioner was removable and the BIA’s denial of

Petitioner’s application for protection under the CAT. But,

because the BIA misapplied a presumption in its analysis of

Petitioner’s withholding-of-removal claim, we grant the

petition in part and remand for further proceedings on that

issue.

6 MENDOZA-GARCIA V. GARLAND

I.

Petitioner is a native and citizen of Mexico and became

a permanent resident of the United States in 2000. In 2016,

Petitioner pleaded guilty to and was convicted of first-degree

burglary of a dwelling under Oregon Revised Statutes

section 164.225. The information and subsequent

indictment charged Petitioner with unlawfully and

knowingly entering and remaining in a dwelling with the

intent to commit theft. He was initially sentenced to

36 months of supervised probation. Following a probation

violation, Petitioner was ordered committed to the custody

of the Oregon State Department of Corrections for

55 months.

The Government initiated removal proceedings against

Petitioner, charging him as removable pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii) as an alien who was convicted of an

aggravated felony for which he received a sentence of at

least one year. In October 2019, Petitioner filed a motion to

terminate his removal proceedings. He argued that first-

degree burglary under Oregon law is indivisible and

overbroad as an aggravated felony and that the Government

failed to demonstrate his removability by clear and

convincing evidence as it was not established that he was

sentenced to at least one year of imprisonment. In denying

the motion, the immigration judge (“IJ”) ruled that,

following United States v. Stitt, 139 S. Ct. 399, 406 (2018),

first-degree burglary under Oregon law is a categorical

match to generic burglary and that Petitioner was sentenced

to at least one year of imprisonment for violating his

probation.

Petitioner applied for cancellation of removal, asylum,

withholding of removal, and protection under the CAT. He

argued that his history of alcohol dependency would place

MENDOZA-GARCIA V. GARLAND 7

him at risk of harm because of the lack of safe support

programs in Mexico and that his visible cultural and

religious tattoos would make him a target for the police,

gangs, cartels, and other organized groups. The IJ found

Petitioner to be statutorily ineligible for asylum for having

been convicted of an aggravated felony. Petitioner was

found ineligible for withholding of removal because his

conviction for first-degree burglary was deemed to be a

particularly serious crime. In the alternative, the IJ denied

withholding of removal because Petitioner failed to

demonstrate that it was more likely than not that he would

be persecuted based on his membership in a particular group

if removed to Mexico. The IJ also denied Petitioner’s

application for CAT protection, finding that he failed to

demonstrate that it was more likely than not that he would

be tortured if removed to Mexico.

Petitioner appealed the IJ’s decision to the BIA. In

affirming the IJ’s decision, the BIA rejected Petitioner’s

argument that the Oregon first-degree burglary statute is

overbroad because it includes nonpermanent structures,

structures used solely for business purposes, curtilages, and

structures that were entered lawfully. The BIA affirmed the

decision of the IJ, concluding that first-degree burglary

under Oregon law is an aggravated felony, making Petitioner

subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). The

BIA denied Petitioner’s withholding of removal claim based

on a presumption that the burglary conviction was a

particularly serious crime. The BIA also denied Petitioner’s

claim for protection under the CAT.

II.

We review questions of law de novo, including whether

a conviction is a removable offense. Mielewczyk v. Holder,

575 F.3d 992, 994 (9th Cir. 2009). The agency’s factual

8 MENDOZA-GARCIA V. GARLAND

findings are reviewed for substantial evidence. 8 U.S.C.

§ 1252(b)(4)(B). We review the BIA’s determination of

whether a crime is particularly serious for abuse of

discretion. Arbid v. Holder, 700 F.3d 379, 383 (9th Cir.

2012) (per curiam). We may reverse the BIA’s decision for

abuse of discretion only if we determine that the BIA acted

“arbitrarily, irrationally, or contrary to law.” Id. at 385

(internal quotation marks omitted).

III.

We consider, in turn, the BIA’s determination of

Petitioner’s removability and its denials of Petitioner’s

applications for withholding of removal and CAT

protection.

A.

Petitioner was charged with removability under 8 U.S.C.

§ 1227(a)(2)(A)(iii), which provides: “[a]ny alien who is

convicted of an aggravated felony at any time after

admission is deportable.” The Government bases its charge

on Petitioner’s first-degree burglary conviction. Aggravated

felonies include a “burglary offense for which the term of

imprisonment [is] at least one year.” 8 U.S.C.

