Gonzalo Dominguez v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GONZALO BANUELOS DOMINGUEZ, No. 18-72731
Petitioner,
Agency No.
v. A013-591-616
WILLIAM P. BARR, Attorney General, ORDER AND
Respondent. AMENDED
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2020 *
Portland, Oregon
Filed July 21, 2020
Amended September 18, 2020
Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit
Judges, and Kathleen Cardone, ** District Judge.
Order;
Opinion by Judge Cardone
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Kathleen Cardone, United States District Judge
for the Western District of Texas, sitting by designation.
2 DOMINGUEZ V. BARR
SUMMARY ***
Immigration
The panel filed: 1) an order denying petitioner’s motion
requesting that its prior opinion be depublished and granting
in part the alternative request to amend the opinion; and
2) an amended opinion dismissing in part and denying in part
Gonzalo Banuelos Dominguez’s petition for review of a
decision of the Board of Immigration Appeals. In the
amended opinion, the panel held that: (1) Oregon Revised
Statutes (“ORS”) § 475.992(1)(a), which criminalizes
manufacture or delivery of a controlled substance, is
divisible as between its “manufacture” and “delivery” terms;
(2) a conviction under that statute is an aggravated felony;
(3) the BIA did not err in finding Dominguez’s
§ 475.992(1)(a) conviction to be a particularly serious crime
barring withholding of removal; and (4) the notice provided
to Dominguez of his removal hearing was sufficient to vest
the immigration judge with jurisdiction.
At the time of Dominguez’s conviction, ORS
§ 475.992(1)(a) made it unlawful to “manufacture or
deliver” a controlled substance. Applying the three-step
process set out in Descamps v. United States, 570 U.S. 254
(2013), the panel first explained that the relevant generic
offense—an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B)—includes drug trafficking crimes, which
include felony offenses under the Controlled Substances
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DOMINGUEZ V. BARR 3
Act. One such felony offense is manufacture of a controlled
substance.
At the second step, the panel explained that, under
Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), ORS
§ 475.992(1)(a) is not a categorical match to a federal drug
trafficking crime because the Oregon statute’s definition of
“deliver” includes solicitation, but the Controlled
Substances Act’s definition of “deliver” does not, making
the Oregon statute broader than the federal generic crime.
At the third step, the panel concluded that ORS
§ 475.992(1)(a) is divisible as between its “manufacture”
and “deliver” terms such that the modified categorical
approach applied. The panel explained that the statute and
its interpretation by Oregon courts demonstrate that the
phrase “manufacture or deliver” lists alternative elements
defining multiple offenses—as opposed to alternative means
of committing a single offense.
Applying the modified categorical approach, the panel
concluded that Dominguez’s § 475.992(1)(a) conviction was
a categorical match to an aggravated felony drug trafficking
offense. The panel explained that Dominguez was charged
with manufacture of marijuana under § 475.992 and that
manufacturing marijuana is a felony offense under the
Controlled Substances Act. The panel also explained that
the elements of the Oregon offense are the same as those of
the federal manufacturing offense, except that the Oregon
definition of “manufacture” includes the word “conversion.”
However, the panel concluded that there was not a realistic
probability that Oregon prosecutes conduct as “conversion”
that is not covered by the Controlled Substances Act.
Accordingly, the panel concluded that Dominguez had been
convicted of an aggravated felony that rendered him
4 DOMINGUEZ V. BARR
removable and ineligible for asylum and cancellation of
removal.
Next, the panel held that the BIA did not err in
concluding that Dominguez’s conviction was a particularly
serious crime that made him ineligible for withholding of
removal, explaining that the BIA properly applied the
applicable standard set out in Matter of Frentescu, 18 I. &
N. Dec. 244 (B.I.A. 1982).
Finally, the panel rejected Dominguez’s contention that
his notice to appear, which did not provide the date and time
of his first hearing, was insufficient to vest the immigration
judge with jurisdiction, explaining that this argument was
squarely foreclosed by Karingithi v. Whitaker, 913 F.3d
1158 (9th Cir. 2019).
COUNSEL
Jeffrey C. Gonzales, Gonzales Gonzales & Gonzales,
Portland, Oregon, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Jennifer J.
Keeney, Assistant Director; Lindsay B. Glauner, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
DOMINGUEZ V. BARR 5
ORDER
The Petitioner’s Motion for Miscellaneous Relief
(Docket Entry No. 33) requesting the opinion be depublished
is DENIED but the alternative request to amend is
GRANTED in part.
The opinion filed on July 21, 2020, and published at
965 F.3d 1091 is AMENDED by the opinion filed
concurrently with this Order.
On page 19 of the slip opinion, after the sentence
“Oregon law incorporates the federal schedule of controlled
substances. Or. Rev. Stat. § 475.005(6); State v. Ness,
635 P.2d 1025, 1029 (Or. Ct. App. 1981),” the following
footnote is added:
While incorporating the federal schedule,
Oregon law further authorizes the State
Board of Pharmacy to modify or add to
Oregon’s schedules of controlled substances.
Or. Rev. Stat. § 475.035; State v. Henry, 840
P.2d 1335, 1336 (Or. App. 1992); State v.
