Jose Diaz-Flores v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUILLERMO DIAZ-FLORES, No. 17-72563
Petitioner,
Agency No.
v. A201-240-843
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, 2020
Seattle, Washington
Filed April 6, 2021
Before: M. Margaret McKeown and Patrick J. Bumatay,
Circuit Judges, and Michael W. Mosman, * District Judge.
Opinion by Judge Bumatay
*
The Honorable Michael W. Mosman, United States District Judge
for the District of Oregon, sitting by designation.
2 DIAZ-FLORES V. GARLAND
SUMMARY **
Immigration
Denying Jose Diaz-Flores’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that the BIA permissibly concluded that first-degree
burglary of a dwelling under Oregon Revised Statutes
§ 164.225 is a crime involving moral turpitude (“CIMT”).
Applying the categorical approach, the panel first
concluded that the Oregon statute is overbroad as to intent
and as to the type of structure involved. Specifically, the
statute encompasses unlawful entry into any building,
including a commercial space, with any criminal intent, but
this court has held that burglary statutes that allow intent to
commit any crime are not categorically CIMTs, and that
burglary of a commercial, rather than residential, building
also is not categorically a CIMT.
Next, the panel concluded that the Oregon statute is
divisible. Looking to its plain text, the panel observed that
the statute appears divisible between burglary of a dwelling
on the one hand, and burglary of a non-dwelling on the other.
The panel further explained that this interpretation is
confirmed by state court cases, as well as Oregon’s jury
instructions.
Turning to the modified categorical approach, the panel
consulted Diaz-Flores’s indictment and judgment and
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DIAZ-FLORES V. GARLAND 3
concluded that his conviction for first-degree burglary was
of a dwelling, and further concluded that this precise offense
is a CIMT. The panel agreed with the BIA’s conclusion, in
the published decision in this case, that burglary constitutes
a CIMT when it requires proof that the defendant burglarized
a regularly or intermittently occupied dwelling. The panel
explained that such a crime comports with this court’s
understanding of a CIMT as an offense that is vile, base or
depraved and violates accepted moral standards, explaining
that burglary of a dwelling of this kind necessarily involves
an intrusion into the justifiable expectation of privacy and
personal security that people have in places where they
retreat at night for lodging. Accordingly, the panel
concluded that Diaz-Flores’s conviction was a CIMT that
made him ineligible for cancellation of removal.
Finally, the panel concluded that Supreme Court and
circuit precedent foreclosed Diaz-Flores’s argument that the
phrase “crime involving moral turpitude” is
unconstitutionally vague.
In a concurrently filed memorandum disposition, the
panel denied Diaz-Flores’s petition for review with respect
to his claims for asylum, withholding of removal, and
protection under the Convention Against Torture.
COUNSEL
N. David Shamloo (argued), Portland, Oregon, for
Petitioner.
Rebekah Nahas (argued), Trial Attorney; Briena L. Strippoli,
Senior Litigation Counsel; Office of Immigration Litigation,
4 DIAZ-FLORES V. GARLAND
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
BUMATAY, Circuit Judge:
The question before the court is whether a conviction for
first-degree burglary of a dwelling under Oregon Revised
Statutes § 164.225 is a crime involving moral turpitude for
immigration purposes. The petition before us argues that it
is not and that the phrase “crime involving moral turpitude”
is unconstitutionally vague anyway. We hold that the Board
of Immigration Appeals (“BIA”) permissibly concluded that
ORS § 164.225 is a crime involving moral turpitude
(“CIMT”) and that precedent forecloses the constitutional
vagueness argument. We thus deny the petition.
I.
At the age of 12, Jose Diaz-Flores, a native of Mexico,
entered the United States without inspection. Twenty years
later, Diaz-Flores found himself in the Multnomah County
Jail on domestic-violence charges. An immigration officer
who was conducting routine operations at that jail
discovered that Diaz-Flores had entered unlawfully. Diaz-
Flores was then taken into Immigration and Customs
Enforcement custody. The Department of Homeland
Security later learned that Diaz-Flores had been previously
convicted of first-degree burglary in Oregon twice in the
span of three years. See ORS § 164.225.
DHS then initiated removal proceedings, charging Diaz-
Flores as removable as an alien present without admission or
parole, 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who has
DIAZ-FLORES V. GARLAND 5
been convicted of a crime involving moral turpitude,
8 U.S.C. § 1182(a)(2)(A)(i)(I). Diaz-Flores conceded the
first charge of removability but denied the second. He also
sought cancellation of removal, asylum, withholding of
removal, and protection under the Convention Against
Torture (“CAT”).