§ 1101(a)(43)(G). Petitioner argues that the BIA failed to

recognize that (1) the Oregon first-degree burglary statute is

not a categorical match with generic burglary because it is

indivisible and overbroad and (2) the Government did not

prove by clear and convincing evidence that Petitioner was

sentenced to a term of imprisonment of at least one year.

1.

In determining whether Petitioner’s conviction is an

aggravated felony, we apply the categorical approach

MENDOZA-GARCIA V. GARLAND 9

outlined in Taylor v. United States, 495 U.S. 575, 600–02

(1990), in which we look to whether first-degree burglary

under Oregon law substantially corresponds to, or is

narrower than, the elements of generic burglary. Quarles v.

United States, 139 S. Ct. 1872, 1880 (2019). The Supreme

Court has defined the elements of generic burglary as the

“unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.”

Taylor, 495 U.S. at 599. In comparing this generic definition

to the conviction statute, we disregard the specific facts of

the case and look only to the elements of the two crimes.

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).

The Oregon statute provides that first-degree burglary

occurs when a person:

violates [Oregon Revised Statutes section]

164.215 and the building is a dwelling, or if

in effecting entry or while in a building or in

immediate flight therefrom the person:

(a) Is armed with a burglary tool or theft

device as defined in [Oregon Revised

Statutes section] 164.235 or a deadly

weapon;

(b) Causes or attempts to cause physical

injury to any person; or

(c) Uses or threatens to use a dangerous

weapon.

Or. Rev. Stat. § 164.225(1). This statute incorporates

section 164.215, which criminalizes as second-degree

10 MENDOZA-GARCIA V. GARLAND

burglary “enter[ing] or remain[ing] unlawfully in a building

with intent to commit a crime therein.” Id. § 164.215(1).

In United States v. Cisneros, we held that Oregon first-

degree burglary is not a categorical match to generic

burglary because the definition of “building” used in the

statute includes nonpermanent and immobile structures,

such as “booths, vehicles, boats, or aircrafts” that were

excluded from the generic definition of burglary articulated

in Taylor. Cisneros, 826 F.3d at 1194 (citing Taylor,

495 U.S. at 599). Cisneros relied on United States v. Grisel,

488 F.3d 844 (9th Cir. 2007) (en banc). There, we held that

a “building or structure” under the “federal definition of

generic burglary” does not include structures such as trailers

and boats and is limited to “constructed edifices intended for

use in one place.” Grisel, 488 F.3d at 848–849, 851,

abrogated by Stitt, 139 S. Ct. 399 (2018).

Two years after we issued Cisneros, the Supreme Court

decided United States v. Stitt. The Court held that the

inclusion of nonpermanent structures “designed or adapted

for overnight use” does not expand a statute beyond the

definition of generic burglary. Stitt, 139 S. Ct. at 407. This

change in the law warrants a renewed consideration of

Cisneros.

As a threshold question, we must resolve whether

Cisneros is clearly irreconcilable with Stitt. See Miller v.

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

(holding that a three-judge panel is bound by the decision of

another three-judge panel unless an intervening decision of

a relevant court of last resort “undercut[s] the theory or

reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable”). The sole

ground articulated by the court in Cisneros for finding the

Oregon burglary statute to be overbroad was its inclusion of

MENDOZA-GARCIA V. GARLAND 11

nonpermanent structures, such as “booths, vehicles, boats, or

aircrafts.” Cisneros, 826 F.3d at 1194. The Cisneros

holding rested in part on Grisel. Id. at 1194–95. The

Supreme Court disapproved of excluding nonpermanent

buildings and structures from generic burglary in Stitt. See

Stitt, 139 S. Ct. at 406–07; see also Mutee v. United States,

920 F.3d 624, 627 (9th Cir. 2019) (per curiam) (recognizing

that Stitt abrogated Grisel). Looking specifically at the

Oregon first-degree burglary statute, the term “building”

means, “in addition to its ordinary meaning . . . any booth,

vehicle, boat, aircraft or other structure adapted for overnight

accommodation of persons or for carrying on business

therein.” Or. Rev. Stat. § 164.205(1). This text is not more

expansive than the generic definition of burglary as clarified

by Stitt. Because Cisneros is clearly irreconcilable with Stitt,

we now expressly recognize that Cisneros is overruled.

