FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PEDRO AGUIRRE BARBOSA, No. 15-72092 Petitioner, Agency No. v. A095-808-775 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2019 Portland, Oregon Filed March 28, 2019 Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim,* Chief District Judge. Opinion by Judge Graber; Concurrence by Judge Berzon * The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. 2 AGUIRRE BARBOSA V. BARR SUMMARY** Immigration The panel granted in part and denied in part Pedro Aguirre Barbosa’s petition for review of a decision of the Board of Immigration Appeals, and held that robbery in the third degree in violation of Oregon Revised Statutes section 164.395 is not categorically a crime involving moral turpitude. In concluding that Petitioner’s robbery conviction under section 164.395 was not categorically a crime involving moral turpitude that made him statutorily ineligible for cancellation of removal, the panel explained that section 164.395 encompasses the unauthorized use of a vehicle, which does not include as an essential element an intent to deprive the owner of his or her property permanently. The panel noted that, under longstanding BIA precedent, a theft offense was not categorically a crime involving moral turpitude if the statute criminalized a taking with intent to deprive an owner of his property only temporarily, but that the BIA had recently adopted a more expansive standard. However, the panel explained that, under this court’s precedent, the new standard did not apply retroactively to Petitioner’s case. The panel also held that, although robbery under section 164.395 involves a taking of property and the threatened or actual use of force, the minimal force required for conviction ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. AGUIRRE BARBOSA V. BARR 3 is insufficient to label the offense a crime involving moral turpitude. The panel noted that it would ordinarily proceed to deciding whether the statute is divisible, but the panel deemed the issue waived because the government did not argue that section 164.395 is divisible. The panel remanded the matter to the BIA to consider the merits of Petitioner’s request for cancellation of removal. The panel denied the petition as to Petitioner’s withholding of removal claim, concluding that Petitioner’s proposed particular social group – individuals returning to Mexico who are believed to be wealthy – is too broad to qualify as a particular social group under this court’s precedent. Concurring, Judge Berzon wrote separately to join the chorus of voices calling for renewed consideration as to whether the phrase “crime involving moral turpitude” is unconstitutionally vague. COUNSEL Nadia H. Dahab (argued), Stoll Stoll Berne Lokting & Schlachter P.C., Portland, Oregon, for Petitioner. Imran Raza Zaidi (argued), Trial Attorney; Claire L. Workman, Senior Litigation Counsel; Keith ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals