GONZALO BANUELOS DOMINGUEZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 18-72731
United States Court of Appeals for the Ninth Circuit
July 21, 2020
Agency No. A013-591-616
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 11, 20201 Portland, Oregon
Filed July 21, 2020
Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit Judges, and Kathleen Cardone,2 District Judge.
Opinion by Judge Cardone
SUMMARY3
Immigration
Dismissing in part and denying in part Gonzalo Banuelos Dominguez‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that: 1) Oregon Revised Statutes (“ORS“)
At the time of Dominguez‘s conviction,
At the second step, the panel explained that, under Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017),
At the third step, the panel concluded that
Applying the modified categorical approach, the panel concluded that Dominguez‘s
Next, the panel held that the BIA did not err in concluding that Dominguez‘s conviction was a particularly serious crime that made him ineligible for withholding of removal, explaining that the BIA properly applied the applicable standard set out in Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982).
COUNSEL
Jeffrey C. Gonzales, Gonzales Gonzales & Gonzales, Portland, Oregon, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Jennifer J. Keeney, Assistant Director; Lindsay B. Glauner, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
CARDONE, District Judge:
Petitioner Gonzalo Banuelos Dominguez was convicted under Oregon law for manufacturing marijuana, a violation of Oregon Revised Statutes (“ORS“)
We consider as a matter of first impression whether
Dominguez is a native and citizen of Mexico, now sixty-three years old, who was admitted to the United States as a lawful immigrant in 1963, a lawful permanent resident since at least 1969. In August 2002, Dominguez was indicted on charges of “manufacture of a schedule 1 controlled substance (a felony;
On March 20, 2009, the Department of Homeland Security (“DHS“) filed a Notice to Appear (“NTA“) with the Portland immigration court, initiating removal proceedings against Dominguez. The government charged Dominguez as removable under
One week later, DHS filed a Form I-261, bringing additional charges of removability. The government alleged that Dominguez was also removable under
Dominguez appeared before an IJ for his initial hearing in June 2009. The removal hearing continued on November 5, 2009, when the court issued a ruling from the bench that Dominguez‘s conviction constituted an aggravated felony, and therefore Dominguez was ineligible for asylum, adjustment of status, and cancellation of removal. On March 20, 2012, removal proceedings continued in another hearing, this one considering Dominguez‘s claims for withholding of removal under the INA and the CAT. The same day, the court issued an “Oral Decision of the Immigration Judge,” pretermitting Dominguez‘s withholding application and denying his CAT claim.
Dominguez appealed the IJ‘s decision to the BIA on April 10, 2012. On September 17, 2013, the BIA found “the [IJ‘s] decision is insufficient to permit meaningful appellate review,” and remanded the case to the IJ to “issue a new decision with additional findings.” On April 2, 2014, the IJ issued a written opinion.
The IJ made an adverse credibility determination, finding that Dominguez‘s testimony regarding the conduct underlying his criminal conviction was “logically implausible,” and that some of Dominguez‘s in-court testimony contradicted his prior written declaration. Considering the first charge of removability, the IJ found that
Then, the IJ denied Dominguez‘s withholding of removal application. The IJ found that, based on the underlying circumstances, Dominguez‘s conviction constituted a particularly serious crime, rendering withholding of removal under the INA and CAT unavailable. The IJ noted that, alternatively, she would deny Dominguez‘s withholding application for lack of a nexus to a protected ground, even absent the aggravated felony and particularly serious crime bar. Finally, the IJ denied Dominguez‘s CAT claim for deferral of removal as well, finding Dominguez had not shown it was more likely than not that he would be tortured in Mexico.
On April 28, 2014, Dominguez appealed the IJ‘s decision to the BIA. While the parties’ briefing was pending, in February 2017, Dominguez filed a supplemental brief requesting remand to the IJ based on Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017). The Sandoval
decision concerns the divisibility of the statute of Dominguez‘s conviction,
On September 11, 2018, the BIA issued its decision. As to removability, the BIA found that Dominguez only contested the aggravated felony basis for removal, waiving any challenge to removability based on a conviction related to a controlled substance.5 On the aggravated felony charge, the BIA affirmed the IJ‘s opinion that the modified categorical approach applies to
Dominguez timely petitioned for review of the BIA‘s decision.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Dominguez‘s appeal under
We review purely legal questions de novo and review a denial of a motion to terminate for abuse of discretion. Aguilar Fermin v. Barr, 958 F.3d 887, 891–92 (9th Cir. 2020).
