Ludwin Lopez-Aguilar v. William Barr , 921 F.3d 898 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUDWIN ISRAEL LOPEZ-AGUILAR, No. 17-73153
Petitioner,
Agency No.
v. A074 394 680
WILLIAM P. BARR, Attorney General
of the United States, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 5, 2019
Portland, Oregon
Filed April 23, 2019
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and John R. Tunheim, * Chief District Judge.
Opinion by Judge Tunheim;
Dissent by Judge Berzon
*
The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, sitting by designation.
2 LOPEZ-AGUILAR V. BARR
SUMMARY **
Immigration
Denying Ludwin Israel Lopez-Aguilar’s petition for
review of a decision of the Board of Immigration Appeals,
the panel held that third-degree robbery under Oregon
Revised Statutes § 164.395 is a categorical theft offense and,
therefore, an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G), and the panel concluded that the record
supported the denial of deferral of removal under the
Convention Against Torture.
The BIA concluded that Lopez-Aguilar was removable
for an aggravated felony theft offense based on his
conviction for third-degree robbery under Oregon Revised
Statutes § 164.395.
The panel explained that, in the context of aggravated
felonies, a generic theft offense is defined as (1) a taking of
property or an exercise of control over property (2) without
consent (3) with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is
less than total or permanent.
Lopez-Aguilar contended that section 164.395 is not
categorically a generic theft offense because: (1) it
incorporates theft by deception, which covers consensual
takings, and (2) it incorporates unauthorized use of a vehicle,
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ-AGUILAR V. BARR 3
which does not require an intent to deprive the owner of the
rights and benefits of ownership.
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.
The panel also concluded that the incorporation of
unauthorized use of a vehicle under Oregon Revised Statutes
§ 164.135(1)(b)-(c) into section 164.395 does not make the
statute overbroad. Lopez-Aguilar contended that Oregon’s
unauthorized use of a vehicle statute criminalizes the use of
a vehicle even where the vehicle has been temporarily and
consensually placed in the defendant’s care. However,
emphasizing that the generic definition includes a taking
where the deprivation is less than total or permanent, the
panel concluded that none of the conduct covered by
Oregon’s unauthorized use of a vehicle statute falls outside
of the generic theft offense definition.
Finally, the panel concluded that substantial evidence
supported the denial of CAT relief, explaining that the record
did not compel a finding that Lopez-Aguilar will more likely
than not face torture by his father or gang members.
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
4 LOPEZ-AGUILAR V. BARR
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. Judge
Berzon also wrote that, even if Lopez-Aguilar were required
to make that showing, Oregon case law demonstrates that
section 164.395 realistically applies to conduct falling
outside generic theft.
Therefore, Judge Berzon would hold that section
164.395 is not categorically a generic theft offense, deem the
issue of divisibility waived by the government, and grant the
petition for review.
COUNSEL
Jennifer K. Lesmez (argued), Law Offices of Jennifer
Lesmez, Allyn, Washington, for Petitioner.
Imran Raza Zaidi (argued) and Matthew A. Spurlock, Trial
Attorneys; John S. Hogan, Assistant Director; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
TUNHEIM, Chief District Judge:
Petitioner Ludwin Israel Lopez-Aguilar, a native and
citizen of Guatemala, petitions for review of a final order of
the Board of Immigration Appeals (“BIA”) finding him
removable pursuant to section 237(a)(2)(A)(iii) of the
LOPEZ-AGUILAR V. BARR 5
Immigration and Nationality Act (“INA”) because of his
conviction under Oregon Revised Statutes section 164.395
and denying his application for protection under the
Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We deny Lopez-Aguilar’s petition
because we conclude that: (1) section 164.395 is a
categorical theft offense and, therefore, an aggravated felony
under section 101(a)(43)(G) of the INA; and (2) the record
supports the BIA’s denial of CAT relief.
BACKGROUND
Lopez-Aguilar is a native and citizen of Guatemala. He
entered the United States in 1989, when he was three years
old, and became a legal permanent resident on March 12,
2001, when his application for suspension of deportation
was granted.
In Guatemala, Lopez-Aguilar’s father abused his mother
physically, sexually, and verbally. Lopez-Aguilar’s father
also abused him, starting when he was less than a year old,
and threatened to kill him. Since Lopez-Aguilar entered the
United States, he has never returned to Guatemala, but his
mother has returned twice, once for three months and once
for three weeks. Lopez-Aguilar’s father did not contact her
or bother her on those trips, and he has not tried to contact
Lopez-Aguilar since 1995. Nevertheless, Lopez-Aguilar
fears that, if he is returned to Guatemala, his father will
follow through on the threat to kill him.
Lopez-Aguilar was formerly a member of the Norteño
gang. He became affiliated with the Norteños at age 16 and
was initiated at age 18. He has numerous visible tattoos that
he believes make him identifiable as a Norteño. His role as
a Norteño involved fighting with members of rival gangs,
6 LOPEZ-AGUILAR V. BARR
including Mara Salvatrucha and Barrio 18, both of which
operate throughout Guatemala.
