Diaz-Flores v. Garland

993 F.3d 766

Jose Guillermo DIAZ-FLORES, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 17-72563

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2020 Seattle, Washington

Filed April 6, 2021

N. David Shamloo (argued), Portland, Oregon, for Petitioner.

Rebekah Nahas (argued), Trial Attorney; Briena L. Strippoli, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: M. Margaret McKeown and Patrick J. Bumatay, Circuit Judges, and Michael W. Mosman,^* District Judge.

BUMATAY, Circuit Judge:

The question before the court is whether a conviction for first-degree burglary of a dwelling under Oregon Revised Statutes § 164.225 is a crime involving moral turpitude for immigration purposes. The petition before us argues that it is not and that the phrase "crime involving moral turpitude" is unconstitutionally vague anyway. We hold that the Board of Immigration Appeals ("BIA") permissibly concluded that ORS § 164.225 is a crime involving moral turpitude ("CIMT") and that precedent forecloses the constitutional vagueness argument. We thus deny the petition.

I.

At the age of 12, Jose Diaz-Flores, a native of Mexico, entered the United States without inspection. Twenty years later, Diaz-Flores found himself in the Multnomah County Jail on domestic-violence charges. An immigration officer who was conducting routine operations at that jail discovered that Diaz-Flores had entered unlawfully. Diaz-Flores was then taken into Immigration and Customs Enforcement custody. The Department of Homeland Security later learned that Diaz-Flores had been previously convicted of first-degree burglary in Oregon twice in the span of three years. See ORS § 164.225.

DHS then initiated removal proceedings, charging Diaz-Flores as removable as an alien present without admission or parole, 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who has been convicted of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I). Diaz-Flores conceded the first charge of removability but denied the second. He also sought cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

The immigration judge sustained the charge of removability for conviction of a crime involving moral turpitude on the grounds that ORS § 164.225 constituted such a crime. The IJ then held that the conviction rendered him statutorily ineligible for cancellation of removal. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). The IJ also denied his request for asylum, withholding of removal, and CAT protection.

In a published decision, the BIA affirmed, concluding that first-degree burglary of a dwelling under ORS § 164.225 is a crime involving moral turpitude. The BIA also affirmed the denial of all relief from removal.

Diaz-Flores petitioned for this court's review. We have jurisdiction to decide the question of law that Diaz-Flores raises: whether his conviction of first-degree burglary under Oregon law qualifies as a crime involving moral turpitude. See 8 U.S.C. § 1252(a)(2)(D) ; Robles-Urrea v. Holder , 678 F.3d 702, 707 (9th Cir. 2012). We review that question de novo. Jauregui-Cardenas v. Barr , 946 F.3d 1116, 1118 (9th Cir. 2020).¹

II.

To determine whether a particular conviction is of a "crime involving moral turpitude," we rely on the now-familiar categorical and modified-categorical approaches described in Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Syed v. Barr , 969 F.3d 1012, 1017 (9th Cir. 2020). These approaches are "best understood as a task of statutory matching—we ask whether the statutory elements of the crime of conviction match the elements of the generic offense which serves as the basis for removal." Id .

We note that referring to a "generic" definition of a "crime involving moral turpitude" is somewhat of a misnomer since there is no such crime in the United States Code. See Ceron v. Holder , 747 F.3d 773, 786 (9th Cir. 2014) (Bea, J., dissenting). Federal immigration law offers no assistance either; the Immigration and Nationality Act neither defines moral turpitude nor provides any rules for determining whether a crime involves moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Through our precedents, we have settled on an understanding that a crime involving moral turpitude is one that is "vile, base, or depraved" and "violates accepted moral standards."

Ramirez-Contreras v. Sessions , 858 F.3d 1298, 1304 (9th Cir. 2017).² Yet, because even that definition offers a poor delineation of criminal elements, we generally compare the state offense to crimes that have previously been found to involve moral turpitude. Mendoza v. Holder , 623 F.3d 1299, 1302 (9th Cir. 2010). With this legal framework in mind, we turn to whether ORS § 164.225 is a crime involving moral turpitude.

A.