Eells, 696 P.2d 564, 567 (Or. App. 1985).
Because Petitioner does not argue that the
Oregon definition of “controlled substance”
is distinct from the federal definition, this
Court does not address that issue.
6 DOMINGUEZ V. BARR
OPINION
CARDONE, District Judge:
Petitioner Gonzalo Banuelos Dominguez was convicted
under Oregon law for manufacturing marijuana, a violation
of Oregon Revised Statutes (“ORS”) § 475.992(1)(a), and
subsequently charged with removability. An Immigration
Judge (“IJ”) found that Dominguez was removable as
charged because his conviction constituted an “aggravated
felony,” and Dominguez was ineligible for withholding of
removal under the Immigration and Nationality Act (“INA”)
and the Convention Against Torture (“CAT”) because he
committed a “particularly serious crime.” The Board of
Immigration Appeals (“BIA”) affirmed, and it also denied
Dominguez’s motion to terminate proceedings based on
deficient notice. Dominguez now petitions for review of the
BIA’s decision.
We consider as a matter of first impression whether ORS
§ 475.992(1)(a) is divisible as between its “manufacture”
and “delivery” terms. We find that it is, and we conclude
that the offense of conviction constitutes an aggravated
felony. Further, we hold that the BIA did not abuse its
discretion in finding Dominguez’s offense to be a
particularly serious crime and that the notice provided to
Dominguez was sufficient to vest the IJ with jurisdiction.
Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL HISTORY
Dominguez is a native and citizen of Mexico, now sixty-
three years old, who was admitted to the United States as a
lawful immigrant in 1963, a lawful permanent resident since
at least 1969. In August 2002, Dominguez was indicted on
charges of “manufacture of a schedule 1 controlled
DOMINGUEZ V. BARR 7
substance (a felony; ORS 475.992(1A)).” Count One of the
single-count Indictment alleged that Dominguez
manufactured marijuana. Dominguez entered a guilty plea
and was convicted of the charges.
On March 20, 2009, the Department of Homeland
Security (“DHS”) filed a Notice to Appear (“NTA”) with the
Portland immigration court, initiating removal proceedings
against Dominguez. The government charged Dominguez
as removable under § 237(a)(2)(A)(iii) of the INA for
conviction of an aggravated felony. Specifically, the NTA
alleges, “You were, on October 7, 2002, convicted . . . for
the offense of Manufacture/Delivery of a Controlled
Substance, to wit: Marihuana, in violation of ORS
475.9921A.” The NTA ordered Dominguez to appear on “a
date to be set” and at “a time to be set.”
One week later, DHS filed a Form I-261, bringing
additional charges of removability. The government alleged
that Dominguez was also removable under § 237(a)(2)(B)(i)
of the INA for conviction of an offense “relating to a
controlled substance.” The same day, the Immigration Court
sent Dominguez a “Notice of Hearing in Removal
Proceedings,” which stated that an initial hearing was set for
June 23, 2009, at 10:00 A.M.
Dominguez appeared before an IJ for his initial hearing
in June 2009. The removal hearing continued on November
5, 2009, when the court issued a ruling from the bench that
Dominguez’s conviction constituted an aggravated felony,
and therefore Dominguez was ineligible for asylum,
adjustment of status, and cancellation of removal. On March
20, 2012, removal proceedings continued in another hearing,
this one considering Dominguez’s claims for withholding of
removal under the INA and the CAT. The same day, the
court issued an “Oral Decision of the Immigration Judge,”
8 DOMINGUEZ V. BARR
pretermitting Dominguez’s withholding application and
denying his CAT claim.
Dominguez appealed the IJ’s decision to the BIA on
April 10, 2012. On September 17, 2013, the BIA found “the
[IJ’s] decision is insufficient to permit meaningful appellate
review,” and remanded the case to the IJ to “issue a new
decision with additional findings.” On April 2, 2014, the IJ
issued a written opinion.
The IJ made an adverse credibility determination,
finding that Dominguez’s testimony regarding the conduct
underlying his criminal conviction was “logically
implausible,” and that some of Dominguez’s in-court
testimony contradicted his prior written declaration.
Considering the first charge of removability, the IJ found
that ORS § 475.992(1) is divisible between “manufacture”
and “delivery.” 1 Implicitly applying the modified
categorical approach, the IJ found Dominguez was convicted
of a manufacturing offense and was therefore removable
because manufacturing a controlled substance is an
aggravated drug trafficking offense. The IJ also found
Dominguez removable on the second charge of
removability, concluding that his conviction was “related to
a controlled substance” based on the plain language of the
statute. Based on the finding of removability, the IJ found
Dominguez’s asylum application statutorily barred.
1
At the time of Dominguez’s conviction, ORS § 475.992(1)(a)
provided: “Except as authorized by ORS 475.005 to 475.285 and
475.940 to 475.999, it is unlawful for any person to manufacture or
deliver a controlled substance. Any person who violates this subsection
with respect to: (a) A controlled substance in Schedule I, is guilty of a
Class A felony.” Or. Rev. Stat. § 475.992(1)(a) (2002).