Lopez-Aguilar left the gang in 2009. He has not been
targeted by any gangs in the United States, and no one has
harmed or looked for him. However, he fears that he will be
targeted by police or by rival gangs, if returned to
Guatemala, because he will be recognizable as a Norteño and
seen as suspicious and a foreigner.
I. Lopez-Aguilar’s Conviction
In 2014, Lopez-Aguilar was convicted of third-degree
robbery in violation of Oregon Revised Statutes
section 164.395 and sentenced to 13 months in prison.
Section 164.395 provides:
(1) A person commits the crime of robbery in the
third degree if in the course of committing or
attempting to commit theft or unauthorized
use of a vehicle as defined in ORS 164.135
the person uses or threatens the immediate
use of physical force upon another person
with the intent of:
(a) Preventing or overcoming resistance to
the taking of the property or to retention
thereof immediately after the taking; or
(b) Compelling the owner of such property or
another person to deliver the property or
to engage in other conduct which might
aid in the commission of the theft or
unauthorized use of a vehicle.
LOPEZ-AGUILAR V. BARR 7
(2) Robbery in the third degree is a Class C
felony.
Section 164.395 incorporates Oregon’s theft definition,
which includes “theft by deception.” Or. Rev. Stat.
§ 164.015(4). It also incorporates Oregon’s Unauthorized
Use of a Vehicle statute, which criminalizes, in relevant part:
(b) Having custody of a vehicle, boat or aircraft
pursuant to an agreement between the person
or another and the owner thereof whereby the
person or another is to perform for
compensation a specific service for the owner
involving the maintenance, repair or use of
such vehicle, boat or aircraft, the person
intentionally uses or operates it, without
consent of the owner, for the person’s own
purpose in a manner constituting a gross
deviation from the agreed purpose; or
(c) Having custody of a vehicle, boat or aircraft
pursuant to an agreement with the owner
thereof whereby such vehicle, boat or aircraft
is to be returned to the owner at a specified
time, the person knowingly retains or
withholds possession thereof without consent
of the owner for so lengthy a period beyond
the specified time as to render such retention
or possession a gross deviation from the
agreement.
Or. Rev. Stat. § 164.135(1)(b)–(c).
8 LOPEZ-AGUILAR V. BARR
II. Immigration Court Proceedings
Because of Lopez-Aguilar’s robbery conviction, an
immigration judge (“IJ”) found him removable as an alien
convicted of an aggravated felony as defined in two sections
of the INA: (1) section 101(a)(43)(F), which defines crimes
of violence, and (2) section 101(a)(43)(G), which defines
theft offenses for which the term of imprisonment is at least
one year. The IJ also denied Lopez-Aguilar’s petition for
deferral of removal under the CAT. The IJ ordered Lopez-
Aguilar removed to Guatemala.
III. BIA Appeal
The BIA dismissed Lopez-Aguilar’s appeal. It disagreed
with the IJ’s conclusion that Lopez-Aguilar’s conviction
under Oregon Revised Statutes section 164.395 was for a
crime of violence under section 101(a)(43)(F) of the INA but
agreed that the conviction was for a theft offense under
section 101(a)(43)(G).
The BIA rejected Lopez-Aguilar’s argument that
section 164.395 is overbroad because it covers consensual
takings by incorporating theft by deception. The BIA
concluded that the statute also requires taking of property by
force, which negates the consensual nature of theft by
deception. Accordingly, the BIA found that Lopez-Aguilar
had not demonstrated a realistic probability that an
individual could be convicted under section 164.395 for a
consensual taking.
The BIA also rejected Lopez-Aguilar’s argument that
section 164.395 is overbroad because it covers unauthorized
use of a vehicle, which does not require an intent to deprive
the owner of the rights and benefits of ownership. The BIA
concluded that the remainder of the statute required an intent
LOPEZ-AGUILAR V. BARR 9
to prevent or overcome resistance to the taking, to retain the
property immediately after the taking, or to compel another
to deliver the property. Accordingly, the BIA found that
Lopez-Aguilar had not demonstrated a realistic probability
that an individual could be convicted under section 164.395
for unauthorized use of a vehicle without the requisite intent.
Finally, the BIA agreed with the IJ’s conclusion that
Lopez-Aguilar had not established that he would more likely
than not face a particularized risk of torture with the
acquiescence of a public official in Guatemala.
This timely petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review final orders of removal
based on a petitioner’s commission of an aggravated felony
to the extent that the petition “raises . . . questions of law.”
Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir. 2008) (per
curiam) (quoting Vizcarra-Ayala v. Mukasey, 514 F.3d 870,
872 (9th Cir. 2008)). Whether a particular offense is an
“aggravated felony” under the INA is a question of law that
we review de novo. Id.We also have jurisdiction to review the BIA’s denial of
CAT relief where, as here, “the IJ did not rely on [the
petitioner’s] conviction . . . but instead denied relief on the
merits.” Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th
Cir. 2013), abrogated on other grounds as recognized in
Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018). We
review denial of CAT relief for substantial evidence. Owino
v. Holder, 771 F.3d 527, 531 (9th Cir. 2014) (per curiam).
The substantial evidence standard is “extremely deferential,”
and we must uphold the BIA’s findings “unless the evidence
presented would compel a reasonable finder of fact to reach
10 LOPEZ-AGUILAR V. BARR
a contrary result.” Gebhart v. SEC, 595 F.3d 1034, 1043
(9th Cir. 2010) (quoting Monjaraz-Munoz v. INS, 327 F.3d
892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.
2003) (order)).
DISCUSSION
I. Section 164.395 and Generic Theft Offenses
Under the INA, a conviction for a generic theft offense
that results in a prison term of at least one year is an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(G). To
determine whether a particular conviction is for a theft
offense, we use the categorical and modified categorical
approaches of Taylor v. United States, 495 U.S. 575 (1990),
and Shepard v. United States, 544 U.S. 13 (2005). Under
those approaches, we compare Lopez-Aguilar’s statute of
conviction (Or. Rev. Stat. § 164.395) with the generic crime
of theft to determine whether the latter encompasses the
former. See Hernandez-Cruz v. Holder, 651 F.3d 1094,
1100 (9th Cir. 2011). In the context of an aggravated felony
theft offense under section 101(a)(43)(G) of the INA, the
generic crime of theft is defined as “[1] a taking of property
or an exercise of control over property [2] without consent
[3] with the criminal intent to deprive the owner of rights and
benefits of ownership, even if such deprivation is less than
total or permanent.” Id. at 1100–01 (quoting Carrillo-Jaime
v. Holder, 572 F.3d 747, 750 (9th Cir. 2009)).
Lopez-Aguilar contends that section 164.395 is not
categorically a generic theft offense because: (1) it
incorporates theft by deception, which covers consensual
takings, and (2) it incorporates unauthorized use of a vehicle,
which does not require an intent to deprive the owner of the
rights and benefits of ownership.
LOPEZ-AGUILAR V. BARR 11
A. Theft by Deception
We conclude that, although section 164.395 theoretically
could cover a consensual taking due to its incorporation of
theft by deception, there is no realistic probability that
Oregon would prosecute such conduct under the statute. To
find that a statute of conviction is broader than a generic
removable offense definition, there must be “a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007).
To be convicted under section 164.395, a defendant
must:
use[] or threaten[] the immediate use of
physical force upon another person with the
intent of: (a) Preventing or overcoming
resistance to the taking of the property or to
retention thereof immediately after the
taking; or (b) Compelling the owner of such
property or another person to deliver the
property or to engage in other conduct which
might aid in the commission of the theft or
unauthorized use of a vehicle.
Or. Rev. Stat. § 164.395(1) (emphasis added). 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
12 LOPEZ-AGUILAR V. BARR
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. 1
1
The dissent disagrees, citing State v. Tolbert for the proposition
that Oregon courts prosecute robbery in “situations involving the use of
force during flight.” 433 P.3d 501, 505 (Or. Ct. App. 2018). But the
Tolbert court also noted that “[a]bsent evidence of ‘close pursuit,’ . . .
intervening time, distance, and events may well break the link between
the theft and the subsequent use of force.” Id. at 506. In fact, the Tolbert
court reversed the defendant’s conviction because “[a]bout 10 to 15
minutes had passed” between the theft and the use of force. Id. This
case does not convince us that there is a realistic possibility that Oregon
courts would prosecute conduct falling outside the generic definition of
theft.
The dissent also cites two cases in which Oregon courts prosecuted
defendants for using force against security guards as examples of takings
followed by threats or use of force against third parties. But neither case
involved a consensual taking. See Pereida-Alba v. Coursey, 342 P.3d
70, 71 (Or. 2015); State v. Tolson, 546 P.2d 1115, 1116 (Or. Ct. App.
1976). Furthermore, Oregon treats security guards as authorized agents
of the owner. See Or. Rev. Stat. § 131.655; see also, e.g., AFSCME v.
City of Lebanon, 388 P.3d 1028, 1038 (Or. 2017) (holding that
LOPEZ-AGUILAR V. BARR 13
Moreover, Lopez-Aguilar has not presented, and we are
unable to find, any Oregon case in which a defendant was
prosecuted for conduct falling outside the generic definition
of theft. Accordingly, we find that section 164.395 is not
overbroad, qualifies as a categorical theft offense and,
therefore, constitutes an aggravated felony under
section 101(a)(43)(G) of the INA.
