FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GONZALO BANUELOS DOMINGUEZ, No. 18-72731 Petitioner, Agency No. v. A013-591-616 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 11, 2020 * Portland, Oregon Filed July 21, 2020 Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit Judges, and Kathleen Cardone, ** District Judge. Opinion by Judge Cardone * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 2 DOMINGUEZ V. BARR SUMMARY *** 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 *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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 ...
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