DOMINGUEZ V. BARR 9
Then, the IJ denied Dominguez’s withholding of
removal application. The IJ found that, based on the
underlying circumstances, Dominguez’s conviction
constituted a particularly serious crime, rendering
withholding of removal under the INA and CAT
unavailable. The IJ noted that, alternatively, she would deny
Dominguez’s withholding application for lack of a nexus to
a protected ground, even absent the aggravated felony and
particularly serious crime bar. Finally, the IJ denied
Dominguez’s CAT claim for deferral of removal as well,
finding Dominguez had not shown it was more likely than
not that he would be tortured in Mexico.
On April 28, 2014, Dominguez appealed the IJ’s
decision to the BIA. While the parties’ briefing was
pending, in February 2017, Dominguez filed a supplemental
brief requesting remand to the IJ based on Sandoval v.
Sessions, 866 F.3d 986 (9th Cir. 2017). The Sandoval
decision concerns the divisibility of the statute of
Dominguez’s conviction, ORS § 475.992(1)(a), and the BIA
ordered the parties to file supplemental briefs addressing the
case in February 2018. In July 2018, Dominguez filed a
motion to terminate proceedings based on Pereira v.
Sessions, 138 S. Ct. 2105 (2018). Dominguez argued that,
under Pereira, the lack of a date and time for the initial
hearing in his NTA was fatal to the IJ’s jurisdiction over his
case.
On September 11, 2018, the BIA issued its decision. As
to removability, the BIA found that Dominguez only
contested the aggravated felony basis for removal, waiving
any challenge to removability based on a conviction related
to a controlled substance. 2 On the aggravated felony charge,
2
Dominguez does not challenge this determination on appeal.
10 DOMINGUEZ V. BARR
the BIA affirmed the IJ’s opinion that the modified
categorical approach applies to § 475.992(1)(a) because the
statute is divisible as between “manufacture” and “delivery,”
rejecting Dominguez’s argument that Sandoval controls the
case. Applying that approach, the BIA also affirmed that
Dominguez’s manufacturing offense is a categorical match
to the generic offense of a “drug trafficking crime.” Next,
the BIA agreed with the IJ that Dominguez’s offense was a
particularly serious crime. And, the BIA found that
Dominguez failed to challenge the IJ’s denial of his CAT
claim for deferral of removal. Finally, the BIA denied
Dominguez’s motion to terminate proceedings. The BIA
found that even an NTA lacking a date and time of the initial
hearing serves to vest the IJ with jurisdiction, and the
Supreme Court’s holding in Pereira does not require a
different result.
Dominguez timely petitioned for review of the BIA’s
decision.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Dominguez’s appeal under
8 U.S.C. § 1252. “We lack jurisdiction to review ‘any final
order of removal against an alien who is removable’” for
committing an aggravated felony, retaining jurisdiction only
to review jurisdictional issues, questions of law, and
constitutional claims. Mairena v. Barr, 917 F.3d 1119, 1123
(9th Cir. 2019) (per curiam) (citation omitted). Likewise, we
lack jurisdiction over the BIA’s determination that a
petitioner committed a particularly serious crime, retaining
jurisdiction only to determine whether the BIA applied the
proper legal standard. Flores-Vega v. Barr, 932 F.3d 878,
884 (9th Cir. 2019). We have jurisdiction to review the
BIA’s denial of a motion to terminate proceedings based on
a ground other than the petitioner’s criminal conviction. See
DOMINGUEZ V. BARR 11
Flores v. Barr, 930 F.3d 1082, 1086–87 (9th Cir. 2019) (per
curiam).
We review purely legal questions de novo and review a
denial of a motion to terminate for abuse of discretion.
Aguilar Fermin v. Barr, 958 F.3d 887, 891–92 (9th Cir.
2020).
DISCUSSION
Dominguez challenges three conclusions reached by the
BIA: (1) the aggravated felony finding, (2) the particularly
serious crime finding, and (3) the denial of his motion to
reopen proceedings. We address each in turn.
A
“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” Flores-Vega,
932 F.3d at 882 (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)).
Aliens removable on aggravated felony grounds are
ineligible for asylum and for cancellation of removal. See
8 U.S.C. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i), 1229b(b)(1)(C).
Dominguez argues that his conviction under ORS
§ 475.992(1)(a) is not an aggravated felony under our
precedent.
We determine whether Dominguez’s manufacture of
marijuana conviction is an aggravated felony by applying the
three-step process set out in Descamps v. United States,
570 U.S. 254 (2013). See Lopez-Valencia v. Lynch, 798 F.3d
863, 867–68 (9th Cir. 2015). First, applying the categorical
approach established by Taylor v. United States, 495 U.S.
575 (1990), we compare the elements of the offense of the
petitioner’s conviction with the elements of a generic
offense—“i.e., the offense as commonly understood.”
12 DOMINGUEZ V. BARR
Sandoval, 866 F.3d at 988. Importantly, this step considers
only statutory definitions, not the actual conduct underlying
the conviction. Descamps, 570 U.S. at 261 (“The key, we
emphasized, is elements, not facts.”). When the elements of
the state offense are the same as, or narrower than, those of
the generic offense, the petitioner’s conviction is a
categorical match. Id. However, if the elements of the state
offense are broader than those of the generic—meaning the
state offense criminalizes conduct that the federal offense
does not—then there is no categorical match. See
Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018).
