FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID FLORES-VEGA, No. 14-70690 Petitioner, Agency No. v. A096-106-096 WILLIAM P. BARR, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 16, 2019 Seattle, Washington Filed August 2, 2019 Before: Michael Daly Hawkins and William A. Fletcher, Circuit Judges, and Richard Seeborg,* District Judge. Opinion by Judge W. Fletcher * The Honorable Richard Seeborg, United States District Judge for the Northern District of California, sitting by designation. 2 FLORES-VEGA V. BARR SUMMARY** Immigration Denying David Flores-Vega’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) Flores-Vega’s conviction under Oregon Revised Statute § 163.187(1) for “strangulation” was categorically a crime of violence aggravated felony that made him removable and ineligible for asylum; 2) the BIA abused its discretion in concluding that the conviction was a particularly serious crime that made Flores-Vega ineligible for withholding of removal; and 3) the BIA’s denial of withholding of removal and relief under the Convention Against Torture (“CAT”) was supported by substantial evidence. Under 8 U.S.C. § 1101(a)(43)(F), “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year,” constitutes an aggravated felony. Applying the categorical approach, the panel concluded that strangulation, as defined at O.R.S. § 163.187(1), is a crime of violence within the meaning of 18 U.S.C. § 16(a), which covers “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In so concluding, the panel explained that Flores-Vega had not established a realistic probability that Oregon would apply its statute to conduct falling outside the scope of § 16(a). Accordingly, the panel concluded that ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FLORES-VEGA V. BARR 3 Flores-Vega’s conviction was an aggravated felony that made him removable and ineligible for asylum. The panel concluded that the BIA abused its discretion in concluding that Flores-Vega’s conviction was also a particularly serious crime that made him ineligible for withholding of removal. The panel explained that where, as here, a withholding applicant was sentenced to fewer than five years imprisonment for an aggravated felony conviction, the BIA may determine that the conviction qualifies as a particularly serious crime. The applicable legal standard is based on a list of factors the BIA set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982). The panel concluded that the BIA misapplied the Frentescu factors in two key respects: 1) it failed to engage in a case-specific factual analysis of the circumstances and underlying facts of the conviction; and 2) it erroneously looked at the potential penalty for a violation, but the relevant factor instructs the ...
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