36 F.4th 989
9th Cir.2022Background
- Petitioner Diego Mendoza-Garcia, a Mexican national and U.S. lawful permanent resident, pleaded guilty in 2016 to first-degree burglary under Oregon Rev. Stat. § 164.225 (charged as burglary of a dwelling).
- He initially received 36 months’ supervised probation; after a probation violation he was committed to Oregon Department of Corrections for 55 months.
- DHS charged him removable as an alien convicted of an aggravated felony (burglary) under 8 U.S.C. § 1101(a)(43)(G) because his sentence exceeded one year.
- The IJ and BIA concluded the Oregon first-degree burglary statute matched generic burglary and denied withholding of removal (finding the conviction a particularly serious crime) and CAT relief; the BIA applied a rebuttable presumption that the conviction was particularly serious.
- The Ninth Circuit concluded Oregon first-degree burglary of a dwelling is a categorical match to generic burglary (expressly overruling United States v. Cisneros in light of Stitt), found the 55-month custodial sentence clearly imposed, denied the petition as to removability and CAT relief, but remanded withholding of removal because the BIA misapplied a presumption and failed to apply the correct multi-factor analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS § 164.225 (first-degree burglary) is a categorical match to generic burglary or is overbroad/indivisible | Mendoza-Garcia: statute is indivisible and overbroad (covers nonpermanent structures, curtilages, lawful entries exceeding scope) | Gov: statute (as applied to dwellings) matches generic burglary after Stitt; divisible between dwelling vs non-dwelling offenses | Held: Oregon first-degree burglary of a dwelling is a categorical match; Cisneros is irreconcilable with Stitt and overruled; statute is divisible as to dwelling vs non-dwelling. |
| Whether the Government proved by clear and convincing evidence that the sentence imposed was at least one year (aggravated felony requirement) | Mendoza-Garcia: sentencing language ambiguous; could be non-custodial sanctions | Gov: sentencing order committed him to ODOC for 55 months — unambiguous custodial term | Held: clear and convincing evidence supports that the court imposed 55 months’ incarceration in ODOC, satisfying the one-year requirement. |
| Whether the BIA correctly determined the burglary conviction is a "particularly serious crime" barring withholding of removal | Mendoza-Garcia: BIA misapplied law by presuming particularly serious status and forced rebuttal | Gov: BIA concluded conviction warranted such a finding (but conceded presumption appeared erroneous) | Held: BIA erred and abused discretion by applying a rebuttable presumption; remanded for application of the correct multi-factor, case-by-case analysis. |
| Whether substantial evidence supports denial of CAT protection | Mendoza-Garcia: tattoos and alcohol dependency make future torture likely | Gov: record does not show more-likely-than-not torture risk | Held: Denial of CAT relief is supported by substantial evidence; potential future torture was speculative. |
Key Cases Cited
- United States v. Stitt, 139 S. Ct. 399 (2018) (Supreme Court: "building or structure" can include nonpermanent structures designed/adapted for overnight use)
- United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016) (prior Ninth Circuit holding that ORS definition overbroad because it included nonpermanent structures; here expressly overruled)
- Taylor v. United States, 495 U.S. 575 (1990) (formulation of generic burglary elements)
- Mathis v. United States, 579 U.S. 500 (2016) (modified categorical approach and divisibility rules)
- Descamps v. United States, 570 U.S. 254 (2013) (limited review of the record of conviction under the modified categorical approach)
- Diaz-Flores v. Garland, 993 F.3d 766 (9th Cir. 2021) (held ORS § 164.225 divisible between dwelling and non-dwelling offenses)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ("realistic probability" standard for proving a statute’s overbreadth)
- Bare v. Barr, 975 F.3d 952 (9th Cir. 2020) (BIA multi-factor test for determining a "particularly serious crime")
- Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (no categorical subset exempt from the BIA’s multi-factor analysis)
- Alberto-Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) ("term of imprisonment" refers to sentence actually imposed)