Banuelos Dominguez v. Barr, No. 18-72731 (9th Cir. 2020)
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ORS 475.992(1)(a), which criminalizes manufacture or delivery of a controlled substance, is divisible as between its "manufacture" and "delivery" terms. The Ninth Circuit held that the BIA properly applied the modified categorical approach and correctly found that petitioner was convicted of manufacture of a controlled substance, which constitutes an aggravated felony. Therefore, petitioner is removable as charged.
The panel also held that the BIA did not abuse its discretion in finding petitioner's offense to be a particularly serious crime and that the notice provided to petitioner was sufficient to vest the IJ with jurisdiction. Consequently, petitioner is ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture. The panel dismissed in part and denied in part the petition for review.
Court Description: Immigration. Dismissing in part and denying in part Gonzalo Banuelos Dominguez’s petition for review of a decision of the Board of Immigration Appeals, 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 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 DOMINGUEZ V. BARR 3 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 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 4 DOMINGUEZ V. BARR applicable standard set out in Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982).
The court issued a subsequent related opinion or order on September 18, 2020.
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