DISCUSSION
Dominguez challenges three conclusions reached by the BIA: (1) the aggravated felony finding, (2) the particularly serious crime finding, and (3) the denial of his motion to reopen proceedings. We address each in turn.
A
“Any alien who is convicted of an aggravated felony at any time after admission is deportable.” Flores-Vega, 932 F.3d at 882 (quoting
We determine whether Dominguez‘s manufacture of marijuana conviction is an aggravated felony by applying the three-step process set out in Descamps v. United States, 570 U.S. 254 (2013). See Lopez-Valencia v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015). First, applying the categorical approach established by Taylor v. United States, 495 U.S. 575 (1990), we compare the elements of the offense of the petitioner‘s conviction with the elements of a generic offense—“i.e., the offense as commonly understood.” Sandoval, 866 F.3d at 988. Importantly, this step considers only statutory definitions, not the actual conduct underlying the conviction. Descamps, 570 U.S. at 261 (“The key, we emphasized, is elements, not facts.“). When the elements of the state offense are the same as, or narrower than, those of the generic offense, the petitioner‘s conviction is a categorical match. Id. However, if the elements of the state offense are broader than those of the generic—meaning the state offense criminalizes conduct that the federal offense does not—then there is no categorical match. See Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018).
When the state statute is “overbroad,” we turn to the second step to determine whether the statute is divisible. Lopez-Valencia, 798 F.3d at 867–68. A statute is divisible if it sets out elements of the offense in the alternative, effectively containing multiple possible offenses. Romero-Millan v. Barr, 958 F.3d 844, 847 (9th Cir. 2020). A statute is not divisible if it only lists alternative methods of committing a single crime. Id. If the statute is not divisible, the inquiry ends; “a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Lopez-Valencia, 798 F.3d at 868 (quoting Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). Only when an overbroad statute is divisible do we proceed to the final step. Id.
If we reach this step, we apply the “modified categorical approach.” See Villavicencio, 904 F.3d at 664. Under this approach, we examine a limited class of documents—such as the charging instrument, jury instructions, jury verdict, or plea agreement—“to determine which of a statute‘s alternative elements formed the basis of the defendant‘s prior conviction.” Descamps, 570 U.S. at 262. Having identified the underlying offense of conviction, we may then determine whether
1
Dominguez argues that, based on our decision in Sandoval,
At the first step, applying the categorical approach, we must determine the definition of the generic offense; in this case, an aggravated felony. See Sandoval, 866 F.3d at 989.
The INA‘s definition of an aggravated felony encompasses any “illicit trafficking in a controlled substance... including a drug trafficking crime.”
The Controlled Substances Act, in turn, makes it unlawful to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
Having defined the generic offense, we determine whether the statutory offense underlying Dominguez‘s conviction is a categorical match. Dominguez was convicted of violating
We applied the categorical approach to a conviction under
felony. Id. We held that an offense under
But the analysis does not end there. While
2
The BIA found that
Looking to the plain language of the statute,
manufacture or deliver a controlled substance.“). In Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court explained that the first task when faced with such a statute is to determine whether its listed items are alternative elements—defining multiple offenses—or alternative means—defining multiple ways of committing a single offense. 136 S. Ct. 2243, 2251-54, 2256 (2016). If there are alternative elements, the statute is divisible between its multiple offenses and the modified categorical approach is applied to determine which offense the petitioner was convicted of. Id. at 2256. If there are merely alternative means, a reviewing court cannot look to which of the alternatives was at issue, but must apply only the categorical approach, comparing the elements in their entirety to the generic offense. Id.