2.

Having disposed of the precedential limitations of

Cisneros, we turn to the question whether the specific

offense of which Petitioner was convicted is an aggravated

felony. When a statute is divisible and provides elements for

more than one distinct crime, we apply a modified

categorical approach to consider only the specific offense of

conviction. Mathis v. United States, 579 U.S. 500, 505–06

(2016). We recently held that the Oregon first-degree

burglary statute is divisible into two distinct crimes:

(1) entering or unlawfully remaining in a dwelling with the

intent to commit a crime therein; and (2) entering or

unlawfully remaining in a non-dwelling building with intent

to commit a crime plus an aggravating factor. Diaz-Flores

v. Garland, 993 F.3d 766, 771–72 (9th Cir. 2021). In

Cisneros, we addressed the first of these two distinct crimes

and noted that the Oregon statute is not further divisible as

12 MENDOZA-GARCIA V. GARLAND

to the “type” of dwelling. 826 F.3d at 1194–95; see also

Diaz-Flores, 993 F.3d at 772 & n.5. As noted earlier, we

then held in Cisneros that the Oregon statute’s definition of

“dwelling” was not a categorical match to the federal generic

crime of burglary because it included burglary of structures

such as “booths, vehicles, boats, or aircrafts,” 826 F.3d

at 1194, but Stitt has abrogated that holding. As we

recognized in Diaz-Flores, however, nothing in Cisneros is

inconsistent with our recognition that the Oregon statute is

divisible with respect to burglary of dwellings versus

burglary of non-dwellings. 993 F.3d at 772. This reading of

the statute is supported further by Oregon’s Uniform

Criminal Jury Instructions, which distinguish between

burglary in the first-degree of a dwelling, Or. Unif. Crim.

Jury Instr. 1901, and burglary in the first-degree of a building

other than a dwelling, Or. Unif. Crim. Jury Instr. 1902. See

Almanza-Arenas v. Lynch, 815 F.3d 469, 482 (9th Cir. 2016)

(en banc) (considering the California pattern jury

instructions in determining divisibility).

To ascertain the specific crime of Petitioner’s conviction,

we may conduct a limited review of the record of conviction.

Diaz-Flores, 993 F.3d at 772 (citing Descamps v. United

States, 570 U.S. 254, 257 (2013)). Petitioner’s charging

instruments describe the burglary as “unlawfully and

knowingly enter[ing] and remain[ing] [in] a dwelling . . .

with the intent to commit the crime of theft therein.”

(Emphasis added). In his plea agreement, Petitioner admits:

“I unlawfully and knowingly entered and remained in an

occupied dwelling with the intent to commit the crime of

theft therein.” (Emphasis added). Accordingly, we

conclude that Petitioner was convicted of first-degree

burglary of a dwelling.

MENDOZA-GARCIA V. GARLAND 13

Having identified the specific crime of conviction, we

must now determine whether the elements of Oregon first-

degree burglary of a dwelling are a categorical match to

generic burglary. The elements of Oregon first-degree

burglary of a dwelling are: (1) the offender enters or remains

unlawfully; (2) the building is a dwelling; and (3) the

offender has the intent to commit a crime therein. Or. Rev.

Stat. §§ 164.215, 164.225. Oregon law defines “building”

to include, in addition to its ordinary meaning, “any booth,

vehicle, boat, aircraft or other structure adapted for overnight

accommodation of persons or for carrying on business

therein.” Id. § 164.205(1). “Dwelling” is defined as “a

building which regularly or intermittently is occupied by a

person lodging therein at night, whether or not a person is

actually present.” Id. § 164.205(2).

The first element of Oregon first-degree burglary is that

the offender “enter[] or remain[] unlawfully.” Id. § 164.215;

see also id. § 164.225. Similarly, generic burglary prohibits

“unlawful or unprivileged entry.” Taylor, 495 U.S. at 599.

