Ludwin Lopez-Aguilar v. William Barr, 921 F.3d 898

Petitioner Ludwin Israel Lopez-Aguilar, a Guatemalan national and U.S. lawful permanent resident, was convicted in Oregon of third-degree robbery under Or. Rev. Stat. § 164.395 and sentenced to 13 months.
ORS § 164.395 defines third-degree robbery as using or threatening immediate physical force "in the course of committing or attempting to commit theft or unauthorized use of a vehicle," and it incorporates Oregon theft (including "theft by deception") and unauthorized-use statutes.
The immigration judge found Lopez-Aguilar removable as having committed an aggravated felony (INA § 101(a)(43)(G): theft offenses with ≥1 year imprisonment) and denied deferral of removal under the Convention Against Torture (CAT).
The Board of Immigration Appeals (BIA) agreed that § 164.395 is a theft aggravated felony (rejecting arguments that it overbroadly covers consensual takings or unauthorized vehicle use) and upheld denial of CAT relief.
The Ninth Circuit (majority) affirmed: it held § 164.395 is categorically a generic theft offense for INA purposes and that substantial evidence supports denial of CAT relief.
Judge Berzon dissented, arguing the statute is on its face broader than the INA theft definition and that Oregon case law shows a realistic probability the statute would be applied to nongeneric conduct; she would grant the petition.

Issue	Plaintiff's Argument (Lopez-Aguilar)	Defendant's Argument (Barr / Gov't)	Held
Whether ORS § 164.395 is categorically a "generic theft" aggravated felony under INA § 101(a)(43)(G)	§ 164.395 is overbroad because it incorporates theft by deception (consensual takings) and unauthorized vehicle use (no intent to permanently deprive)	Although the statute’s text could theoretically reach consensual takings or temporary unauthorized vehicle use, there is no realistic probability Oregon would prosecute such nongeneric conduct under § 164.395	Majority: § 164.395 is a categorical theft offense (aggravated felony); petitioner removable
Whether substantial evidence supports denial of CAT relief	Lopez-Aguilar: likely eventual torture in Guatemala by his father or rival gangs given tattoos/gang past	Government: record shows no particularized likelihood of torture, father hasn’t contacted him in decades, mother returned safely twice, and country/government response does not amount to acquiescence	Majority: substantial evidence supports BIA denial of CAT relief; petition denied

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (state statute must have a realistic probability of covering nongeneric conduct to defeat categorical match)
Taylor v. United States, 495 U.S. 575 (categorical and modified-categorical approaches)
Shepard v. United States, 544 U.S. 13 (limits on documents courts may consult in modified-categorical analysis)
Hernandez-Cruz v. Holder, 651 F.3d 1094 (Ninth Circuit definition of generic theft for INA § 101(a)(43)(G))
Carrillo-Jaime v. Holder, 572 F.3d 747 ( Ninth Circuit discussion of theft elements applied to aggravated-felony analysis)
United States v. Grisel, 488 F.3d 844 (textual breadth on statute’s face can establish realistic probability of nongeneric application)