The immigration judge sustained the charge of
removability for conviction of a crime involving moral
turpitude on the grounds that ORS § 164.225 constituted
such a crime. The IJ then held that the conviction rendered
him statutorily ineligible for cancellation of removal. See
8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). The IJ also
denied his request for asylum, withholding of removal, and
CAT protection.
In a published decision, the BIA affirmed, concluding
that first-degree burglary of a dwelling under ORS § 164.225
is a crime involving moral turpitude. The BIA also affirmed
the denial of all relief from removal.
Diaz-Flores petitioned for this court’s review. We have
jurisdiction to decide the question of law that Diaz-Flores
raises: whether his conviction of first-degree burglary under
Oregon law qualifies as a crime involving moral turpitude.
See 8 U.S.C. § 1252(a)(2)(D); Robles-Urrea v. Holder,
678 F.3d 702, 707 (9th Cir. 2012). We review that question
de novo. Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118
(9th Cir. 2020). 1
1
In a concurrently filed memorandum disposition, we address Diaz-
Flores’s asylum, withholding of removal, and CAT claims.
6 DIAZ-FLORES V. GARLAND
II.
To determine whether a particular conviction is of a
“crime involving moral turpitude,” we rely on the now-
familiar categorical and modified-categorical approaches
described in Taylor v. United States, 495 U.S. 575, 600–02
(1990), and Descamps v. United States, 570 U.S. 254, 257
(2013). Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020).
These approaches are “best understood as a task of statutory
matching—we ask whether the statutory elements of the
crime of conviction match the elements of the generic
offense which serves as the basis for removal.” Id.We note that referring to a “generic” definition of a
“crime involving moral turpitude” is somewhat of a
misnomer since there is no such crime in the United States
Code. See Ceron v. Holder, 747 F.3d 773, 786 (9th Cir.
2014) (Bea, J., dissenting). Federal immigration law offers
no assistance either; the Immigration and Nationality Act
neither defines moral turpitude nor provides any rules for
determining whether a crime involves moral turpitude. See
8 U.S.C. § 1182(a)(2)(A)(i)(I). Through our precedents, we
have settled on an understanding that a crime involving
moral turpitude is one that is “vile, base, or depraved” and
“violates accepted moral standards.” Ramirez-Contreras v.
Sessions, 858 F.3d 1298, 1304 (9th Cir. 2017). 2 Yet,
2
We question how the definition of crime involving moral turpitude
became so unwieldy. According to the Supreme Court, the term “moral
turpitude” has “deep roots in the law,” but, at least as of 1951, courts had
invariably interpreted it to mean crimes with “fraud” as an “ingredient.”
Jordan v. De George, 341 U.S. 223, 227 (1951). The expansion of its
definition beyond such crimes has led to a “chorus of voices calling for
renewed consideration as to whether the phrase ‘crime involving moral
turpitude’ is unconstitutionally vague.” Barbosa v. Barr, 926 F.3d 1053,
DIAZ-FLORES V. GARLAND 7
because even that definition offers a poor delineation of
criminal elements, we generally compare the state offense to
crimes that have previously been found to involve moral
turpitude. Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.
2010). With this legal framework in mind, we turn to
whether ORS § 164.225 is a crime involving moral
turpitude.
A.
At the first step, we must decide whether first-degree
burglary is a categorical match to a CIMT or if it is
overbroad. The Oregon law provides:
A person commits the crime of burglary in
the first degree if the person violates ORS
164.215 [second-degree burglary] 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 ORS 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.
1060 (9th Cir. 2019) (Berzon, J., concurring). As discussed below, we
are foreclosed from so ruling.
8 DIAZ-FLORES V. GARLAND
ORS § 164.225(1) (emphasis added). In turn, Oregon’s
second-degree burglary statute makes it a crime to “enter[]
or remain[] unlawfully in a building with intent to commit a
crime therein.” Id. § 164.215(1). A “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). A “building” is
expansively defined, bearing its “ordinary meaning,” yet
also includes “any booth, vehicle, boat, aircraft or other
structure adapted for overnight accommodation of persons
or for carrying on business therein.” Id. § 164.205(1).
We have previously held that burglary does not
categorically constitute a crime involving moral turpitude.
In Cuevas-Gaspar v. Gonzales, we considered the intent
necessary for a burglary to be deemed morally turpitudinous.