Petitioner contends that the Oregon statute is overbroad

because it covers burglary resulting from a lawful entry and

situations in which a lawful entrant exceeds the scope of

licensed entry but there is no risk of likely violent

confrontation. A plain reading of the Oregon statute

disposes of Petitioner’s first contention. Oregon law defines

“enter or remain unlawfully” as:

(a) To enter or remain in or upon premises

when the premises, at the time of such entry

or remaining, are not open to the public and

when the entrant is not otherwise licensed or

privileged to do so;

14 MENDOZA-GARCIA V. GARLAND

(b) To fail to leave premises that are open to

the public after being lawfully directed to do

so by the person in charge;

(c) To enter premises that are open to the

public after being lawfully directed not to

enter the premises; or

(d) To enter or remain in a motor vehicle

when the entrant is not authorized to do so.

Or. Rev. Stat. § 164.205(3). This definition makes clear that

“unlawfully” modifies both “enters” and “remains” in

section 164.215. Furthermore, the generic definition of

burglary encompasses situations in which an offender

remains unlawfully within a building. See Quarles, 139 S.

Ct. at 1877. There is no additional requirement that the

unlawful presence be accompanied by an actual risk of

violent confrontation. Thus, the first element of Oregon

first-degree burglary of a dwelling is not overbroad.

The second element of Oregon first-degree burglary of a

dwelling is that the building be a dwelling. Generic burglary

covers burglaries of traditional buildings or structures.

Taylor, 495 U.S. at 598. The definition also encompasses

burglary of nonpermanent structures that have been

“designed or adapted for overnight use.” Stitt, 139 S. Ct.

at 405–07.

Petitioner contends that Oregon first-degree burglary is

overbroad because it covers burglary of non-structures,

vehicles that are intermittently occupied at night, and

structures used solely for business purposes. As recognized

in Stitt, though, generic burglary encompasses non-

traditional and nonpermanent structures that are “designed

MENDOZA-GARCIA V. GARLAND 15

or adapted for overnight use.” Id. The definition of

“building” under Oregon law imposes an almost identical

qualification on non-traditional buildings. Or. Rev. Stat.

§ 164.205(1). The definition of “building” is further

modified by the requirements that it be a “dwelling” and that

it be “regularly or intermittently [] occupied by a person

lodging therein at night, whether or not a person is actually

present.” Or. Rev. Stat. §§ 164.205(2), 164.225(1).

The requirement of adaptation for overnight

accommodation forecloses the applicability of the statute to

vehicles or structures that might provide occasional shelter

despite being designed for another purpose, such as a car in

which a homeless person occasionally sleeps. See United

States v. Jones, 951 F.3d 1138, 1141 (9th Cir. 2020)

(applying Stitt to Colorado’s burglary statute, which defined

“building” to include “structures” such as vehicles). The

additional requirement that the building be regularly or

intermittently occupied by a person lodging therein at night

forecloses the statute’s applicability to buildings and

vehicles used solely for business purposes or storage. See

id. Petitioner has not demonstrated a realistic probability

that the Oregon first-degree burglary statute, as it pertains to

the burglary of a dwelling, would be applied to burglary of a

structure or non-structure that would not be covered by

generic burglary. See Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007) (“[T]o find that a state statute creates a

crime outside the generic definition of a listed crime in a

federal statute requires more than the application of legal

imagination to a state statute’s language. It requires 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.”).

16 MENDOZA-GARCIA V. GARLAND

Petitioner also argues that the Oregon first-degree

burglary statute is overbroad because it covers curtilages,

which are not buildings or structures under the generic

definition of burglary. In support of this argument,

Petitioner cites State v. Taylor, 350 P.3d 525 (Or. Ct. App.

2015), in which the Oregon Court of Appeals sustained the

conviction of a defendant who attempted to steal cans from

an area described in the case as a “breezeway.” But the court

in Taylor noted that the location of the burglary was not a

breezeway as the term is commonly understood. Id. at 526.

The area was roofed, almost fully enclosed, and shared walls

with both a house and a garage. Id. at 526–27. There was a

door connecting the area to the garage, though no door to the

house. Id. The only opening to the outside was an archway

approximately the size of a door. Id. The Oregon Court of

Appeals ultimately concluded that the breezeway in fact was

part of the dwelling. Id. at 533. We are not convinced that

there is a realistic probability that Oregon courts would

extend first-degree burglary to curtilages or separate

buildings. See Gonzales, 549 U.S. at 193. The text of the

Oregon first-degree burglary statute clearly limits its

application to buildings. Therefore, the second element of

Oregon first-degree burglary of a dwelling is not overbroad.