When the state statute is “overbroad,” we turn to the
second step to determine whether the statute is divisible.
Lopez-Valencia, 798 F.3d at 867–68. A statute is divisible
if it sets out elements of the offense in the alternative,
effectively containing multiple possible offenses. Romero-
Millan v. Barr, 958 F.3d 844, 847 (9th Cir. 2020). A statute
is not divisible if it only lists alternative methods of
committing a single crime. Id. If the statute is not divisible,
the inquiry ends; “a conviction under an indivisible,
overbroad statute can never serve as a predicate offense.”
Lopez-Valencia, 798 F.3d at 868 (quoting Medina-Lara v.
Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). Only when
an overbroad statute is divisible do we proceed to the final
step. Id.
If we reach this step, we apply the “modified categorical
approach.” See Villavicencio, 904 F.3d at 664. Under this
approach, we examine a limited class of documents—such
as the charging instrument, jury instructions, jury verdict, or
plea agreement—“to determine which of a statute’s
alternative elements formed the basis of the defendant’s
prior conviction.” Descamps, 570 U.S. at 262. Having
identified the underlying offense of conviction, we may then
DOMINGUEZ V. BARR 13
determine whether those elements are a match to the generic
federal offense. See Rendon v. Holder, 764 F.3d 1077, 1083
(9th Cir. 2014) (explaining that the modified categorical
approach serves the limited purpose of “helping to
implement” the categorical analysis (alterations omitted)).
1
Dominguez argues that, based on our decision in
Sandoval, ORS § 475.992(1)(a) is overbroad and indivisible
and therefore his conviction is not a categorical match to an
aggravated felony offense.
At the first step, applying the categorical approach, we
must determine the definition of the generic offense; in this
case, an aggravated felony. See Sandoval, 866 F.3d at 989.
The INA’s definition of an aggravated felony encompasses
any “illicit trafficking in a controlled substance . . . including
a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). A
drug trafficking crime is defined as “any felony punishable
under the Controlled Substances Act.” 18 U.S.C.
§ 924(c)(2).
The Controlled Substances Act, in turn, makes it
unlawful to knowingly or intentionally “manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” 21 U.S.C.
§ 841(a)(1). And, a felony is “an offense punishable by
more than one year under federal law.” Sandoval, 866 F.3d
at 989; see also 18 U.S.C. § 3559. In sum, the aggravated
felony generic offense includes drug trafficking crimes,
which include felony Controlled Substances Act offenses.
Having defined the generic offense, we determine
whether the statutory offense underlying Dominguez’s
conviction is a categorical match. Dominguez was
14 DOMINGUEZ V. BARR
convicted of violating ORS § 475.992(1)(a). That provision
makes it unlawful to “manufacture or deliver a . . . controlled
substance in Schedule I.” Or. Rev. Stat. § 475.992(1)(a)
(2002). 3
We applied the categorical approach to a conviction
under § 475.992(1)(a) in Sandoval. 866 F.3d at 988–93.
There, we considered whether a conviction for delivery of
heroin under § 475.992(1)(a) constituted an aggravated
felony. Id. We held that an offense under § 475.992(1)(a)
is not a categorical match to a drug trafficking crime under
the INA because the Oregon statute’s definition of “deliver”
includes solicitation, but the Controlled Substances Act’s
definition of “deliver” does not, making the Oregon statute
broader than the federal generic crime. Id. at 989–93. As a
result, Dominguez’s offense under § 475.992(1)(a) does not
qualify as an aggravated felony under the categorical
approach. See id.
But the analysis does not end there. While
§ 475.992(1)(a) in its entirety is not a categorical match to a
drug trafficking crime, we must determine whether the
overbroad statute is divisible. See Lopez-Valencia, 798 F.3d
at 867–68.
2
The BIA found that § 475.992(1)(a) is divisible as
between its “manufacture” and “deliver” terms. Dominguez
3
The statute has since been renumbered as § 475.752, though its
language remains the same. Compare Or. Rev. Stat. § 475.752(1)(a)
(2019) with Or. Rev. Stat. § 475.992(1)(a) (2002). Regardless, when
applying the categorical approach, we consider the law that the petitioner
was convicted of violating as it applied at the time of conviction. See
McNeill v. United States, 563 U.S. 816, 820 (2011).
DOMINGUEZ V. BARR 15
argues that the BIA’s conclusion is precluded by Sandoval.
However, the Sandoval court did not consider the divisibility
issue decided by the BIA. Rather, the Sandoval court merely
held that the Oregon statute’s definition of “deliver” was not
divisible as between solicitation and attempted delivery,
precluding application of the modified categorical approach
in that case. 866 F.3d at 993–94. Nowhere did the Sandoval
court consider the divisibility of “manufacture” from
“deliver” in ORS § 475.992(1)(a). Therefore, we review the
BIA’s determination that the statute is divisible between
these terms de novo. See id. at 988.