To resolve this threshold inquiry—elements or means—the reviewing court looks to whether state law answers the question. Id. A state court decision, or the statute itself, may resolve the issue. Id. For example, if the statute‘s listed alternatives carry different punishments, they must be elements. Id. (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Or, some statutes specify which provisions must be charged, identifying elements, while others may specify that listed alternatives are only “illustrative examples,” identifying means. Id. If state law fails to resolve the inquiry, courts may then take a “peek” at the record of the prior conviction for “the sole and limited purpose of determining whether the listed items are elements of the offense.” Id. at 2256–57 (alterations omitted) (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015) (Kozinski, J., dissenting from denial of reh‘g en banc)). If ambiguity remains after consulting state law and the record of conviction, then the conviction is not divisible nor a categorical match to the generic offense. Id. at 2257 (citing Shepard v. United States, 544 U.S. 13, 21 (2005)).
Here, the statute and its interpretation by Oregon courts demonstrate that the phrase “manufacture or deliver” in
Oregon case law tends to confirm this conclusion. In Tellez, the Oregon Court of Appeals rejected the
government‘s argument that “the act of slicing off an individual-use portion of ... tar heroin from a larger quantity” amounts to “packaging,” and therefore “manufacture.” 14 P.3d at 79, 81. In reaching that conclusion, the court observed: “[T]o the extent that the state‘s argument emphasizes not the taking of the individual-user sized portion, but the selling of it (or the intention of selling it), that act constitutes delivery (or attempted delivery), which is a distinct crime from manufacture.” Id. at 81. This statement, albeit in dicta, provides at least some indication of how Oregon courts understand the structure of
Providing further confirmation, Oregon courts allow convictions for both manufacture and delivery arising out of the same conduct. For example, in State v. Morgan, 951 P.2d 187 (Or. Ct. App. 1997), the Court of Appeals upheld an indictment that charged the defendants with “one count each of delivery, possession and manufacture of a controlled substance.” Id. at 188 & n.2. The first count of the indictment charged delivery of marijuana and the third count charged manufacture, specifying that each charge arose from the same acts. Id. at 188 n.2. The court noted it was “uncontested in this case that each of the three counts of the indictment alleges all of the essential elements of the relevant offense and uses the language of the appropriate subsection of
and delivery charges in Morgan could not be sustained as separately punishable offenses.
There are numerous Oregon cases like Morgan that affirmed convictions for both delivery and manufacture that arise out of the same conduct. See, e.g., State v. Sanders, 226 P.3d 82, 83 (Or. Ct. App. 2010); State v. Russell, 60 P.3d 575, 575 (Or. Ct. App. 2002); State v. Wright, 945 P.2d 1083, 1083 (Or. Ct. App. 1997). We have previously found such evidence probative of divisibility. See, e.g., United States v. Martinez-Lopez, 864 F.3d 1034, 1040–43 (9th Cir. 2017) (en banc) (finding statute divisible because case law showed that “defendants are routinely subjected to multiple convictions under a single statute for a single act as it relates to multiple controlled substances“). Here, too, because Oregon defendants are routinely subjected to multiple convictions under a single statute where manufacture and delivery arise from the same conduct, the statute‘s alternative provision lists elements, not means. See id.
Furthermore, even if these state law resources do not provide a sufficiently definitive
in the County of Hood River and State of Oregon, did unlawfully and knowingly manufacture marijuana, a controlled substance.” The only other Shepard document in the record is the final judgment of conviction entered upon Dominguez‘s guilty plea. The judgment states that Dominguez was convicted on Count One of the indictment. However, the judgment lists the charge as “Count 1: Manu/Del Cntrld sub-SC 1.” Thus, the information and indictment “indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each of which goes toward a separate crime.” Id. at 2257. The same cannot be said, however, of the judgment.
Ultimately, between the statute itself and relevant state court decisions, state law answers the elements versus means question here. The two listed alternatives are defined separately in the statute and, in narrow circumstances, could be punished disparately. Decisions from Oregon‘s intermediate courts of review have referred to the alternatives as distinct crimes and approve of parallel convictions for both “manufacture” and “delivery” arising out of the same conduct. And, Dominguez points to nothing aside from Sandoval—which considered a distinct and inapplicable divisibility issue—to argue
3
Under the modified categorical approach, we look to the record to determine the offense of conviction. See Mathis, 136 S. Ct. at 2249. The charging documents here specify that Dominguez was charged with manufacture under
substance.”