430 F.3d 1013, 1020 (9th Cir. 2005), abrogated on other
grounds by Holder v. Martinez Gutierrez, 566 U.S. 583(2012). First, we’ve considered the intent necessary for a
burglary to be deemed morally turpitudinous. We noted that
the BIA at the time only considered a burglary a CIMT if the
underlying crime that the burglar intended to commit was
itself a crime of moral turpitude. Id. (relying on Matter of
M-, 2 I. & N. Dec. 721, 723 (BIA 1946)). We then ruled that
burglary statutes that allow intent for any crime are not
categorically crimes involving moral turpitude. Id. 3 We
3
We note that Cuevas-Gaspar does not control our decision here.
In that case, we focused only on whether the intended crime in the
burglary was itself an immoral crime. 430 F.3d at 1020. We had no
occasion to address the question here: whether burglary of a dwelling, as
defined by Oregon law, can be a crime involving moral turpitude even
when the predicate crime is not. Nothing in Cuevas-Gaspar forecloses
that the burglary of a regularly or intermittently occupied dwelling is
categorically a crime involving moral turpitude. See Plaut v. Spendthrift,
DIAZ-FLORES V. GARLAND 9
have also held that burglary of a commercial, rather than a
residential, building isn’t categorically a crime involving
moral turpitude. See Hernandez-Cruz v. Holder, 651 F.3d
1094, 1107 (9th Cir. 2011) (holding that burglary not
involving a residence is not a CIMT). As discussed further
below, unlawfully entering someone’s residential dwelling
implicates safety and privacy concerns unlike a commercial
or non-residential space.
Based on these precedents, Oregon’s first-degree
burglary statute is overbroad as to intent and as to the type
of structure involved. ORS § 164.215(1). The law
proscribes any unlawful entry into any “building,” including
a commercial space, with any criminal intent. Id. For
example, a vandal may use an oxygen lance to break into an
aircraft to graffiti the inside of the airplane. That person
could be convicted of first-degree burglary. See ORS
§§ 164.225 (first-degree burglary), 164.205 (“building”
includes aircraft), 164.235 (categorizing an “oxygen lance”
as a burglary tool). But our hypothetical criminal would not
have committed the type of burglaries condemned as a crime
involving moral turpitude: the location of the burglary was
not a dwelling and the predicate crime of vandalism is not
itself one involving moral turpitude. 4 This means that
Oregon’s statute is not a categorical match. See Taylor,
495 U.S. at 591 (recognizing that California’s burglary
514 U.S. 211, 232 n.6 (1995) (“Of course the unexplained silences of our
decisions lack precedential weight.”).
4
That said, vandalism might be considered a crime of moral
turpitude if committed to benefit a criminal street gang. See Matter of
E.E. Hernandez, 26 I. & N. Dec. 397, 397 (BIA 2014). But see
Hernandez-Gonzalez v. Holder, 778 F.3d 793, 806–07 (9th Cir. 2015)
(refusing to defer to Matter of Hernandez and calling its reasoning into
doubt).
10 DIAZ-FLORES V. GARLAND
statute would be overbroad because its elements could
hypothetically encompass mere shoplifting).
B.
Since Oregon’s first-degree burglary statute is
overbroad, we must therefore decide whether it is a divisible
crime. See Mathis v. United States, 136 S. Ct. 2243, 2249
(2016) (Sometimes “[a] single statute may list elements in
the alternative, and thereby define multiple crimes.”). We
hold that it is.
By its plain text, the statute appears divisible between
burglary of a dwelling on the one hand, and burglary of a
non-dwelling on the other. A defendant can be convicted of
ORS § 164.225 with proof that he unlawfully entered a
building with intent to a commit a crime and either: (a) the
building was a “dwelling,” or (b) one of other enumerated
aggravating factors is present. Thus, the statute facially
houses two different crimes under one roof.
Still, a statute’s plain text can be deceiving when it
comes to divisibility. See Ramirez v. Lynch, 810 F.3d 1127,
1135 (9th Cir. 2016) (“[T]he mere use of the disjunctive term
‘or’ does not automatically make a statute divisible.”)
(simplified). But here our plain-text interpretation is
confirmed by state court cases treating burglary of a
dwelling as a distinct crime, for which “dwelling” is an
element that must be proven beyond a reasonable doubt.
See, e.g., State v. Taylor, 271 Or. App. 292, 296–97 (2015).