Looking to the plain language of the statute, § 475.992
uses disjunctive language to list two possible ways to
commit a violation: manufacturing or delivering. See Or.
Rev. Stat. § 475.992(1) (“[I]t is unlawful for any person to
manufacture or deliver a controlled substance.”). In Mathis
v. United States, the Supreme Court explained that the first
task when faced with such a statute is to determine whether
its listed items are alternative elements—defining multiple
offenses—or alternative means—defining multiple ways of
committing a single offense. 136 S. Ct. 2243, 2251–54,
2256 (2016). If there are alternative elements, the statute is
divisible between its multiple offenses and the modified
categorical approach is applied to determine which offense
the petitioner was convicted of. Id. at 2256. If there are
merely alternative means, a reviewing court cannot look to
which of the alternatives was at issue, but must apply only
the categorical approach, comparing the elements in their
entirety to the generic offense. Id.
To resolve this threshold inquiry—elements or means—
the reviewing court looks to whether state law answers the
question. Id. A state court decision, or the statute itself, may
resolve the issue. Id. For example, if the statute’s listed
16 DOMINGUEZ V. BARR
alternatives carry different punishments, they must be
elements. Id. (citing Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)). Or, some statutes specify which provisions
must be charged, identifying elements, while others may
specify that listed alternatives are only “illustrative
examples,” identifying means. Id. If state law fails to
resolve the inquiry, courts may then take a “peek” at the
record of the prior conviction for “the sole and limited
purpose of determining whether the listed items are elements
of the offense.” Id. at 2256–57 (alterations omitted) (quoting
Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)
(Kozinski, J., dissenting from denial of reh’g en banc)). If
ambiguity remains after consulting state law and the record
of conviction, then the conviction is not divisible nor a
categorical match to the generic offense. Id. at 2257 (citing
Shepard v. United States, 544 U.S. 13, 21 (2005)).
Here, the statute and its interpretation by Oregon courts
demonstrate that the phrase “manufacture or deliver” in
§ 475.992(1)(a) lists alternative elements, not means. The
statute contains separate definitions of each term. Compare
Or. Rev. Stat. § 475.005(8) (defining “deliver” and
“delivery”), with Or. Rev. Stat. § 475.005(15) (defining
“manufacture”). And, “at least under some circumstances,
the legislature has chosen to punish delivery of a controlled
substance less than it has chosen to punish manufacture.”
State v. Tellez, 14 P.3d 78, 80–81 (Or. Ct. App. 2000) (citing
Or. Rev. Stat. § 475.992(2)(b)). At the time Tellez was
decided—and the time of Dominguez’s conviction—
§ 475.992 made both delivery and manufacture of marijuana
a Class A felony. See Or. Rev. Stat. § 475.992(1)(a) (2000);
Or. Rev. Stat. § 475.992(1)(a) (2002). But, § 475.992(2)(a)
excepted delivery of marijuana as a Class B felony, and
delivery of less than an ounce of marijuana, for no
DOMINGUEZ V. BARR 17
consideration, as a Class A misdemeanor. 4 See Or. Rev.
Stat. § 475.992(2)(a)–(b) (2000); Or. Rev. Stat.
§ 475.992(2)(a)–(b) (2002). No such exceptions applied to
equivalent manufacture of marijuana violations. See Or.
Rev. Stat. § 475.992(2)(a)–(b) (2000); Or. Rev. Stat.
§ 475.992(2)(a)–(b) (2002). That manufacture and delivery
could potentially carry different punishments strongly
indicates they are alternative elements defining distinct
offenses. See Mathis, 136 S. Ct. at 2256.
Oregon case law tends to confirm this conclusion. In
Tellez, the Oregon Court of Appeals rejected the
government’s argument that “the act of slicing off an
individual-use portion of . . . tar heroin from a larger
quantity” amounts to “packaging,” and therefore
“manufacture.” 14 P.3d at 79, 81. In reaching that
conclusion, the court observed: “[T]o the extent that the
state’s argument emphasizes not the taking of the individual-
user sized portion, but the selling of it (or the intention of
selling it), that act constitutes delivery (or attempted
delivery), which is a distinct crime from manufacture.” Id.
at 81. This statement, albeit in dicta, provides at least some
indication of how Oregon courts understand the structure of
§ 475.992.
Providing further confirmation, Oregon courts allow
convictions for both manufacture and delivery arising out of
the same conduct. For example, in State v. Morgan,
951 P.2d 187 (Or. Ct. App. 1997), the Court of Appeals
4
The sentencing provisions analyzed in Tellez were subsections of
ORS § 475.992 at the time and continued to be in 2002 when Dominguez
was convicted. See Or. Rev. Stat. § 475.992(2)(a)–(b) (2002). Today,
an even broader version of this exception remains in effect but is codified
at ORS § 475B.349(1)–(3)(a) (2019).
