Ninth Circuit Reverses Finding that Oregon Conviction for Menacing Constituting Domestic Violence is a CIMT

The Ninth Circuit has determined that an Oregon conviction for menacing constituting domestic violence is not a crime involving moral turpitude because it does not require the actual infliction of fear. “A CIMT determination requires both an evil or malicious intent and the infliction of actual substantial harm on another. In Latter-Singh, we explained that the injury required under § 422—that the victim experience sustained fear from the threat—ensured that the statute criminalized only ‘conduct which results in substantial harm’ and excluded non-turpitudinous conduct such as ‘emotional outbursts’ or ‘mere angry utterances or ranting soliloquies, however violent.’” “The Oregon menacing statute prohibits words or conduct that is intended to place others in fear of imminent serious physical injury, but it does not require any intent to cause injury or that the victim experience any actual fear or injury as a result of the criminal act.”

The full text of Flores-Vasquez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/31/20-73447.pdf

Ninth Circuit Finds Oregon First Degree Residential Burglary is a Burglary Aggravated Feony

The Ninth Circuit has determined that Oregon’s first-degree residential burglary statute is a categorical match to the definition of a burglary aggravated felony. In so doing, the court rejected the argument that the statute includes entering the curtilage of the building, or that statute’s occupancy requirement is too intermitent.

The full text of Mendoza Garcia v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/10/20-73583.pdf

Ninth Circuit Determines that Oregon Conviction for First-Degree Burglary is CIMT

The Ninth Circuit has concluded that the Oregon statute governing first-degree burglary is overbroad as compared to the generic definition of a crime involving moral turpitude because it proscribes any unlawful entry into any “building,” including a commercial space, with any criminal intent. However, the court determined that the statute is divisible between two distinct crimes: (1) first-degree burglary of a dwelling; and (2) first-degree burglary of a non-dwelling involving an aggravating factor. The court also deferred to Matter of J-G-D-F and found that burglary of a regularly or intermittently occupied dwelling is a crime involving moral turpitude.

The full text of Diaz-Flores v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/06/17-72563.pdf

BIA Finds OR Second Degree Child Neglect Conviction is Crime of Child Abuse

The Board of Immigration Appeals has determined that an Oregon conviction for second degree child neglect is a crime of child abuse even though the statute only requires “the likelihood of exposure to harm, rather than the probability of a particular harm actually occurring.” “The language ‘may be likely to endanger’ has been interpreted to require circumstances that are ‘likely to make probable a state of being exposed to harm,’ and the risk of that harm occurring must be ‘substantial and unjustifiable.’ Because the statute requires criminal negligence and a showing of more than a mere possibility of, or potential for, harm, we conclude that respondent was convicted of a ‘crime of child abuse, child neglect, or child abandonment’ under section 237(a)(2)(E)(i) of the Act.”

The full text of Matter of Rivera-Mendoza can be found here:

https://www.justice.gov/eoir/page/file/1347841/download

Ninth Circuit Determines that Oregon Conviction for Delivery of Marijuana is not Aggravated Felony

The Ninth Circuit has determined that an Oregon conviction for delivery of marijuana is not an “illicit trafficking” aggravated felony because “solicitation to commit a trafficking offense does not fall under the definition of ‘illicit trafficking.’”

The full text of Cortes-Maldonado v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/15/18-70927.pdf

Ninth Circuit Finds that OR Conviction for Manufacture or Delivery of Marijuana is Divisible

The Ninth Circuit has determined that an Oregon conviction for manufacturing or delivering marijuana is divisible between delivery and manufacture. Applying the modified categorical approach, the court determined that the petitioner was convicted of manufacturing marijuana, a felony offense under the Controlled Substance Act (CSA). The court recognized that delivery of marijuana would not be an aggravated felony because Oregon delivery offenses include solicitation offenses, which are not criminalized in the CSA.

The full text of Dominguez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/21/18-72731.pdf

Ninth Circuit Finds that Oregon Third-Degree Robbery is not Theft Offense

The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is not a theft aggravated felony 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. “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.” “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.”

“Consequently, even with the additional robbery elements, the text of the statute expressly includes situations 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. 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.”

The full text of Lopez-Aguilar v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/28/17-73153.pdf

BIA Finds that OR Menacing Conviction is a CIMT

The Board of Immigration Appeals (Board) has determined that an Oregon conviction for menacing is a crime involving moral turpitude. In so doing, the Board has stated that the element of actual inflicted fear is not necessary to determine that a crime categorically involves moral turpitude where the statute requires evil or malicious intent, and the level of threatened harm, or magnitude of menace implicit in the threat, is serious and immediate.