B. Unauthorized Use of a Vehicle
We also conclude that the incorporation of unauthorized
use of a vehicle in section 164.395 does not make it
overbroad. Lopez-Aguilar argues that subsections (b) and
(c) of Oregon’s Unauthorized Use of a Vehicle statute
criminalize use of a vehicle without the intent to deprive the
owner of the rights and benefits of ownership because they
apply when the vehicle has been temporarily and
consensually placed in the defendant’s care. See Or. Rev.
Stat. § 164.135(1)(b)–(c). However, in the context of
aggravated felonies, a generic theft offense is defined as
“[1] a taking of property or an exercise of control over
property [2] without consent [3] with the criminal intent to
deprive the owner of rights and benefits of ownership, even
if such deprivation is less than total or permanent.”
Hernandez-Cruz, 651 F.3d at 1100–01 (emphasis added)
(quoting Carrillo-Jaime, 572 F.3d at 750). None of the
employers can be liable for their employees’ conduct); Hoke v. May
Dep’t Stores Co., 891 P.2d 686 (Or. Ct. App. 1995) (holding that a
department store is liable for the wrongful acts of its security guard);
Gibson v. Safeway Stores, Inc., 764 P.2d 548 (Or. 1988) (holding that
the grocery store to which a security-guard service company assigned the
guard was his joint employer). Thus, even a conviction for a consensual
taking followed by force against a security guard would not fall outside
the generic theft definition because security guards are not third parties
under Oregon law.
14 LOPEZ-AGUILAR V. BARR
conduct covered by Oregon’s Unauthorized Use of a Vehicle
statute falls outside this definition. Accordingly, we hold
that section 164.395 qualifies as a categorical theft offense
and, therefore, as an aggravated felony under
section 101(a)(43)(G) of the INA.
II. CAT Relief
To establish eligibility for CAT relief, Lopez-Agular
must establish that, if removed to Guatemala, he will more
likely than not be tortured. See 8 C.F.R. 1208.16(c)(2).
Torture is defined as the intentional infliction of severe pain
or suffering, whether physical or mental, for purposes such
as intimidation, punishment, coercion, or discrimination, if
“inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. 1208.18(a)(1). In determining
the likelihood that an applicant will be tortured, courts must
consider “all evidence relevant to the possibility of future
torture,” including evidence that the applicant was tortured
in the past. 8 C.F.R. 1208.16(c)(3).
The BIA agreed with the IJ that Lopez-Aguilar did not
show past torture and noted that Lopez-Aguilar did not
challenge that finding on appeal. It found that Lopez-
Aguilar had not shown that he would more likely than not
face a particularized risk of torture in Guatemala at the hands
of his father or rival gangs. The BIA noted that Lopez-
Aguilar’s father had not tried to contact him since 1995,
neither Lopez-Aguilar nor his mother knew where his father
was or even if his father was alive, and his mother had
returned to Guatemala twice without incident. The BIA also
noted that Lopez-Aguilar had faced no serious problems
with rival gangs since leaving his gang, Lopez-Aguilar
testified that rival gangs in the United States had left him
alone because he told them he was no longer an active gang
LOPEZ-AGUILAR V. BARR 15
member, and Lopez-Aguilar had not shown that gangs abide
by different rules of conduct depending on their
geographical location. Finally, the BIA reviewed country
conditions evidence and expert testimony and found that
Lopez-Aguilar did not establish that he would more likely
than not be tortured by the government or that a public
official would acquiesce to harm he might endure at the
hands of private actors. The BIA’s conclusions are
supported by substantial evidence.
Even considering evidence that Lopez-Aguilar was
tortured by his father in the past, the record does not compel
a finding that his father will more likely than not torture him
upon his return. While Lopez-Aguilar suffered horrific
abuse at the hands of his father, the abuse happened when
Lopez-Aguilar was a small child. Lopez-Aguilar is now an
adult, and his father has not tried to contact him in more than
twenty years. Lopez-Aguilar’s mother, who likewise was
subjected to horrific abuse at the hands of his father, was not
contacted by his father on either of her return trips to
Guatemala. Furthermore, Lopez-Aguilar points to no
evidence in the record that any future mistreatment by his
father would be inflicted with the consent or acquiescence of
a public official or a person acting in an official capacity.
The record does not compel a finding that gang members
will more likely than not torture Lopez-Aguilar or that police
will more likely than not consent to such torture. Lopez-
Aguilar notes that his expert witness, Dr. Kirkland, testified
that he would be “caught up in violence” because of his
tattoos and that police decline to intervene in gang conflicts.
But while Dr. Kirkland concluded that Lopez-Aguilar would
likely be “harassed” by gang members, which “could rise to
the level of torture,” he did not go so far as to say that Lopez-
Aguilar was likely to be tortured by gang members.
16 LOPEZ-AGUILAR V. BARR
The record also does not compel a finding that police will
more likely than not torture Lopez-Aguilar. Dr. Kirkland
testified that police were likely to monitor, stop, and
interrogate him, but these actions may not rise to the level of
torture.