18 DOMINGUEZ V. BARR
upheld an indictment that charged the defendants with “one
count each of delivery, possession and manufacture of a
controlled substance.” Id. at 188 & n.2. The first count of
the indictment charged delivery of marijuana and the third
count charged manufacture, specifying that each charge
arose from the same acts. Id. at 188 n.2. The court noted it
was “uncontested in this case that each of the three counts of
the indictment alleges all of the essential elements of the
relevant offense and uses the language of the appropriate
subsection of ORS 475.992.” Id. at 189. Under Oregon law,
“[w]hen the same conduct or criminal episode violates two
or more statutory provisions and each provision requires
proof of an element that the others do not, there are as many
separately punishable offenses as there are separate statutory
violations.” Or. Rev. Stat. § 161.067(1). If the phrase
“manufacture or deliver” merely listed alternative means of
violating § 475.992(1)(a), then the separate manufacturing
and delivery charges in Morgan could not be sustained as
separately punishable offenses.
There are numerous Oregon cases like Morgan that
affirmed convictions for both delivery and manufacture that
arise out of the same conduct. See, e.g., State v. Sanders,
226 P.3d 82, 83 (Or. Ct. App. 2010); State v. Russell, 60 P.3d
575, 575 (Or. Ct. App. 2002); State v. Wright, 945 P.2d
1083, 1083 (Or. Ct. App. 1997). We have previously found
such evidence probative of divisibility. See, e.g., United
States v. Martinez-Lopez, 864 F.3d 1034, 1040–43 (9th Cir.
2017) (en banc) (finding statute divisible because case law
showed that “defendants are routinely subjected to multiple
convictions under a single statute for a single act as it relates
to multiple controlled substances”). Here, too, because
Oregon defendants are routinely subjected to multiple
convictions under a single statute where manufacture and
DOMINGUEZ V. BARR 19
delivery arise from the same conduct, the statute’s
alternative provision lists elements, not means. See id.
Furthermore, even if these state law resources do not
provide a sufficiently definitive answer, then a “peek” at the
so-called Shepard documents 5 follows and provides further
confirmation. See Mathis, 136 S. Ct. at 2256. The charging
documents are an information, followed by an indictment,
charging “Count 1: Manufacture of a Schedule I Controlled
Substance (A Felony; ORS 475.992(1A)).” The factual
allegation is that “[t]he defendant, on or about 08/01/2002,
in the County of Hood River and State of Oregon, did
unlawfully and knowingly manufacture marijuana, a
controlled substance.” The only other Shepard document in
the record is the final judgment of conviction entered upon
Dominguez’s guilty plea. The judgment states that
Dominguez was convicted on Count One of the indictment.
However, the judgment lists the charge as “Count 1:
Manu/Del Cntrld sub-SC 1.” Thus, the information and
indictment “indicate, by referencing one alternative term to
the exclusion of all others, that the statute contains a list of
elements, each of which goes toward a separate crime.” Id.
at 2257. The same cannot be said, however, of the judgment.
Ultimately, between the statute itself and relevant state
court decisions, state law answers the elements versus means
question here. The two listed alternatives are defined
separately in the statute and, in narrow circumstances, could
5
The Shepard court held that a reviewing court cannot look to police
reports or complaint applications when determining whether the
modified categorical approach applies. 544 U.S. at 16. Instead, the
review of the record of conviction is limited to “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the defendant
assented.” Id.
20 DOMINGUEZ V. BARR
be punished disparately. Decisions from Oregon’s
intermediate courts of review have referred to the
alternatives as distinct crimes and approve of parallel
convictions for both “manufacture” and “delivery” arising
out of the same conduct. And, Dominguez points to nothing
aside from Sandoval—which considered a distinct and
inapplicable divisibility issue—to argue § 475.992’s
indivisibility. Even if a peek at the record were required, the
charging documents refer to one of the alternatives to the
exclusion of the other, though the judgment of conviction
refers to both. Therefore, we are sufficiently certain that “[a]
prosecutor charging a violation of [§ 475.992] must . . .
select the relevant element from its list of alternatives” and
“the jury . . . must then find that element, unanimously and
beyond a reasonable doubt.” Descamps, 570 U.S. at 272.
Accordingly, the statute is divisible as between manufacture
and delivery, and we proceed to apply the modified
categorical approach.
3
Under the modified categorical approach, we look to the
record to determine the offense of conviction. See Mathis,
136 S. Ct. at 2249. The charging documents here specify
that Dominguez was charged with manufacture under
§ 475.992. The elements of a manufacture offense under
§ 475.992(1)(a) are (1) knowingly participating in (2) the
manufacture (3) of a Schedule I controlled substance. See
State v. Miller, 103 P.3d 112, 116 (Or. Ct. App. 2004) (citing
State v. Saude, 769 P.2d 784, 785 (Or. 1989)). Oregon law
incorporates the federal schedule of controlled substances.
Or. Rev. Stat. § 475.005(6); State v. Ness, 635 P.2d 1025,
DOMINGUEZ V. BARR 21
1029 (Or. Ct. App. 1981). 6 “Manufacture” means, in
relevant part, “the production, preparation, propagation,
compounding, conversion or processing of a controlled
substance.” State v. Brown, 807 P.2d 316, 319 (Or. Ct. App.
1991) (quoting Or. Rev. Stat. § 475.005(15)).