The full text of Matter of J-G-P- can be found here:

https://www.justice.gov/eoir/file/1208861/download

Ninth Circuit Withdraws Opinion in Lopez-Aguilar

The Ninth Circuit has granted a motion for panel rehearing and withdrawn its opinion in Lopez-Aguilar v. Barr, in which it determined that an Oregon third-degree robbery conviction is a theft offense.

My original blog post on Lopez-Aguilar can be found here:

http://www.sabrinadamast.com/journal/2019/4/27/ninth-circuit-finds-that-or-3d-deg-robbery-conviction-is-theft-offense

The order granting the motion for rehearing can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/29/17-73153.pdf

Ninth Circuit Finds that OR First-Degree Armed Robbery is not Violent Felony

The Ninth Circuit has determined that an Oregon conviction for first-degree armed robbery is not a violent felony under the Armed Career Criminal Act (ACCA) because the statute does not require the defendant to overcome resistance by the victim through the use of force, but rather, the victim need not feel much of anything during the offense. In addition, although the statute requires the defendant to possess a deadly weapon during the commission of the robbery, the statute does not require the use of the weapon or that the defendant make any representations about the weapon. As such, the court found that the mere possession of the deadly weapon did not amount to the threatened or attempted use of violent force.

The court also assumed that the statute is divisible between offenses where the defendant “Is armed with a deadly weapon” and offenses where the defendant “uses or attempts to use a dangerous weapon.” The records did not specify under which sub-statute the petitioner was convicted in this matter.

Given the similarity between the definition of a violent felony under the ACCA and the definition of a crime of violence in the immigration context, this case may have persuasive value in immigration litigation.

The full text of United States v. Shelby can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/19/18-35515.pdf

Ninth Circuit Finds that Oregon Strangulation Conviction is Crime of Violence

The court determined that an Oregon conviction for strangulation constitutes a crime of violence. The court found no evidence that Oregon state courts had extended the statute to include non-violent conduct. “It is difficult to imagine how a defendant could apply enough force to impede normal functions without exerting physical force that is ‘capable of hurting or causing injury.’”

The panel also concluded that the BIA misapplied the relevant factors for determining in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the agency to examine the type of sentence imposed.

The full text of Flores-Vega v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/02/14-70690.pdf

Ninth Circuit Defers to BIA's Determination that Categorical Approach does not Apply to Violation of a Protective Order Ground of Deportability

The Ninth Circuit has deferred to the Board of Immigration Appeals’ (BIA) decisions in Matter of Medina-Jimenez and Matter of Obshatko and concluded that the categorical approach does not apply to the analysis of whether a conviction related to violating a protective order disqualifies an applicant from cancellation of removal for non-lawful permanent residents. “The presence of the word ‘convicted’ in § 1229b(b)(1)(C) and its absence from § 1227(a)(2)(E)(ii), renders the statutory language ambiguous regarding whether the categorical approach applies to determining whether an alien is removable under § 1229b(b)(1)(C) for violating a protection order under § 1227(a)(2)(E)(ii).” “The BIA’s two-step inquiry for determining whether an alien is ineligible for cancellation of removal based on a violation of a protection order is consistent with the statutory language and is a reasonable interpretation: whether the alien has been ‘convicted’ as defined by § 1101(a)(48)(A); and whether a state court found that the alien’s ‘offense’ involves conduct described under § 1227(a)(2)(E)(ii).”

The Ninth Circuit also agreed with the BIA that a state’s labeling of an offense as a conviction is not determinative as to whether the offense qualifies as a conviction under the immigration laws, so long as the underlying proceeding is criminal in nature. “The proceeding should at the very least comply with basic notions of procedural due process—e.g., notice and opportunity to be heard in front of an impartial tribunal.” Thus, a violation of an Oregon restraining order under the Family Abuse Prevention Act, though not considered a crime under Oregon law, meets the definition of a conviction for immigration purposes.

The full text of Diaz-Quirazco v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-72387.pdf

Ninth Circuit finds that OR 3d Deg Robbery Conviction is Theft Offense

The Ninth Circuit has concluded that an Oregon conviction for third-degree robbery is a theft-related aggravated felony. The panel concluded that section 164.395 theoretically could cover a consensual taking due to its incorporation of theft by deception, explaining that the statute does not require that force be used or threatened against the owner of the property. The panel observed that, for example, the statute could theoretically apply to a situation where a person obtained property from its owner, by deception, and then used force against a third party. However, the panel concluded that there is no realistic probability that Oregon would prosecute such conduct under the statute.

