FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE GUILLERMO DIAZ-FLORES, No. 17-72563 Petitioner, Agency No. v. A201-240-843 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, 2020 Seattle, Washington Filed April 6, 2021 Before: M. Margaret McKeown and Patrick J. Bumatay, Circuit Judges, and Michael W. Mosman, * District Judge. Opinion by Judge Bumatay * The Honorable Michael W. Mosman, United States District Judge for the District of Oregon, sitting by designation. 2 DIAZ-FLORES V. GARLAND SUMMARY ** Immigration Denying Jose Diaz-Flores’s petition for review of a decision of the Board of Immigration Appeals, the panel held that the BIA permissibly concluded that first-degree burglary of a dwelling under Oregon Revised Statutes § 164.225 is a crime involving moral turpitude (“CIMT”). Applying the categorical approach, the panel first concluded that the Oregon statute is overbroad as to intent and as to the type of structure involved. Specifically, the statute encompasses unlawful entry into any building, including a commercial space, with any criminal intent, but this court has held that burglary statutes that allow intent to commit any crime are not categorically CIMTs, and that burglary of a commercial, rather than residential, building also is not categorically a CIMT. Next, the panel concluded that the Oregon statute is divisible. Looking to its plain text, the panel observed that the statute appears divisible between burglary of a dwelling on the one hand, and burglary of a non-dwelling on the other. The panel further explained that this interpretation is confirmed by state court cases, as well as Oregon’s jury instructions. Turning to the modified categorical approach, the panel consulted Diaz-Flores’s indictment and judgment and ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DIAZ-FLORES V. GARLAND 3 concluded that his conviction for first-degree burglary was of a dwelling, and further concluded that this precise offense is a CIMT. The panel agreed with the BIA’s conclusion, in the published decision in this case, that burglary constitutes a CIMT when it requires proof that the defendant burglarized a regularly or intermittently occupied dwelling. The panel explained that such a crime comports with this court’s understanding of a CIMT as an offense that is vile, base or depraved and violates accepted moral standards, explaining that burglary of a dwelling of this kind necessarily involves an intrusion into the justifiable expectation of privacy and personal security that people have in places where they retreat at night for lodging. Accordingly, the panel concluded that Diaz-Flores’s conviction was a CIMT that made him ineligible for cancellation of removal. Finally, the panel concluded that Supreme Court and circuit precedent foreclosed Diaz-Flores’s argument that the phrase “crime involving moral turpitude” is unconstitutionally vague. In a concurrently filed memorandum disposition, the panel denied Diaz-Flores’s petition for review with respect to his claims for asylum, withholding of …
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