The final element of Oregon first-degree burglary of a

dwelling is that the offender has the intent to commit a crime

therein. Generic burglary also includes as an element that

the offender possess intent to commit a crime. Taylor,

495 U.S. at 599. These elements are consistent. Because all

elements of first-degree burglary of a dwelling under Oregon

law substantially correspond to, or are narrower than, the

elements of generic burglary, the Oregon first-degree

burglary statute is a categorical match to generic burglary.

MENDOZA-GARCIA V. GARLAND 17

3.

To qualify as an aggravated felony under federal law, a

conviction for a burglary offense must result in a “term of

imprisonment [of] at least one year.” 8 U.S.C.

§ 1101(a)(43)(G). “Term of imprisonment” refers to the

actual sentence imposed by the sentencing judge. Alberto-

Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000). The

Government bears the burden of demonstrating by clear and

convincing evidence that this requirement has been satisfied.

8 U.S.C. § 1229a(c)(3)(A).

Petitioner was initially sentenced to supervised

probation for a period of 36 months. After he violated the

terms of his probation, the following sentence was imposed:

“Defendant shall be committed to the custody of the Oregon

State Department of Corrections/Marion County

Supervisory Authority for 55 months. The length of post-

prison supervision shall be 36 months. The Supervisory

Authority may impose sanctions other than incarceration.”

Petitioner contends that this passage is ambiguous and could

be interpreted as imposing either 55 months of incarceration

or 55 months of sanctions other than incarceration. In

support of this interpretation, Petitioner points to the

sentencing court’s order as indicating that he could have

been committed to the custody of the Marion County

Supervisory Authority.

We are not convinced. The wording that Petitioner cites

is taken from a pre-printed form order that allowed the

sentencing judge to manually add the terms of incarceration

and post-prison supervision. Under Oregon law, a court that

imposes a sentence of incarceration of more than one year

must commit the defendant to the custody of the Oregon

Department of Corrections. Or. Rev. Stat. § 137.124(1)(a).

Only if the sentence imposed is for one year or less may the

18 MENDOZA-GARCIA V. GARLAND

sentencing court commit a defendant to the custody of a local

supervisory authority. Id. § 137.124(2)(a). By sentencing

Petitioner to a term of 55 months in the custody of the

Oregon Department of Corrections, the sentencing court

unambiguously imposed a sentence of incarceration of more

than one year. This interpretation is bolstered by the

sentencing court’s inclusion of specific authorization for the

Department of Corrections to release Petitioner on post-

prison supervision under Oregon Revised Statutes section

421.508(4), which requires an offender to have served a term

of incarceration of at least one year. See Or. Rev. Stat.

§ 421.508(4). Reading the order within the context of the

relevant Oregon law, it is clear that Petitioner was sentenced

to a term of incarceration of 55 months in the custody of the

Oregon Department of Corrections. The term of

incarceration was to be followed by 36 months of post-

prison supervision by the Marion County Supervisory

Authority, which was authorized to impose sanctions other

than incarceration for violations of the terms of Petitioner’s

supervised release.

We conclude that Petitioner was convicted of an

aggravated felony for which the imposed term of

imprisonment was in excess of one year. Therefore,

Petitioner is subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii).

B.

A non-citizen is ineligible for withholding of removal if

convicted of a “particularly serious crime” and deemed “a

danger to the community of the United States.” 8 U.S.C.

§ 1231(b)(3)(B)(ii). A crime can qualify as a particularly

serious crime in two ways. The first is when an aggravated

felony results in a sentence of a term of imprisonment of at

least five years. Id. § 1231(b)(3)(B). The second occurs

MENDOZA-GARCIA V. GARLAND 19

when the Attorney General, through the BIA, designates

“offenses as particularly serious crimes through case-by-

case adjudication as well as regulation.” Delgado v. Holder,

648 F.3d 1095, 1098 (9th Cir. 2011) (en banc). As Petitioner

was not sentenced to a term of imprisonment of five years or

more, we consider the second category.

In determining whether a crime is particularly serious,

the BIA considers: “(1) the nature of the conviction, (2) the

type of sentence imposed, and (3) the circumstances and

underlying facts of the conviction.” Bare v. Barr, 975 F.3d

952, 961 (9th Cir. 2020) (quoting In re N-A-M-, 24 I. & N.