Dissenting, Judge Berzon disagreed with the majority’s conclusion that Lopez-Aguilar was required to establish a realistic probability that the statute would be applied in a nongeneric manner. Judge Berzon wrote that, under the circuit’s case law, Lopez-Aguilar was not required to establish such a realistic probability because section 164.395’s text is on its face broader than a generic theft offense under the Immigration and Nationality Act.

This decision has both positive and negative take aways. The positive take away is the idea that robbery through deception might not fall within the definition of a theft offense - an argument that has not yet prevailed with respect to other robbery offenses in the Ninth Circuit (such as California’s robbery statute).

“Because the statute does not require that force be used or threatened against the owner of the property, the text of the statute could theoretically cover situations involving consensual takings. For example, under subsection (a), a defendant could be convicted if he entered a residential building, obtained property from a resident through deception, and used force against a security guard on his way out of the building in order to retain the property. Under subsection (b), a defendant could be convicted if she convinced an owner, by deception, to give her property but used force against a third party to compel that third party to deliver the consensually obtained property to her. In either scenario, the property would have been taken by 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.

However, these two scenarios represent merely theoretical – not realistic – possibilities. Indeed, under subsection (a), the threat or force must be used ‘immediately after the taking.’ Therefore, it is unlikely that a defendant would be convicted for using or threatening force against a third party unless the force occurred in the presence of the owner, which would negate consent.”

The negative take away is the application of the realistic probability test. Judge Berzon’s dissent is spot on - the Ninth Circuit has consistently held that the plain text of the statute is enough to establish a realistic probability. The majority’s analysis tries to get around the text of the statute by using other parts of the statute as limits on the statute’s text, but really only seems to be able to negate about of the relevant overbroad text.

The full text of Lopez Aguilar v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/23/17-73153.pdf

Ninth Circuit finds that OR Third Degree Robbery Conviction is not a CIMT

The Ninth Circuit has determined that an Oregon third degree robbery conviction is not a crime involving moral turpitude because it 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. Although the court recognized that the BIA no longer requires an intent to permanently deprive to turn a theft offense into a CIMT, that precedent is not retroactive, and the conviction in the instant case predated that precedent. The court also held that although a robbery conviction requires a use of force, the minimal force required for conviction is too minimal to qualify as a CIMT.

The full text of Barbosa v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/28/15-72092.pdf

Ninth Circuit Certifies Divisibility Questions to Oregon Supreme Court

The Ninth has certified to the Oregon Supreme Court the questions of whether Oregon’s first- and second-degree robbery statutes are divisible. The court found that this question was necessary to answer before it could determine if convictions under these statutes qualify as crimes of violence.

The full text of US v. Lawrence can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/18/17-30061.pdf

Ninth Circuit finds Oregon Witness Tampering not Categorically CIMT

The Ninth Circuit has determined that Oregon's witness tampering statute is not a categorical match to the definition of a crime involving moral turpitude.  The plain text of the statute permits conviction if (1) a person induces or attempts to induce a person who is or may be called as a witness in official proceeding to offer false testimony; (2) a person induces or attempts to induce a person who is or may be called as a witness to unlawfully withhold any testimony; or (3) a person knowingly induces or attempts to induce a person to be absent from an official proceeding when the person was legally summoned. 

The statute does not suggest fraud, which the Court has defined as requiring that an individual employ false statements to obtain something tangible.  Neither impeding law enforcement nor wrongfully interfering with the administration of justice constitutes a tangible “benefit” for purposes of determining whether a crime involves fraudulent intent.  In addition, the statute does not involve an intent to injure another, an actual injury to another, or a protected class of victim.  Thus, the statute is overbroad.

"We conclude that the statute is divisible. Although both subsections (a) and (b) define the offense of witness tampering in Oregon, the subsections criminalize different conduct and require different elements for conviction."  It is thus clear from the face of the indictment and the plea agreement that Vasquez-Valle’s conviction tracked subsection (b) (inducing a person to be absent from an official proceeding).  The Court deemed this subsection not to be a crime involving moral turpitude.