Finally, the record does not compel a finding that police
or the government would consent to Lopez-Aguilar’s torture.
While there is evidence that the Guatemalan police are
struggling to address violence, there is also evidence that the
Guatemalan government is taking active steps to combat
illegal activities. The BIA correctly noted that “a
government does not ‘acquiesce’ to torture where the
government actively, albeit not entirely successfully,
combats the illegal activities.” Del Cid Marroquin v. Lynch,
823 F.3d 933, 937 (9th Cir. 2016) (per curiam).
Ultimately, “[w]e are not free to look anew at the
testimony and then measure the soundness of the [BIA’s]
decision by what we would have found.” Donchev v.
Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009) (footnote
omitted). Evidence does not “compel the opposite
conclusion just because it would also support a different
result.” Id. Because the BIA’s denial of CAT relief is
supported by substantial evidence, we deny Lopez-Aguilar’s
petition on this ground.
CONCLUSION
We deny Lopez-Aguilar’s petition for review. Lopez-
Aguilar is removable for having committed an aggravated
felony, and the BIA permissibly concluded that Lopez-
Aguilar failed to show that he was likely to be tortured if
returned to Guatemala.
Petition DENIED.
BERZON, Circuit Judge, dissenting:
I respectfully dissent.
The majority recognizes that section 164.395 of the
Oregon Revised Statutes is, by its terms, broader than a
generic theft offense under the Immigration and Nationality
Act (INA). Concluding that Lopez-Aguilar failed to
establish a “realistic probability” the state statute would be
applied in a nongeneric manner, the majority holds that
Oregon third-degree robbery categorically constitutes
generic theft under the INA. I do not agree that Lopez-
Aguilar was required to make such a showing and, in any
event, believe that Oregon case law does establish such a
realistic probability. I would therefore hold that the state
crime is not categorically a generic theft offense. 1
I
Under the INA, theft is defined as the “taking of property
or an exercise of control over property without consent with
the criminal intent to deprive the owner of rights and benefits
of ownership, even if such deprivation is less than total or
permanent.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189
(2007) (emphasis added) (quoting Penuliar v. Gonzales,
435 F.3d 961, 969 (9th Cir. 2006)). The BIA has accordingly
1
Having concluded that third-degree robbery under section 164.395
is not categorically an aggravated theft offense, we would normally
proceed to the next step of the categorical approach—that is, divisibility.
Here, however, the government has failed to argue divisibility. I would
therefore deem this issue waived and grant Lopez-Aguilar’s petition for
review. See Aguirre Barbosa v. Barr, No. 15-72092, 2019 WL 1388298,
at *4 (9th Cir. Mar. 28, 2019) (holding that the government waived
divisibility as to whether section 164.395 constitutes a crime involving
moral turpitude). Because I would conclude that Lopez-Aguilar is not
removable, I would not address whether he is entitled to relief under the
Convention Against Torture.
18 LOPEZ-AGUILAR V. BARR
recognized that a taking with consent does not constitute a
generic theft offense. See Matter of Garcia-Madruga, 24 I.
& N. Dec. 436, 440–41 (B.I.A. 2008).
Under section 164.395 of the Oregon Revised Statutes,
third-degree robbery has three elements. First, the defendant
must “commit[] or attempt[] to commit theft or unauthorized
use of a vehicle.” Or. Rev. Stat. § 164.395(1). Second, the
defendant must, during “the course of committing or
attempting to commit” the theft or unauthorized use of a
vehicle, “use[] or threaten[] the immediate use of physical
force upon another person.” Id. Third and finally, as to the
use or threatened use of physical force, the defendant must
act with the specific intent either to “[p]revent[] or
overcom[e] resistance to the taking of the property or to
retention thereof immediately after the taking” or to
“[c]ompel[] the owner of such property or another person to
deliver the property or to engage in other conduct which
might aid in the commission of the theft or unauthorized use
of a vehicle.” Id. § 164.395(1)(a)–(b).
Here, the BIA correctly recognized that the plain text of
section 164.395 does not require that the defendant engage
in a nonconsensual taking. To the contrary, Oregon law
expressly provides that the first element—theft or attempted
theft—can be satisfied through a consensual taking. Under
section 164.015 of the Oregon Revised Statutes, “theft” is
defined as including “theft by deception,” a taking that
requires consent. Id. § 164.015. As the BIA observed here,
however, the statute’s second and third elements require the
use of force. The BIA noted that it had previously concluded,
in Matter of Ibarra, 26 I. & N. Dec. 809 (B.I.A. 2016), that
“[t]here is no meaningful difference between a taking of
property accomplished against the victim’s will and one
where his ‘consent’ to parting with his property is coerced
LOPEZ-AGUILAR V. BARR 19
through force, fear, or threats.” Id. at 811. Given the force
requirement in section 164.395, the BIA reasoned, it would
not be possible to commit third-degree robbery while
engaging in a consensual taking.
