DIEGO MENDOZA-GARCIA V. MERRICK GARLAND, No. 20-73583 (9th Cir. 2022)
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Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. Section 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad.
Denying in part and granting in part Petitioner’s petition for review of a decision of the BIA, the court held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Applying the categorical approach, the court first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), and expressly recognized that Cisneros had been overruled.
As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The court explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. Because the BIA committed an error of law in failing to apply the correct legal standards, the court remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards.
Court Description: Immigration. Denying in part and granting in part Diego Mendoza- Garcia’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) first-degree burglary of a dwelling under Oregon Revised Statutes section 164.225 is an aggravated felony; and (2) the BIA misapplied a presumption in determining that Petitioner’s conviction was a particularly serious crime barring withholding of removal. Petitioner was found removable on the ground that his Oregon first-degree burglary conviction was a burglary aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Petitioner argued that the Oregon statute is not a categorical match with generic burglary because it is indivisible and overbroad. Applying the categorical approach, the panel first addressed United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016), in which this court held that the same Oregon statute was not a categorical match to generic burglary because the state definition of “building” includes nonpermanent and immobile structures that were excluded from the generic definition. After Cisneros, the Supreme Court held, in United States v. Stitt, 139 S. Ct. 399 (2018), that the inclusion of nonpermanent structures “designed or adapted for overnight use” does not expand a statute beyond the definition of generic burglary. The panel concluded that MENDOZA-GARCIA V. GARLAND 3 Cisneros is clearly irreconcilable with Stitt, explaining that Oregon’s definition of “building” is not more expansive than the generic definition clarified by Stitt. Thus, the panel expressly recognized that Cisneros had been overruled. Next, the panel observed that this court has held that the Oregon first-degree burglary statute is divisible into two distinct crimes: one involving dwellings and one involving non-dwellings. Applying the modified categorical approach, the panel conducted a limited review of Petitioner’s conviction record and concluded that he had been convicted of burglary of a dwelling. The panel next concluded that Oregon first-degree burglary of a dwelling is a categorical match to generic burglary. Petitioner argued that the state statute was overbroad, but the panel concluded that all elements of the offense substantially correspond to, or are narrower than, the elements of generic burglary. Petitioner also argued that the Government did not prove by clear and convincing evidence that he was sentenced to a term of imprisonment of at least one year, as required by the definition of a burglary aggravated felony at 8 U.S.C. § 1101(a)(43)(G). The panel rejected that contention, explaining that the sentencing court unambiguously imposed a sentence of incarceration of more than one year by sentencing Petitioner to a term of 55 months in the custody of the Oregon Department of Corrections. Accordingly, the panel concluded that Petitioner was convicted of an aggravated felony for which the imposed term of imprisonment was in excess of one year, and therefore, he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). 4 MENDOZA-GARCIA V. GARLAND As to withholding of removal, the BIA applied a “presumption” that Petitioner’s conviction was a particularly serious crime barring that relief, and required him to “rebut” this presumption. The panel explained that for offenses that are not defined by statute as “per se” particularly serious crimes, the BIA has established a multi-factor test to determine on a case-by-case basis whether a crime is particularly serious, and that this court has rejected the view that there is any subset of such cases that is exempt from this multi-factor analysis based solely on the elements of the offense. The panel concluded that the BIA’s application of a rebuttable presumption here was difficult to square with these precedents and observed that the Government conceded that the BIA’s application of such a presumption appeared erroneous. Because the BIA committed an error of law, and abused its discretion, in failing to apply the correct legal standards, the panel remanded to the BIA to consider Petitioner’s application for withholding of removal under the correct standards.
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