FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUDWIN ISRAEL LOPEZ-AGUILAR, No. 17-73153 Petitioner, Agency No. v. A074-394-680 WILLIAM P. BARR, Attorney General of the United States, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2019 Portland, Oregon Filed January 28, 2020 Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, * Chief District Judge. Opinion by Judge Berzon; Concurrence by Judge Graber * The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. 2 LOPEZ-AGUILAR V. BARR SUMMARY ** Immigration The panel granted Ludwin Israel Lopez-Aguilar’s petition for review of a decision of the Board of Immigration Appeals, which found him removable based on his robbery conviction under Oregon Revised Statutes section 164.395, and held that section 164.395 is not a categorical theft offense and therefore not an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act. Comparing section 164.935 to the generic definition of theft, the panel held that section 164.935 is facially overbroad because a generic theft offense is defined as the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, whereas section 164.935 includes consensual takings via theft by deception. The panel concluded that because it is possible to commit theft by deception with the consent of the owner, Oregon’s theft statute expressly includes conduct outside of the generic definition. The panel further held that the additional robbery elements of section 164.395—namely, the use or threat of force to obtain the property—do not limit the reach of the statute to match the generic definition of theft. Noting that a force element generally implies a lack of consent, the panel pointed out that section 164.395 expressly contemplates that such force may be used to compel another person, rather than ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LOPEZ-AGUILAR V. BARR 3 the property owner, to deliver the property or to engage in other conduct which might aid the commission of the theft. For example, a defendant could be convicted if she threatened force against a third party to compel that third party to convince a property owner, by deception, to give the property to the defendant consensually. Similarly, a defendant could be convicted if the taking was consensual (although deceptive), but force was used against a third party to prevent that person from retrieving the property right after it was received by the thief. Consequently, the panel concluded that, even with the additional robbery elements, the text of the statute expressly includes situations involving consensual taking, and therefore is facially overbroad. Because the government did not argue that section 164.935 was divisible, the panel deemed the issue waived, and ended its inquiry without ...
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