Ludwin Lopez-Aguilar v. William Barr, 948 F.3d 1143

Petitioner Ludwin Israel Lopez-Aguilar, a Guatemalan national and lawful permanent resident, was convicted in Oregon (2014) of third-degree robbery under Or. Rev. Stat. § 164.395 and sentenced to 13 months’ imprisonment.
DHS initiated removal proceedings, charging removal as an aggravated felony under INA § 101(a)(43)(G) (a theft offense with a sentence of at least one year).
The IJ and the BIA concluded the conviction was a categorical theft offense and denied relief under the Convention Against Torture (CAT); BIA interpreted the statute’s force element as negating consent.
Lopez-Aguilar petitioned for review in the Ninth Circuit, challenging whether ORS § 164.395 is a categorical match to the generic federal theft offense and whether the statute is divisible.
The Ninth Circuit applied the categorical/modified-categorical framework (Taylor/Shepard/Descamps line), held § 164.395 facially overbroad because it expressly incorporates theft by deception (which can be consensual), found the statute indivisible (government waived any divisibility argument), and concluded the conviction is not an aggravated felony under INA § 101(a)(43)(G).
Because the conviction is not an aggravated felony, the court granted the petition and did not reach the BIA’s denial of CAT relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS § 164.395 is a categorical match to the generic federal "theft" (so counts as an aggravated felony under INA § 101(a)(43)(G))	§ 164.395 is overbroad because it incorporates theft by deception and thus covers consensual takings; force element does not necessarily require nonconsensual taking.	BIA/Government: the statute’s force/threat element necessarily negates consent, so it matches generic theft.	Court: § 164.395 is facially overbroad — it expressly includes theft by deception and scenarios where the owner’s consent remains, so it is not a categorical theft offense.
If overbroad, is the statute divisible so the modified categorical approach may be used?	Lopez-Aguilar: statute is indivisible; modified categorical approach not available.	Government/BIA: did not argue divisibility to the Ninth Circuit (issue waived).	Court: statute is indivisible and divisibility was waived by the government; modified categorical approach inapplicable.
Effect on removal / CAT claim	Lopez-Aguilar: because conviction is not an aggravated felony he is not removable; CAT relief need not be reached.	Government: removal and CAT denial previously affirmed by BIA.	Court: Because conviction is not an aggravated felony, petition granted and removal reversed; CAT issue not reached.

Taylor v. United States, 495 U.S. 575 (1990) (framework for categorical approach comparing statute elements to generic offense)
Shepard v. United States, 544 U.S. 13 (2005) (limitations on documents usable under the modified categorical approach)
Descamps v. United States, 570 U.S. 254 (2013) (distinguishes categorical and modified categorical approaches; overbroad indivisible statute cannot be recast)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability test for whether state statute covers nongeneric conduct)
United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (statute facially overbroad when its text expressly defines conduct broader than the generic offense)
Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015) (theft-by-deception in state statutes can render them non-categorical matches for generic theft)
United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (theft-by-false-pretenses may take a statute outside the generic theft definition)
United States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014) (state offense must cover only conduct within the federal generic offense to qualify)
Penuliar v. Gonzales, 435 F.3d 961 (9th Cir. 2006) (definition of generic theft cited and applied)