David Flores-Vega v. William Barr, 932 F.3d 878

Background

Petitioner David Flores‑Vega, a Mexican national and lawful permanent resident, pleaded guilty in Oregon (Sept. 2009) to violating O.R.S. § 163.187(1) (strangulation) and received a suspended 365‑day sentence and 36 months’ probation. DHS initiated removal proceedings charging an aggravated felony (crime of violence).
The IJ and later the BIA held that Oregon strangulation is categorically a crime of violence under 18 U.S.C. § 16(a), making Flores‑Vega removable and categorically ineligible for asylum as an aggravated felony.
The BIA also ruled Flores‑Vega’s conviction was a “particularly serious crime,” barring withholding of removal and CAT relief; Flores‑Vega appealed to the Ninth Circuit.
The Ninth Circuit reviewed (de novo) whether the state statute matches § 16(a) under the categorical approach and (for the particularly serious‑crime determination) whether the BIA abused its discretion in applying Frentescu factors.
The court found O.R.S. § 163.187(1) (strangulation) necessarily involves the use of violent physical force and thus is a crime of violence and an aggravated felony; but it held the BIA abused its discretion in labeling the conviction a particularly serious crime because it failed to perform a case‑specific analysis and relied on maximum penalties rather than the actual sentence.
Nonetheless, the Ninth Circuit denied the petition for review because substantial evidence supported the BIA’s alternate merits denial of withholding of removal and CAT relief (no nexus to a protected ground and no showing torture by public officials more likely than not).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether O.R.S. § 163.187(1) is categorically a "crime of violence" under 18 U.S.C. § 16(a)	Flores‑Vega: statute can be applied to non‑violent conduct; conviction not necessarily § 16(a) violent force	Government: statute requires knowingly impeding breathing by applying pressure or blocking airway, i.e., violent physical force	Held: Yes — statute necessarily involves use of physical force capable of causing injury; categorical match to § 16(a)
Whether the conviction is an aggravated felony making petitioner removable and asylum‑ineligible	Flores‑Vega: not a crime of violence so not an aggravated felony	Government: conviction is a crime of violence and thus an aggravated felony under INA	Held: Yes — conviction is an aggravated felony; petitioner removable and barred from asylum
Whether the BIA permissibly found the conviction a "particularly serious crime" (bar to withholding/CAT)	Flores‑Vega: BIA failed to conduct case‑specific Frentescu analysis and relied on elements/maximum penalty rather than actual sentence or facts	Government: BIA’s conclusion supported by offense nature and potential harm	Held: BIA abused its discretion — it relied on conjecture, elements-only reasoning, and potential penalties instead of case‑specific facts and the actual sentence
Whether petitioner met burden for withholding of removal and CAT on the merits	Flores‑Vega: fear of violence/kidnapping in Mexico (gangs, land dispute, perceived U.S. ties); claimed religious identity	Government: evidence does not establish nexus to protected ground nor likelihood of torture by officials	Held: Substantial evidence supports denial — no protected‑ground nexus for withholding; no showing torture by or with acquiescence of public officials for CAT

Key Cases Cited

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding 18 U.S.C. § 16(b) unconstitutionally vague)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for prior offense analysis)
Flores‑Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (applying categorical approach in immigration context)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical matching requires every violation to meet federal definition)
Ortega‑Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (physical force must be capable of causing injury to qualify under § 16(a))
Ruiz‑Apolonio, 657 F.3d 907 (9th Cir. 2011) (realistic probability standard to show statute reaches non‑violent conduct)
Grisel, 488 F.3d 844 (9th Cir. 2007) (statute’s text can show broader reach)
Blandino‑Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (BIA cannot deem crimes particularly serious based solely on elements; case‑specific Frentescu analysis required)
Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006) (BIA must conduct case‑specific analysis for particularly serious crime determination)
Avendano‑Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (agency must rely on appropriate factors and proper evidence in particularly serious crime analysis)