As the majority appears to recognize, the BIA misread
the statute. Section 164.395 requires only that the “use[] or
threaten[ed] . . . immediate use of physical force” be “upon
another person.” Or. Rev. Stat. § 164.395(1). That person
need not be the property owner. Thus, under the plain text of
the statute, it is possible to apply the force needed for a third-
degree robbery against a third person while engaging in a
taking that is consensual with regard to the robbery victim.
The state statute at issue in Matter of Ibarra, by contrast,
explicitly required that “the felonious taking of personal
property in the possession of another . . . against his will.”
26 I. & N. Dec. at 810 n.2 (emphasis added) (quoting Cal.
Penal Code § 211); see also id. at 812 (“[T]he jury
instructions for section 211 of the California Penal Code
require as an element that the defendant take property from
another ‘against that person’s will.’” (citation omitted)).
II
Considering the statutory text discussed above, the
majority rightly concludes that, on its face, section 164.395
defines third-degree robbery more broadly than a generic
theft offense under the INA. Under our case law, that should
have been enough. “Where . . . a state statute explicitly
defines a crime more broadly than the generic definition, no
‘legal imagination’ is required to hold that a realistic
probability exists that the state will apply its statute to
conduct that falls outside the generic definition of the
crime.” United States v. Grisel, 488 F.3d 844, 850 (9th Cir.
2007) (citation omitted) (quoting Duenas-Alvarez, 549 U.S.
at 193), abrogated on other grounds by United States v. Stitt,
20 LOPEZ-AGUILAR V. BARR
139 S. Ct. 399 (2018); accord Chavez-Solis v. Lynch,
803 F.3d 1004, 1009–10 (9th Cir. 2015). Under those
circumstances, “[t]he state statute’s greater breadth is
evident from its text.” Grisel, 488 F.3d at 850. 2
The majority instead posits that, because section 164.395
requires that force be used “immediately after the taking,” it
would be “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.” Maj. Op. at 12. The majority is incorrect.
First, to the extent the majority suggests that application
of the plain text of section 164.395 in this nongeneric
manner is possible but unlikely, that argument is foreclosed
by our case law. As long as the application of the statute’s
text in the nongeneric manner is not a logical impossibility,
the relative likelihood of application to nongeneric conduct
is immaterial. See United States v. Valdivia-Flores, 876 F.3d
1201, 1208 (9th Cir. 2017). For that reason, where “the
difference in breadth is apparent on the face of the statute,”
we have rejected arguments that a state statute “does not
‘extend significantly beyond’ its federal analogue for
purposes of categorical comparison.” Id. (emphasis added)
(quoting Duenas-Alvarez, 549 U.S. at 193); see also Cerezo
v. Mukasey, 512 F.3d 1163, 1167–68 (9th Cir. 2008). Any
nongeneric application evident from the statutory text means
that the state statute cannot be a categorical match. See
Valdivia-Flores, 876 F.3d at 1208.
2
The BIA recognized this principle but reasoned that there was an
“apparent conflict” between section 164.395’s force elements and the
possibility of theft by deception. As already discussed, there is no such
conflict.
LOPEZ-AGUILAR V. BARR 21
If the majority instead believes that section 164.395 can
never be applied in this nongeneric manner, it
misunderstands the statute. Under Oregon law, “[r]obbery
can include situations involving the use of force during
flight.” State v. Tolbert, 433 P.3d 501, 505 (Or. Ct. App.
2018). In shoplifting cases, for example, “[f]light readily
includes situations in which the thief is confronted directly
upon leaving the store, and it extends beyond the store
during fresh pursuit.” Id. Thus, contrary to the majority’s
suggestion, the force required for robbery need not be
applied “in the presence of the owner.” Maj. Op. at 12. 3
Further, Oregon law provides that force used during
flight can be applied against third parties. As the Oregon
Supreme Court has emphasized, “the term ‘victim’ is not
used in any of the robbery statutes” and “the statutes
generally only describe the person against whom force must
be used as ‘any person’ or ‘another person.’” State v.
Hamilton, 233 P.3d 432, 435 (Or. 2010). Thus, “the
legislature deliberately chose not to limit the reach of the
robbery statutes to the use of force against the owner.” Id. at
436.
Cases involving such third-party force are commonly
prosecuted. One regularly recurring scenario involves
security guards. Pereida-Alba v. Coursey, 342 P.3d 70 (Or.
2015), for example, involved a defendant who entered a
3
By allowing force used during flight to satisfy section 164.395’s
force requirement, Oregon law diverged from the common law definition
of robbery. “[U]nder the traditional view it is not robbery to steal
property without violence or intimidation (e.g., to obtain it by stealth or
fraud or sudden snatching), although the thief later, in order to retain the
stolen property or make good his escape, uses violence or intimidation
upon the property owner.” 3 Wayne R. LaFave, Substantive Criminal
Law § 20.3(e) (3d ed. 2017).