And any lingering questions about the statute’s divisibility
are dispelled by Oregon’s jury instructions. See Almanza-
Arenas v. Lynch, 815 F.3d 469, 482 (9th Cir. 2016) (en banc)
(holding that we “need not go beyond California’s pattern
criminal jury instructions” to resolve divisibility). The
instructions not only separately identify these alternative
DIAZ-FLORES V. GARLAND 11
elements, there are also separate instructions altogether for
the two different crimes. Compare Oregon Uniform
Criminal Jury Instruction § 1901 (2013) (first-degree
burglary of a dwelling), with id. § 1902 (first-degree
burglary of a non-dwelling). For these reasons, we are
satisfied that Oregon’s first-degree burglary statute is
divisible between two distinct crimes: (1) first-degree
burglary of a dwelling; and (2) first-degree burglary of a
non-dwelling involving an aggravating factor.
Our conclusion does not waver in the face of United
States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016). There, we
analyzed whether an ORS § 164.225 conviction was a
“violent felony,” which requires matching its elements to the
generic definition of “burglary.” Id. at 1193. We held that
first-degree burglary was indivisible because a jury need not
agree on the “type of building”: so long as it was a
“dwelling,” the jury could convict. Id. at 1194–96 (emphasis
added). 5 In other words, the statute was not divisible as to
type of building, which was essential for matching the
federal definition of “burglary.” Here, the question is
whether Diaz-Flores’s conviction was a “crime involving
moral turpitude.” Cisneros says nothing about whether the
statute is divisible between dwelling and non-dwelling
burglaries for that inquiry.
Because Oregon’s burglary statute is divisible between
dwelling and non-dwelling burglaries, we may turn to the
5
For example, a person could burglarize a “boat” and be convicted
of a first-degree burglary of a “dwelling” so long as the boat was
“regularly or intermittently” “occupied by a person lodging therein at a
night.” ORS §§ 164.225, 164.205(1) and (2). This makes Oregon’s first-
degree burglary statute overbroad compared to the generic federal
definition of burglary, which excludes boats and the like. Cisneros,
826 F.3d at 1194–95.
12 DIAZ-FLORES V. GARLAND
modified categorical approach and look to the record to
determine Diaz-Flores’s precise conviction under ORS
§ 164.225. See Descamps, 570 U.S. at 257 (“[T]he modified
categorical approach permits sentencing courts to consult a
limited class of documents, such as indictments and jury
instructions, to determine which alternative [element in a
divisible statute] formed the basis of the defendant’s prior
conviction.”). Consulting the indictment and judgment,
Diaz-Flores’s first conviction for first-degree burglary was
of a dwelling.
C.
Assured of Diaz-Flores’s precise offense of conviction,
we can now consider whether it involves moral turpitude. In
this case, the BIA issued a published opinion concluding that
burglary constitutes a crime involving moral turpitude when
one of the elements requires proof that the defendant
burglarized a “regularly or intermittently occupied
dwelling.” Matter of J-G-D-F-, 27 I. & N. Dec. 82, 86 (BIA
2017). We agree with the BIA that such a crime is “vile,
base, or depraved and violates accepted moral standards.”
Syed, 969 F.3d at 1017 (simplified).
Because the statute requires the burglarized dwellings be
regularly or intermittently occupied, a conviction will
necessarily involve an intrusion onto the “justifiable
expectation of privacy and personal security” that people
have in the places where they retreat at night for lodging.
Matter of J-G-D-F-, 27 I. & N. Dec. at 88. Appreciation for
the sanctity of the home is both basic and widespread. As
the Supreme Court has recognized, a victim’s presence
renders burglary particularly worthy of moral condemnation.
See James v. United States, 550 U.S. 192, 203 (2007) (“The
main risk of burglary arises not from the simple physical act
of wrongfully entering onto another’s property, but rather
DIAZ-FLORES V. GARLAND 13
from the possibility of a face-to-face confrontation between
the burglar and a third party[.]”), overruled on other grounds
by Johnson v. United States, 576 U.S. 591 (2015). Oregon
state courts have also noted that “[t]he reason that invading
a ‘dwelling’ is made a more serious crime is to ‘[protect]
against invasion of premises likely to terrorize occupants.’”
State v. Davis, 281 Or. App. 855, 865 (2016) (quoting State
v. Ramey, 89 Or. App. 535, 538 (1988)).
Even if the burglar happens to break in when the victim
is not home, the sanctity of the home has still been violated.
“[A]n individual’s expectation that her dwelling will remain
private, secure, and free from intruders intending to commit
a crime is violated regardless whether the dwelling is
occupied at the time of the burglary.” Uribe v. Sessions, 855
F.3d 622, 626–27 (4th Cir. 2017) (classifying an analogous
Maryland burglary statute as a CIMT); see also California v.
Ciraolo, 476 U.S. 207, 213 (1986) (recognizing concern for
privacy is “most heightened” in a person’s home, “both
physically and psychologically”).