As explained above, the generic offense definition of a
drug trafficking crime includes felony manufacture of a
controlled substance in violation of the Controlled
Substances Act. The elements of that offense are
(1) intentional or knowing (2) manufacture (3) of a
controlled substance. See Sandoval, 866 F.3d at 990.
Because marijuana is a federally controlled substance,
21 U.S.C. §§ 802(6), 812(c), manufacturing marijuana
violates the Controlled Substances Act, see 21 U.S.C.
§ 841(a)(1), and is a felony offense, see 21 U.S.C.
§ 841(b)(1)(C). The Controlled Substances Act defines
manufacture as, in relevant part, “the production,
preparation, propagation, compounding, or processing of a
drug or other substance.” 21 U.S.C. § 802(15).
“Production” is defined as “the manufacture, planting,
cultivation, growing, or harvesting of a controlled
substance.” 21 U.S.C. § 802(22). Therefore, the elements
of Dominguez’s offense are the same as those of a
manufacturing offense under the Controlled Substances Act,
except for Oregon’s inclusion of the word “conversion” in
6
While incorporating the federal schedule, Oregon law further
authorizes the State Board of Pharmacy to modify or add to Oregon’s
schedules of controlled substances. Or. Rev. Stat. § 475.035; State v.
Henry, 840 P.2d 1335, 1336 (Or. App. 1992); State v. Eells, 696 P.2d
564, 567 (Or. App. 1985). Because Petitioner does not argue that the
Oregon definition of “controlled substance” is distinct from the federal
definition, this Court does not address that issue.
22 DOMINGUEZ V. BARR
defining “manufacture.” Compare 21 U.S.C. § 802(15),
with Or. Rev. Stat. § 475.005(15).
Statutory definitions do not have to be identical to
establish a categorical match. See Moncrieffe v. Holder,
569 U.S. 184, 205–06 (2013); Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). Rather, a petitioner bears the
burden of showing that the state statute is overbroad,
meaning that it criminalizes more conduct than the generic
offense covers. Moncrieffe, 569 U.S. at 205–06. “[T]o find
that a state statute creates a crime outside the generic
definition . . . . 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.” Duenas-Alvarez, 549 U.S. at 193. The mere
presence of an additional descriptive term in the state
offense’s definition is insufficient, on its own, to meet this
burden. See, e.g., Chavez-Solis v. Lynch, 803 F.3d 1004,
1007–08 (9th Cir. 2015) (“[The petitioner] tries to make
something of the fact that the federal statute says only
‘possesses,’ not ‘possesses or controls’ . . . . But there is no
legally significant distinction between these terms.”); United
States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir.
2008) (per curiam) (“True, the Controlled Substances Act
does not use the term ‘drying,’ but the ordinary meaning of
the terms ‘production’ and ‘processing of a drug’ includes
the act of drying.”).
Here, the inclusion of the word “conversion” in Oregon’s
definition of manufacture does not criminalize any conduct
beyond the reach of the Controlled Substances Act’s
definition. There is not a realistic probability that Oregon
prosecutes conduct as conversion that is not covered by the
Controlled Substances Act’s descriptive terms, “production,
preparation, propagation, compounding, or processing.”
DOMINGUEZ V. BARR 23
21 U.S.C. § 802(15); see Reveles-Espinoza, 522 F.3d
at 1047–48. That is because conversion—changing one
controlled substance to another—still amounts to
“production,” “compounding,” and/or “processing” under
federal law. Indeed, the government points to several cases
charging conversion conduct as manufacturing under the
Controlled Substances Act—such as the conversion of a
liquid amphetamine to powdered form or the conversion of
powdered cocaine into “crack” cocaine base. See, e.g.,
United States v. Eide, 297 F.3d 701, 702, 705 (8th Cir. 2002)
(precursor chemicals to methamphetamine); United States v.
Glinton, 154 F.3d 1245, 1248, 1258 (11th Cir. 1998)
(powder cocaine to cocaine base); United States v. Beaulieu,
900 F.2d 1531, 1534 (10th Cir. 1990) (liquid amphetamine
to powder); United States v. Villegas, 899 F.2d 1324, 1339–
40 (2d Cir. 1990) (cocaine base to cocaine hydrochloride).
Therefore, although the Oregon and generic definitions of
manufacture are not identical, there is no meaningful
distinction between them because the Oregon definition is
not broader than the generic.
Accordingly, the modified categorical approach
establishes that Dominguez’s Oregon conviction for
manufacture of a controlled substance under § 475.992(1)(a)
is a categorical match with the generic drug trafficking
offense, meaning Dominguez was convicted of an
aggravated felony. The BIA did not err in affirming the IJ’s
conclusion that Dominguez’s offense constituted an
aggravated felony, rendering Dominguez removable as
charged and ineligible for asylum and cancellation of
removal.
B
In addition to being removable and ineligible for asylum,
a noncitizen convicted of a particularly serious crime is
24 DOMINGUEZ V. BARR
ineligible for withholding of removal under the INA and
CAT. Flores-Vega, 932 F.3d at 884. For asylum purposes,
an aggravated felony is per se a particularly serious crime.
Id. (citing 8 U.S.C. § 1158(b)(2)(B)(i)). However, for
withholding of removal claims, aggravated felonies are only
per se particularly serious crimes when punished by a term
of incarceration of at least five years. Id. (citing 8 U.S.C.