22 LOPEZ-AGUILAR V. BARR
grocery store, filled a backpack with food, and left the store
without paying. Id. at 71. When confronted by a security
guard, the defendant pulled a gun from the backpack and
pointed it at the guard. Id. at 72. The defendant was
eventually arrested and charged with first-degree robbery in
violation of section 164.415, which incorporates the
definition of third-degree robbery under section 164.395. Id.
The indictment accordingly alleged that the defendant “did
unlawfully and knowingly while in the course of committing
theft . . . use and threaten the immediate use of physical force
upon [the security guard].” Id. at 72 (alteration in original).
Likewise, in State v. Tolson, 546 P.2d 1115 (Or. Ct. App.
1976), a defendant shoplifted three pairs of pants from a
department store. Id. at 1116. Upon observing the theft,
security guards followed the defendant out of the store; the
defendant began running before she was caught by one of
the guards. Id. The defendant “fought him, using a shopping
bag, fists and one of her shoes as weapons.” Id. The Oregon
Court of Appeals held that this force was sufficient for a
second-degree robbery conviction under section 164.405,
which likewise incorporates the definition of third-degree
robbery under section 164.395. Id. at 1117. As Tolson
explained, “[i]t is not stretching the meaning of the word to
hold that, where hot pursuit continues for 455 feet with
overtaking and use of force at that point, the entire action
was ‘immediate.’” Id.The majority notes that “Oregon treats security guards as
authorized agents of the owner.” Maj. Op. at 12 n.2. Whether
that is true of the security guards in the cases discussed above
is unclear. 4 But that ambiguity simply underscores the fact
4
Whether a security guard is considered an employee of a store is a
fact-specific inquiry that depends on the degree of control exercised by
LOPEZ-AGUILAR V. BARR 23
that section 164.395 is phrased such that no analysis of
whether the force victim is the property owner is required.
See Hamilton, 233 P.3d at 435. Moreover, the principle
underlying the security-guard cases is that force used against
an intervening party is enough to trigger application of
section 164.395. There is no reason that this principle would
not also extend to a police officer, acquaintance, or other
Good Samaritan attempting to stop a theft.
To be sure, where “[t]he government contends that such
a literal application of the statute is not realistic,” we must
“consider whether [state] courts have interpreted the scope
of [the statute of conviction] more narrowly so as to make it
applicable only to conduct” consistent with the federal
analogue. Cerezo, 512 F.3d at 1167–68; accord Cortez-
Guillen v. Holder, 623 F.3d 933, 935 (9th Cir. 2010). Oregon
law does recognize that “intervening time, distance, and
events may well break the link between the theft and the
subsequent use of force.” Tolbert, 433 P.3d at 506. But that
principle does not constrain section 164.395 “so as to make
it applicable only to conduct” involving a nonconsensual
taking. Cerezo, 512 F.3d at 1167–68. Even with the
“immediately after” limitation, it is evident from the
examples discussed above that the use or threatened use of
force need not occur “in the presence of the owner” and
“negate consent,” as the majority suggests. Maj. Op. at 12.
III
Because section 164.395’s text is on its face broader than
the INA’s generic theft offense, I do not believe that Lopez-
Aguilar was required to establish a realistic probability that
the store. See Gibson v. Safeway Stores, Inc., 764 P.2d 548, 548–49 (Or.
1988).
24 LOPEZ-AGUILAR V. BARR
Oregon would apply its statute in a nongeneric manner. But
even if Lopez-Aguilar were required to make that showing,
Oregon case law demonstrates that section 164.395
realistically applies to conduct falling outside generic theft.
In determining whether there is “a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of
a crime,” Duenas-Alvarez, 549 U.S. at 193, our decisions
have not required a case involving an actual prosecution of
the state offense in a nongeneric manner. Indeed, we have
observed that, for some crimes, it is entirely possible that
“the absence of appellate decisions” should be expected,
given “the relatively light sentence that would result,”
thereby “encourag[ing] prosecutors to charge violations that
carry more substantial sentences.” United States v. Brown,
879 F.3d 1043, 1050 (9th Cir. 2018). Under those
circumstances, “[c]onvictions . . . generally result from
negotiations and guilty pleas, which do not produce
appeals.” Id.Consistent with this observation, one scholar has noted
that it would “make[] little sense” to require a state appellate
decision involving an actual prosecution of nongeneric
conduct before concluding that there is a realistic probability
that the state statute would be so applied:
Nearly all criminal cases—approximately
90 percent—are resolved through plea
bargain. And because plea agreements will
typically include a waiver of a defendant’s
appellate rights, most cases involve no
appeal. That means the cases that end up
appealed are a small fraction of total cases.
And even where there is an appeal, most
cases are disposed of in short decisions that
LOPEZ-AGUILAR V. BARR 25
come with almost no discussion of the facts
of the case. As a result, only a miniscule
percentage of all prosecutions under a
particular statute will end up producing an
appellate decision that includes a discussion
of the facts of the case. Given that fact, there
is no reason to think that the cases that end up
in an appellate decision are in any way
representative—let alone exhaustive—of the
types of cases that the state prosecutes.
