FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DIEGO MENDOZA-GARCIA, No. 20-73583 Petitioner, Agency No. v. A077-148-170 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, 2021 San Francisco, California Filed June 10, 2022 Before: Susan P. Graber and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves, * Judge. Opinion by Judge Choe-Groves * The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 MENDOZA-GARCIA V. GARLAND SUMMARY ** 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 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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 …
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