The full text of Vasquez-Valle v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf

Board of Immigration Appeals Finds that Oregon Conviction for Burglary of a Dwelling is a CIMT

The Board of Immigration Appeals (BIA) has determined that an Oregon conviction for burglary of a dwelling is a crime involving moral turpitude, even though it does not require that the burglar intend to commit a morally turpitudinous act after entry.  Instead, the BIA relied on its prior rationale in Matter of Louissant that burglary of a dwelling "tears away the resident’s justifiable expectation of privacy and personal security and invites a violent defensive response from the resident."  Even though the Oregon statute does not require the dwelling to be occupied at the time of the offense, it requires to be intermittently occupied, which the BIA found sufficient to invoke the concerns of Loussaint.

The full text of Matter of J-G-D-F- can be found here:

https://www.justice.gov/eoir/page/file/990986/download

Ninth Circuit finds that Oregon Delivery of a Controlled Substance Statute is Indivisible

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is overbroad and indivisible with respect to the definition of an aggravated felony because it criminalizes solicitation offenses.  

The full text of Sandoval v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/13-71784.pdf

Ninth Circuit Address Oregon Child Sexual Abuse Statute

The Ninth Circuit has determined that section 163.427(1)(a) of the Oregon Revised Statutes is divisible, and a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony.

Section 163.427(1) provides: A person commits the crime of sexual abuse in the first degree when that person: (a) Subjects another person to sexual contact and: (A) The victim is less than 14 years of age; (B) The victim is subjected to forcible compulsion by the actor; or (C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or (b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

The question posed was whether subsections (A)-(C) where alternative elements of different crimes or merely alternative means of committing the same offense.  The court observed that "the statutory text joins the element of subjecting another person to sexual contact to one of three alternative enumerated circumstances. This phrasing suggests that the legislature created three different offenses: subjecting a victim who is less than 14 years old to sexual contact, or subjecting another person to sexual contact through the use of forcible compulsion, or subjecting another person who is incapable of consent for specified reasons to sexual contact."

The court also consulted the conviction records and noted that "because Count 3 of Diego’s state court indictment, which charged him with “unlawfully and intentionally attempt[ing] to subject [B.C.], a person less than 14 years of age, to sexual contact,” in violation of section 163.427, tracks subparagraph (1)(a)(A), but lacks any text referencing subparagraphs (1)(a)(B) or (C), the indictment 'indicate[s], by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.'  Similarly, Diego’s petition to enter a plea admits to the conduct of 'attempt[ing] to subject [B.C.] to sexual contact,' which again tracks the wording of subparagraph (1)(a)(A), in that it admits only that he subjected B.C., a victim known to be less than 14 years of age, to sexual contact. Like the indictment, the plea petition makes no reference to the conduct described in subparagraphs (1)(a)(B) or (C). From these documents, we infer that Oregon treated the victim’s age as a necessary fact that the state was required to prove beyond a reasonable doubt to secure Diego’s conviction, i.e., an element of the offense."

Finally, the court consulted state case law interpreting the statutes.  "In State v. Marshall, for example, the Oregon Supreme Court characterized 'sexual contact' and 'subjecting the victim to forcible compulsion,' a phrase specific to subparagraph 163.427(1)(a)(B), as 'the two elements of the crime.'  Similarly, in State v. Gray the Court of Appeals of Oregon described 'subjected to forcible compulsion'—the operative language of subparagraph 163.427(1)(a)(B)—as an 'element' of the crime.  The court used the same characterization in State v. Nelson. These cases point persuasively to the conclusion that the disjunctive enumerated list of subparagraphs (A) through (C) is a list of alternative elements, not means."

The full text of Diego de Diego v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/26/13-72048.pdf

Ninth Circuit Finds that Oregon Conviction for Delivery of a Controlled Substance is not an Aggravated Felony

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is not an aggravated felony.  A drug-related offense will constitute an aggravated felony if it matches the definition of a drug trafficking crime (which are any crimes that would be punishable as felonies under the Controlled Substances Act) or an illicit trafficking offense (which requires a commercial dealing to underpin the conviction).  The Oregon statute criminalizes mere solicitation, or an offer to deliver a controlled substance.  The Controlled Substance Act does not include solicitation offenses, and thus, the Oregon statute does not match the definition of a drug trafficking crime.  In addition, there is no commercial dealing required by the statute, and thus, it does not match the definition of an illicit trafficking offense.  Finally, because the definition of attempt within the statute is indivisible with respect to solicitation offenses, the modified categorical approach should not be employed.

The full text of Sandoval v. Yates can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/27/13-71784.pdf