Doug Keller, Causing Mischief for Taylor’s Categorical
Approach: Applying “Legal Imagination” to Duenas-
Alvarez, 18 Geo. Mason L. Rev. 625, 659–60 (2011)
(footnotes omitted).
Rather, we have concluded that the requirement that a
“realistic probability” be shown is satisfied when application
to nongeneric conduct would logically follow from the
statute’s text and applicable precedents. Chavez-Solis v.
Lynch, for example, considered whether a California
conviction for the possession of child pornography was
broader than its federal analogue. 803 F.3d at 1006.
Although both the state and federal crimes required that the
illicit material depict a minor engaging in “sexual conduct,”
the state statute’s definition of “sexual conduct” swept more
broadly. Id. at 1008. Chavez-Solis rejected the government’s
argument that there was not a “realistic probability” that the
state would apply the statute to a depiction of “sexual
conduct” under the nongeneric aspects of the statute, noting
that one state appellate decision had construed “sexual
conduct” in the nongeneric manner. Id. at 1010. Although
that state appellate decision did not involve the statute of
conviction, Chavez-Solis reasoned that prosecution for
nongeneric conduct under the statute of conviction would
26 LOPEZ-AGUILAR V. BARR
logically follow, because the state appellate decision
involved the same statutory phrase, “sexual conduct.” Id. at
1011–12.
Similarly, Medina-Lara v. Holder, 771 F.3d 1106 (9th
Cir. 2014), concluded that a California conviction for illegal
firearm possession was not a categorical match with the
generic offense for firearm possession under federal law,
because the state statute criminalized possession of antique
firearms, while the federal analogue did not. Id. at 1116.
Although there were no cases involving prosecutions under
the statute of conviction for antique firearms, Medina-Lara
noted that there were cases involving prosecutions of
antique-firearm possession under similar statutes. Id. Those
cases, Medina-Lara reasoned, logically suggested that
prosecution for antique-firearm possession under the statute
of conviction was possible, thereby establishing a realistic
probability under Duenas-Alvarez. Id.Here, two strands of Oregon case law indicate that state
courts would apply section 164.395 to a consensual taking.
First, as already discussed, it is abundantly clear that the
force required under section 164.395 can be applied against
persons other than the property owner. That fact pattern that
appears not infrequently in cases involving shoplifting. See,
e.g., Pereida-Alba, 342 P.3d at 71–72; Tolson, 546 P.2d
1116–17.
Second, the Oregon Supreme Court has noted that a
consensual taking—namely, theft by deception—can occur
during a shoplifting offense. In State v. Fonte, 422 P.3d 202(Or. 2018), a defendant on two occasions took a pair of jeans
from the sales floor of a department store and returned them
for cash. Id. at 203. On the second instance, the defendant
was stopped by security guards before he was able to leave
the store. Id. The defendant was ultimately charged with two
LOPEZ-AGUILAR V. BARR 27
counts of first-degree theft on a theory of “theft by
receiving.” Id. at 203–04. The Oregon Supreme Court noted,
however, that “[t]he facts also supported charges of theft by
deception of the money, which, given the value, would have
been a misdemeanor.” Id. at 204 n.1. Had the defendant in
Fonte used force against the security guards, as the
defendants in Pereida-Alba and Tolson had, there is at least
a realistic probability he would have been prosecuted for
robbery.
That Oregon law would allow for such a prosecution is
consistent with modern developments in the crime of
robbery. As already discussed, under the traditional common
law, “it is not robbery to steal property without violence or
intimidation,” even if “the thief later, in order to retain the
stolen property or make good his escape, uses violence or
intimidation upon the property owner.” 3 LaFave, supra,
§ 20.3(e); see also supra note 3. This limitation reflects that,
in accordance with “the general principle of criminal law . . .
that the defendant’s conduct and his state of mind must
concur,” the traditional crime of robbery required “that the
defendant’s larcenous conduct (his taking of the victim’s
property) and his violence-or-intimidation conduct . . .
concur.” 3 LaFave, supra, § 20.3(e). Because Oregon—as
well as other states—has expanded the definition of robbery
to include force during flight, “a different result is often
possible today.” Id.; see also Tolbert, 433 P.3d at 505. One
such result is that, as one treatise suggests, robbery may now
include situations when the theft has been committed “by
stealth or fraud.” 3 LaFave, supra, § 20.3(e).
IV
In sum, third-degree robbery under section 164.395 of
the Oregon Revised Statutes is, on its face, not a categorical
theft offense as defined by the INA, and that mismatch is
28 LOPEZ-AGUILAR V. BARR
confirmed by Oregon case law. Because the majority’s
application of the realistic-probability test is not only
unnecessary but also erroneous, I respectfully dissent.