Dec. 336, 342 (B.I.A. 2007), overruled in part on other

grounds by Blandino-Medina v. Holder, 712 F.3d 1338,

1347–48 (9th Cir. 2013)) (internal quotation marks omitted).

This analysis begins with the BIA determining whether the

elements of the crime of conviction “potentially bring the

crime into a category of particularly serious crimes.” In re

N-A-M-, 24 I. & N. at 342. If so, the BIA then considers “all

reliable information” in analyzing the remaining two factors.

Id.

The IJ found that Petitioner’s conviction for first-degree

burglary constituted a particularly serious crime and barred

withholding of removal. In reaching his conclusion, the IJ

reviewed the specific facts of the burglary and concluded

that Petitioner’s unlawful entry and conduct during the

burglary created a potential for danger. The IJ also

considered Petitioner’s sentences of 36 months of probation

for first-degree burglary and 55 months of incarceration for

the subsequent probation violation. The IJ noted that he did

not consider the 55-month sentence as evidence of

enhancement of the burglary conviction but viewed the

sentence as evidence of the seriousness that the sentencing

court attached to the offense. In considering the events in

20 MENDOZA-GARCIA V. GARLAND

their totality, the IJ recognized a pattern of conduct that

indicated a potential danger, including repeated violations of

no-contact orders. Upon review of the conviction and the

surrounding facts, the IJ found Petitioner’s burglary to be a

particularly serious crime.

The BIA reviews de novo the IJ’s determination of

“questions of law, discretion, and judgment,” 8 C.F.R.

§ 1003.1(d)(3)(ii), including whether an alien’s prior offense

is a “particularly serious crime.” It is unclear whether the

BIA undertook that de novo review here, because it applied

a “presumption” that Petitioner’s conviction was a

particularly serious crime and required him to “rebut” this

presumption. But for those offenses that are not defined by

the statute itself as “per se a particularly serious crime,” the

BIA’s precedent establishes “a multi-factor test to determine

on a case-by-case basis whether a crime is particularly

serious.” Bare, 975 F.3d at 961. Moreover, we have rejected

the view that there is any subset of such cases that is exempt

from this multi-factor analysis “based solely on the elements

of the offense.” Blandino-Medina, 712 F.3d at 1348. The

BIA’s application of a rebuttable presumption is difficult to

square with these precedents, and the Government concedes

in its brief that the BIA’s application of such a presumption

“appears erroneous.” The BIA committed an error of law,

and abused its discretion, in failing to apply the correct legal

standards in assessing whether Petitioner’s offense was a

“particularly serious crime.” We therefore remand to the

BIA to consider Petitioner’s application for withholding of

removal under the correct standards.

C.

The BIA determined that Petitioner is not entitled to

protection under the CAT. To qualify for CAT protection,

Petitioner must prove “that it is more likely than not that he

MENDOZA-GARCIA V. GARLAND 21

. . . would be tortured if removed” to Mexico. 8 C.F.R.

§ 208.16(c)(2). Petitioner has not alleged past torture. The

potential for future torture at the hands of Mexican police

and gang members because of his tattoos and the risks

associated with alcohol abuse and dependence are too

speculative. We therefore conclude that the BIA’s

determination that Petitioner is not entitled to protection

under the CAT is supported by substantial evidence. See

Xiao Fei Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir.

2011) (concluding that the record did not compel a reversal

with respect to the BIA’s finding that the potential for future

torture was speculative). We deny the petition with respect

to CAT relief.

IV

In summary, we conclude that Oregon first-degree

burglary of a dwelling is a categorical match to generic

burglary and, in doing so, expressly recognize that our prior

decision in United States v. Cisneros, 826 F.3d 1190 (9th

Cir. 2016), is overruled. We deny the petition as to the BIA’s

finding that Petitioner is subject to removal under section

237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii),

and the BIA’s denial of Petitioner’s application for CAT

protections. Because the BIA erred in applying a

presumption that Petitioner’s conviction for first-degree

burglary of a dwelling constituted a particularly serious

crime, we remand Petitioner’s application for withholding of

removal to the BIA for renewed consideration applying the

correct legal standard.

PETITION FOR REVIEW IS DENIED IN PART

AND GRANTED AND REMANDED IN PART. The

parties shall bear their own costs on appeal.