27 I. & N. Dec. 82
BIA2017Background
- Respondent (Mexican national, entered without inspection) convicted twice of Oregon first‑degree burglary (ORS 164.225) in 1999 and 2002.
- DHS charged removability under INA § 212(a)(2)(A)(i)(I) (crime involving moral turpitude) and § 212(a)(6)(A)(i) (unlawful presence); respondent conceded unlawful presence but contested moral turpitude.
- ORS 164.225 defines first‑degree burglary by alternative prongs: (a) unlawful entry/remaining in a dwelling with intent to commit a crime, or (b) unlawful entry/remaining in a building with aggravating conduct (weapons, injury, etc.). ORS 164.205(2) defines “dwelling” as regularly or intermittently occupied.
- IJ applied the modified categorical approach to respondent’s records and found convictions under the burglary‑of‑dwelling prong. IJ denied cancellation, asylum, withholding, and CAT relief, but granted voluntary departure. Respondent appealed.
- BIA reviewed de novo whether burglary of an intermittently/regularly occupied dwelling under ORS 164.225 is a crime involving moral turpitude and affirmed removability and denial of relief; reinstated voluntary departure bond conditionally.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether ORS 164.225 burglary conviction is a "crime involving moral turpitude" (CIMT) | Statute is broader than generic CIMT: unlawful entry may occur without reprehensible conduct or culpable mental state (no requirement victim present; intent at time of entry not required) | First‑degree burglary of a dwelling necessarily involves unlawful entry into a regularly/intermittently occupied dwelling with intent to commit a crime and thus is inherently reprehensible and culpable | Burglary of a regularly or intermittently occupied dwelling under ORS 164.225 is a CIMT, even if victim not physically present at time of offense |
| Whether the statute is divisible so the modified categorical approach may be used | (Argued via citation to Cisneros) statute is indivisible with respect to building type | Statute is divisible between prongs (dwelling v. non‑dwelling) so modified categorical inquiry is permitted; respondent’s record shows dwelling prong | Statute is divisible as to dwelling vs. other buildings; modified categorical inquiry properly used and conviction falls under dwelling prong |
| Whether respondent is eligible for cancellation of removal | (Implicit) conviction should not be a CIMT so cancellation could be available | Conviction is a § 212(a)(2) offense; conviction bars cancellation under INA § 240A(b)(1)(C) | Conviction is a § 212(a)(2) CIMT; respondent ineligible for cancellation |
| Whether respondent demonstrated eligibility for asylum/withholding/CAT | Fears of general violence and being targeted as a long‑term U.S. returnee justify relief | Proposed social group is amorphous; respondent lacks past persecution and nexus to protected ground; no individualized likelihood of torture by state actors | IJ and BIA correctly denied asylum, withholding, and CAT: proposed group lacks particularity/social distinctness; no nexus or clear likelihood of torture |
Key Cases Cited
- Cuevas‑Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (discusses that mere entry is not per se turpitudinous; turpitude depends on accompanying crime)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (statute is divisible when it lists alternative elements; modified categorical approach applies)
- Jordan v. De George, 341 U.S. 223 (1951) (phrase “crime involving moral turpitude” is not unconstitutionally vague)
- United States v. Mayer, 560 F.3d 948 (9th Cir. 2009) (interpreting scope of Oregon burglary statute and building definitions)
- United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016) (addresses indivisibility of ORS 164.225 as to types of structures under federal burglary definition)
- Uribe v. Sessions, 855 F.3d 622 (4th Cir. 2017) (endorses BIA’s view that burglary of a dwelling is categorically a CIMT)