Statutory definitions do not have to be identical to establish a categorical match. See Moncrieffe v. Holder, 569 U.S. 184, 205–06 (2013); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Rather, a petitioner bears the burden of showing that the state statute is overbroad, meaning that it criminalizes more conduct than the generic offense covers. Moncrieffe, 569 U.S. at 205–06. “[T]o find that a state statute creates a crime outside the generic definition ... requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U.S. at 193. The mere presence of an additional descriptive term in the state offense‘s definition is insufficient, on its own, to meet this burden. See, e.g., Chavez-Solis v. Lynch, 803 F.3d 1004, 1007–08 (9th Cir. 2015) (“[The petitioner] tries to make something of the fact that the federal statute says only ‘possesses,’ not ‘possesses or controls’ . . . . But there is no legally significant distinction between these terms.“); United States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir. 2008) (per curiam) (“True, the Controlled Substances Act does not use the term ‘drying,’ but the ordinary meaning of the terms ‘production’ and ‘processing of a drug’ includes the act of drying.“).
Here, the inclusion of the word “conversion” in Oregon‘s definition of manufacture does not criminalize any conduct beyond the reach of the Controlled Substances Act‘s
definition. There is not a realistic probability that Oregon prosecutes conduct as conversion that is not covered by the Controlled Substances Act‘s descriptive terms, “production, preparation, propagation, compounding, or processing.”
Accordingly, the modified categorical approach establishes that Dominguez‘s Oregon conviction for manufacture of a controlled substance under
B
In addition to being removable and ineligible for asylum, a noncitizen convicted of a particularly serious crime is ineligible for withholding of removal under the INA and CAT. Flores-Vega, 932 F.3d at 884. For asylum purposes, an aggravated felony is per se a particularly serious crime. Id. (citing
The applicable legal standard for a particularly serious determination arises from Matter of Frentescu, 18 I. & N. Dec. 244 (B.I.A. 1982). Flores-Vega, 932 F.3d at 884. That BIA decision listed the so-called “Frentescu factors” to analyze whether a crime is particularly serious: “[the] nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.”9 Id. (alteration in original) (quoting Frentescu,
18 I. & N. Dec. at 247). “In short, a crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.” Delgado v. Holder, 648 F.3d 1095, 1107 (9th Cir. 2011) (en banc).
The BIA properly applied that standard here. Both the BIA and the IJ cited Frentescu and stated that its factors controlled the analysis. Then, the BIA provided a reasoned explanation for affirming the IJ‘s conclusion, based on the factors, that Dominguez committed a particularly serious crime. The BIA considered several facts underlying Dominguez‘s conviction, including that “the respondent set up a marijuana growing operation inside one of the bedrooms in his home, which included special lights and approximately 50 potted plants.” Further, the BIA noted the IJ‘s adverse credibility finding, highlighting inconsistencies
The BIA did not—as Dominguez argues—rely on the elements of the crime of conviction alone in reaching its determination. Rather, the BIA considered specific facts about Dominguez‘s case in conjunction with the nature of
the offense, thereby conducting a case-by-case analysis as required. See Blandino-Medina, 712 F.3d at 1347-48. The BIA did not err in affirming the IJ‘s conclusion that Dominguez committed a particularly serious crime.
C
Lastly, a petitioner may be entitled to relief from a defective NTA if it is shown that the Immigration Court lacked jurisdiction. Lazaro v. Mukasey, 527 F.3d 977, 980 (9th Cir. 2008). Here, the initial NTA filed in Dominguez‘s case did not provide a specific date and time for the first hearing. A subsequent “Notice of Hearing,” sent a week later, supplied that information.
Dominguez argues that the BIA erred in denying his motion to terminate proceedings because, under Pereira, the NTA was deficient and thus the IJ was never vested with jurisdiction.
In the time since Dominguez raised this argument, it has been squarely foreclosed by Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019). The Karingithi court held that ”Pereira was not in any way concerned with the Immigration Court‘s jurisdiction.” Id. at 1159. Therefore, as in Karingithi, the IJ was vested with jurisdiction over Dominguez‘s case when the NTA was filed. See id. The BIA did not abuse its discretion in denying Dominguez‘s motion to terminate proceedings for lack of jurisdiction.
CONCLUSION
Section
We DISMISS in part and DENY in part the petition for review.