Diego Mendoza-Garcia v. Merrick Garland ( 2022 )

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.