965 F.3d 1091
9th Cir.2020Background
- Dominguez, a Mexican national and long‑time lawful permanent resident, pled guilty in Oregon (2002) to violating ORS § 475.992(1)(a) based on an allegation he manufactured marijuana.
- DHS served an NTA (without date/time) and later a Notice of Hearing; removal proceedings charged him with being removable for an aggravated felony and for an offense relating to a controlled substance.
- The IJ found the statute divisible between “manufacture” and “delivery,” applied the modified categorical approach, concluded the conviction was for manufacture, and held it was an aggravated felony; IJ also found the offense a particularly serious crime and denied CAT relief.
- The BIA remanded for a fuller IJ opinion, then affirmed the IJ’s conclusions that the statute is divisible, the conviction matched a generic drug‑trafficking (manufacture) offense, and the crime was particularly serious; the BIA denied Dominguez’s Pereira‑based motion to terminate.
- Dominguez petitioned for review; the Ninth Circuit reviews legal questions de novo and discretionary rulings for abuse of discretion and limited its review on certain issues per §1252.
Issues
| Issue | Dominguez's Argument | Government / BIA Argument | Held |
|---|---|---|---|
| Whether ORS § 475.992(1)(a) is divisible between "manufacture" and "delivery" for the modified categorical approach | §475.992 is indivisible (Sandoval compels finding indivisible) so modified categorical approach cannot be used | The statute uses disjunctive, separately defined terms, differing punishments and Oregon case law show separate offenses; thus divisible | Divisible as to manufacture vs delivery; modified categorical approach applies |
| Whether Dominguez's conviction is an aggravated felony (drug trafficking crime) | The statute is overbroad (Sandoval) so conviction is not a categorical match to federal drug‑trafficking | With divisibility and charging documents showing manufacture, the state manufacture elements match federal CSA manufacture | Conviction for manufacture of marijuana is a categorical match to a drug‑trafficking aggravated felony; removal affirmed |
| Whether the offense is a "particularly serious crime" barring withholding of removal | Offense not particularly serious; BIA improperly relied on elements alone | BIA and IJ applied Frentescu factors, considered underlying facts (grow op ~50 plants, special lights, credibility issues) and sentence | BIA did not abuse discretion; crime found particularly serious; withholding denied |
| Whether the defective NTA (no date/time) deprived IJ of jurisdiction (Pereira) | NTA omission is jurisdictionally fatal; proceedings should be terminated | Karingithi and precedent hold Pereira did not strip Immigration Court of jurisdiction; subsequent Notice cured timing info | BIA properly denied motion to terminate; IJ had jurisdiction |
Key Cases Cited
- Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) (analyzing ORS §475.992 and finding §475.992 delivery broader than federal definition of deliver)
- Descamps v. United States, 570 U.S. 254 (2013) (three‑step categorical/modified categorical framework)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means and instructing how to test divisibility)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressing NTA sufficiency in a notice context)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (holding Pereira did not divest Immigration Court of jurisdiction)
- Flores‑Vega v. Barr, 932 F.3d 878 (9th Cir. 2019) (explaining aggravated‑felony removability and review limits; particularly serious‑crime principles)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (burden to show realistic probability of overbreadth in categorical analysis)
- Shepard v. United States, 544 U.S. 13 (2005) (limiting record documents for modified categorical inquiry)