Barbosa v. Barr
926 F.3d 1053
| 9th Cir. | 2019Background
- Petitioner Pedro Aguirre Barbosa, a Mexican national, pleaded no contest in Oregon (2008) to third-degree robbery under ORS § 164.395 and later conceded removability after a 2010 NTA.
- ORS § 164.395 criminalizes use or threatened use of physical force during theft or unauthorized use of a vehicle; unauthorized use need not show intent to permanently deprive.
- An IJ denied relief; the BIA affirmed, holding § 164.395 categorically a crime involving moral turpitude (CIMT) and that Barbosa failed to prove membership in a cognizable "particular social group."
- Barbosa petitioned for review in the Ninth Circuit challenging (1) the BIA's CIMT determination and (2) the rejection of his proposed particular social group: Mexicans returning from the U.S. who are perceived as wealthy.
- Ninth Circuit: held § 164.395 is not categorically a CIMT under the theft/CIMT framework applicable to Barbosa (BIA's newer Diaz-Lizarraga standard not retroactive to his plea), but affirmed that his proposed social group is not a cognizable particular social group; remanded to BIA on cancellation of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS § 164.395 is categorically a crime involving moral turpitude (CIMT) | § 164.395 is robbery and thus a CIMT under precedent analogizing robbery/theft to CIMTs | Statute is broader than classic theft/robbery because it covers unauthorized use (temporary takings) and requires only minimal force | § 164.395 is not categorically a CIMT under the theft-based framework applicable to Barbosa (BIA's later change not retroactive) |
| Whether § 164.395 is divisible such that modified categorical approach applies | (Implicit) If divisible, courts can look to conviction record to salvage CIMT finding | Government asked remand to BIA on divisibility; court notes government did not argue divisibility on appeal | Issue waived by government; court declines to remand and treats statute as indivisible for purposes here |
| Whether Barbosa belongs to a "particular social group" (returning Mexicans perceived as wealthy) for withholding of removal | Returning Mexicans perceived as wealthy is a discrete, cognizable group facing targeted harm | BIA rejected the group as too broad and not discrete | Court affirms BIA: proposed group is not a cognizable particular social group; withholding denied |
| Constitutional challenge to term "crime involving moral turpitude" (concurring view) | The CIMT phrase is unconstitutionally vague and should be reconsidered | Stare decisis and long usage counsel caution; past decisions found phrase constitutional | Concurring judge urges renewed vagueness review, noting lack of coherent standards and recent doctrinal developments |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (framework for categorical/modified categorical approach)
- Almanza-Arenas v. Lynch, 815 F.3d 469 (en banc) (three-step CIMT/divisibility guidance)
- Mendoza v. Holder, 623 F.3d 1299 (robbery/theft as CIMT precedent)
- Nunez v. Holder, 594 F.3d 1124 (deference standard and use of precedent in CIMT analysis)
- Castrijon-Garcia v. Holder, 704 F.3d 1205 (identifying statute elements; categorical approach)
- Garcia-Martinez v. Sessions, 886 F.3d 1291 (retroactivity of BIA’s changed theft/CIMT interpretation)