§ 1231(b)(3)(B)). When the petitioner is sentenced to fewer
than five years in prison, as here, there is a discretionary
inquiry into whether the crime of conviction was a
particularly serious one. See id. We have jurisdiction only
to determine whether the BIA correctly applied the proper
legal standard. Blandino-Medina v. Holder, 712 F.3d 1338,
1342–43 (9th Cir. 2013).
The applicable legal standard for a particularly serious
determination arises from Matter of Frentescu, 18 I. & N.
Dec. 244 (B.I.A. 1982). Flores-Vega, 932 F.3d at 884. That
BIA decision listed the so-called “Frentescu factors” to
analyze whether a crime is particularly serious: “[the] nature
of the conviction, the circumstances and underlying facts of
the conviction, the type of sentence imposed, and, most
importantly, whether the type and circumstances of the
crime indicate that the alien will be a danger to the
community.” 7 Id. (alteration in original) (quoting Frentescu,
18 I. & N. Dec. at 247). “In short, a crime is particularly
serious if the nature of the conviction, the underlying facts
7
In a subsequent regulation, the BIA clarified that “the final factor
does not trigger an independent inquiry” because noncitizens found to
have committed particularly serious crimes “shall be considered to
constitute a danger to the community.” Flores-Vega, 932 F.3d at 884
(quoting 8 C.F.R. § 1208.16(d)(2)); see also Gomez-Sanchez v. Sessions,
892 F.3d 985, 991 (9th Cir. 2018) (“[T]here is no statutory requirement
for a separate determination of dangerousness focusing on the likelihood
of future serious misconduct on the part of the alien.”) (citation omitted).
DOMINGUEZ V. BARR 25
and circumstances and the sentence imposed justify the
presumption that the convicted immigrant is a danger to the
community.” Delgado v. Holder, 648 F.3d 1095, 1107 (9th
Cir. 2011) (en banc).
The BIA properly applied that standard here. Both the
BIA and the IJ cited Frentescu and stated that its factors
controlled the analysis. Then, the BIA provided a reasoned
explanation for affirming the IJ’s conclusion, based on the
factors, that Dominguez committed a particularly serious
crime. The BIA considered several facts underlying
Dominguez’s conviction, including that “the respondent set
up a marijuana growing operation inside one of the
bedrooms in his home, which included special lights and
approximately 50 potted plants.” Further, the BIA noted the
IJ’s adverse credibility finding, highlighting inconsistencies
in Dominguez’s explanation “as to whether he was strictly
growing the marijuana for his own personal use or for sale.”
The BIA also considered the nature of the conviction, noting
that drug trafficking crimes in general have “devastating
effects.” Therefore, the BIA applied the proper legal
standard by analyzing the Frentescu factors on an
individualized basis. See Arbid v. Holder, 700 F.3d 379, 385
(9th Cir. 2012) (per curiam).
The BIA did not—as Dominguez argues—rely on the
elements of the crime of conviction alone in reaching its
determination. Rather, the BIA considered specific facts
about Dominguez’s case in conjunction with the nature of
the offense, thereby conducting a case-by-case analysis as
required. See Blandino-Medina, 712 F.3d at 1347–48. The
BIA did not err in affirming the IJ’s conclusion that
Dominguez committed a particularly serious crime.
26 DOMINGUEZ V. BARR
C
Lastly, a petitioner may be entitled to relief from a
defective NTA if it is shown that the Immigration Court
lacked jurisdiction. Lazaro v. Mukasey, 527 F.3d 977, 980
(9th Cir. 2008). Here, the initial NTA filed in Dominguez’s
case did not provide a specific date and time for the first
hearing. A subsequent “Notice of Hearing,” sent a week
later, supplied that information.
Dominguez argues that the BIA erred in denying his
motion to terminate proceedings because, under Pereira, the
NTA was deficient and thus the IJ was never vested with
jurisdiction.
In the time since Dominguez raised this argument, it has
been squarely foreclosed by Karingithi v. Whitaker,
913 F.3d 1158 (9th Cir. 2019). The Karingithi court held
that “Pereira was not in any way concerned with the
Immigration Court’s jurisdiction.” Id. at 1159. Therefore,
as in Karingithi, the IJ was vested with jurisdiction over
Dominguez’s case when the NTA was filed. See id. The
BIA did not abuse its discretion in denying Dominguez’s
motion to terminate proceedings for lack of jurisdiction.
CONCLUSION
Section 475.992(1)(a) is divisible between its
manufacture and delivery terms. The BIA properly applied
the modified categorical approach and correctly found that
Dominguez was convicted of manufacture of a controlled
substance, which constitutes an aggravated felony.
Dominguez is thus removable as charged. Likewise, the
BIA did not abuse its discretion in finding that Dominguez
was convicted of a particularly serious crime, nor in denying
Dominguez’s motion to terminate proceedings. Therefore,
DOMINGUEZ V. BARR 27
Dominguez is ineligible for asylum, withholding of removal,
and CAT withholding.
We DISMISS in part and DENY in part the petition for
review.