And contrary to Diaz-Flores’s argument, construing
ORS § 164.225 as a CIMT is a natural extension of prior
BIA precedents regarding crimes of moral turpitude. In
Matter of Louissaint, 24 I. & N. Dec. 754, 758–59 (BIA
2009), the BIA determined that a Florida burglary statute,
which required proof that the dwelling was occupied at the
time of the invasion, was a crime involving moral turpitude.
The BIA reasoned that, by engaging in this criminal conduct,
“the burglar tears away the resident’s justifiable expectation
of privacy and personal security and invites a violent
defensive response from the resident.” Id.Although the victim need not be present at the time of
the invasion, the Oregon statute does require that the
dwelling be one that “regularly or intermittently is occupied
14 DIAZ-FLORES V. GARLAND
by a person lodging therein at night.” See ORS
§§ 164.205(2), 164.225. This element increases the chances
that the victim will be present at the time of the burglary. It
was therefore a logical extension of Matter of Louissaint—
which focused on a victim’s presence as the key factor—to
treat burglaries of a regularly or intermittently occupied
dwelling as a CIMT. See also Uribe, 855 F.3d at 626–27 &
n.5 (extending Matter of Louissaint’s reasoning to analogous
Maryland burglary law).
We also find no inconsistency with Matter of M-, 2 I. &
N. Dec. 721. There, the BIA considered New York’s third-
degree burglary statute, which proscribed breaking and
entering a building with the intent to commit any crime. Id.
at 722. The BIA concluded that this burglary statute was
only a crime involving moral turpitude if the underlying
crime the burglar intended to commit was one itself. Id.
at 723. But the BIA’s reasoning turned on the statutory
definitions, which cast a wide net over a range of buildings,
including ones where no person would likely be present. For
example, the BIA worried that the statute would criminalize
“a group of boys opening the unlocked door of an abandoned
barn with the intention of playing cards in violation of one
of the many New York wagering laws.” Id. Simply put, the
BIA had no occasion in Matter of M- to address when
burglary of a dwelling is a crime involving moral turpitude.
For these reasons, we agree that Oregon’s first-degree
burglary statute, when involving a dwelling, is a “crime
involving moral turpitude” under § 1182(a)(2)(A)(i)(I). 6
6
In any case, our precedent commands that we grant Chevron
deference to a published decision of the BIA concerning a crime
involving moral turpitude. Safaryan v. Barr, 975 F.3d 976, 982 (9th Cir.
DIAZ-FLORES V. GARLAND 15
Diaz-Flores was statutorily ineligible for cancellation of
removal. See 8 U.S.C. §§ 1229b(b)(1)(C),
1182(a)(2)(A)(i)(I).
III.
Diaz-Flores also argues that the phrase “crime involving
moral turpitude” is unconstitutionally vague. Even if we
agreed with Diaz-Flores on this point, precedent binds us
from holding so. In Jordan v. De George, 341 U.S. 223, 230
(1951), the Supreme Court rejected a vagueness challenge to
the Immigration and Nationality Act’s use of that phrase.
See also Tseung Chu v. Cornell, 247 F.2d 929, 936, 938 (9th
Cir. 1957) (rejecting vagueness challenge to the phrase
where intent to defraud was an element of crime). And
although recent Supreme Court decisions have breathed new
life into the vagueness doctrine, see, e.g., Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), we have already held that
the Supreme Court has not overruled Jordan. See, e.g.,
Martinez-de Ryan v. Whitaker, 909 F.3d 247, 252 (9th Cir.
2018).
Diaz-Flores also argues that Jordan can be limited to its
facts—namely, when the crime involves fraud as an
ingredient. See Jordan, 341 U.S. at 232 (“Whatever else the
phrase ‘crime involving moral turpitude’ may mean in
peripheral cases, the decided cases make it plain that crimes
in which fraud was an ingredient have always been regarded
as involving moral turpitude.”). But our precedent
forecloses this argument as well. See Olivas-Motta v.
Whitaker, 910 F.3d 1271, 1281 (9th Cir. 2018) (rejecting
vagueness challenge to crime involving moral turpitude
2020). For the reasons stated above, the BIA certainly was not
unreasonable in its determination here.
16 DIAZ-FLORES V. GARLAND
determination for reckless endangerment conviction); Islas-
Veloz v. Whitaker, 914 F.3d 1249, 1250–51 (9th Cir. 2019)
(same for “communicating with a minor for immoral
purposes”); Ortega-Lopez v. Barr, 978 F.3d 680, 688 n.10
(9th Cir. 2020) (same for animal fighting).
IV.
For the foregoing reasons, we DENY the petition for
review.