At the first step, we must decide whether first-degree burglary is a categorical match to a CIMT or if it is overbroad. The Oregon law provides:

A person commits the crime of burglary in the first degree if the person violates ORS 164.215 [second-degree burglary] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a) Is armed with a burglary tool or theft device as defined in ORS 164.235 or a deadly weapon;

(b) Causes or attempts to cause physical injury to any person; or

(c) Uses or threatens to use a dangerous weapon.

ORS § 164.225(1) (emphasis added). In turn, Oregon's second-degree burglary statute makes it a crime to "enter[ ] or remain[ ] unlawfully in a building with intent to commit a crime therein." Id. § 164.215(1). A "dwelling" is defined as "a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present." Id . § 164.205(2). A "building" is expansively defined, bearing its "ordinary meaning," yet also includes "any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein." Id. § 164.205(1).

We have previously held that burglary does not categorically constitute a crime involving moral turpitude. In Cuevas-Gaspar v. Gonzales , we considered the intent necessary for a burglary to be deemed morally turpitudinous. 430 F.3d 1013, 1020 (9th Cir. 2005), abrogated on other grounds by Holder v. Martinez Gutierrez , 566 U.S. 583, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012). First, we've considered the intent necessary for a burglary to be deemed morally turpitudinous. We noted that the BIA at the time only considered a burglary a CIMT if the underlying crime that the burglar intended to commit was itself a crime of moral turpitude. Id . (relying on Matter of M- , 2 I. & N. Dec. 721, 723 (BIA 1946) ). We then ruled that burglary statutes that allow intent for any crime are not categorically crimes involving moral turpitude. Id .³ We have also held that burglary of a commercial, rather than a residential, building isn't categorically a crime involving moral turpitude. See Hernandez-Cruz v. Holder , 651 F.3d 1094, 1107 (9th Cir. 2011) (holding that burglary not involving a residence is not a CIMT). As discussed further below, unlawfully entering someone's residential dwelling implicates safety and privacy concerns unlike a commercial or non-residential space.

Based on these precedents, Oregon's first-degree burglary statute is overbroad as to intent and as to the type of structure involved. ORS § 164.215(1). The law proscribes any unlawful entry into any "building," including a commercial space, with any criminal intent. Id . For example, a vandal may use an oxygen lance to break into an aircraft to graffiti the inside of the airplane. That person could be convicted of first-degree burglary. See ORS §§ 164.225 (first-degree burglary), 164.205 ("building" includes aircraft), 164.235 (categorizing an "oxygen lance" as a burglary tool). But our hypothetical criminal would not have committed the type of burglaries condemned as a crime involving moral turpitude: the location of the burglary was not a dwelling and the predicate crime of vandalism is not itself one involving moral turpitude.⁴ This means that Oregon's statute is not a categorical match. See Taylor , 495 U.S. at 591, 110 S.Ct. 2143 (recognizing that California's burglary statute would be overbroad because its elements could hypothetically encompass mere shoplifting).

B.

Since Oregon's first-degree burglary statute is overbroad, we must therefore decide whether it is a divisible crime. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (Sometimes "[a] single statute may list elements in the alternative, and thereby define multiple crimes."). We hold that it is.

By its plain text, the statute appears divisible between burglary of a dwelling on the one hand, and burglary of a non-dwelling on the other. A defendant can be convicted of ORS § 164.225 with proof that he unlawfully entered a building with intent to a commit a crime and either: (a) the building was a "dwelling," or (b) one of other enumerated aggravating factors is present. Thus, the statute facially houses two different crimes under one roof.

Still, a statute's plain text can be deceiving when it comes to divisibility. See Ramirez v. Lynch , 810 F.3d 1127, 1135 (9th Cir. 2016) ("[T]he mere use of the disjunctive term ‘or’ does not automatically make a statute divisible.") (simplified). But here our plain-text interpretation is confirmed by state court cases treating burglary of a dwelling as a distinct crime, for which "dwelling" is an element that must be proven beyond a reasonable doubt. See, e.g. , State v. Taylor , 271 Or. App. 292, 296–97, 350 P.3d 525 (2015). And any lingering...