Aguirre Barbosa, Amended

Aguirre Barbosa v. Barr, June 6, 2019

Court Staff Summary: "The panel filed: (1) an order denying Respondent’s motion to depublish and granting the motion to amend the opinion filed on March 28, 2019, and appearing at 919 F.3d 1169; and (2) an amended opinion. In the amended opinion, the panel granted in part and denied in part Pedro Aguirre Barbosa’s petition for review of a decision of the Board of Immigration Appeals, and held that robbery in the third degree in violation of Oregon Revised Statutes section 164.395 is not categorically a crime involving moral turpitude. In concluding that Petitioner’s robbery conviction under section 164.395 was not categorically a crime involving moral turpitude that made him statutorily ineligible for cancellation of removal, the panel explained that section 164.395 encompasses the unauthorized use of a vehicle, which does not include as an essential element an intent to deprive the owner of his or her property permanently. The panel noted that, under longstanding BIA precedent, a theft offense was not categorically a crime involving moral turpitude if the statute criminalized a taking with intent to deprive an owner of his property only temporarily, but that the BIA had recently adopted a more expansive standard. However, the panel explained that the new standard did not apply retroactively to Petitioner’s case because he pleaded no contest to the relevant charges before the BIA changed its interpretation. The panel also held that, although robbery under section 164.395 involves a taking of property and the threatened or actual use of force, the minimal force required for conviction is insufficient to label the offense a crime involving moral turpitude. The panel noted that it would ordinarily proceed to deciding whether the statute is divisible, but the panel deemed the issue waived because the government did not argue that section 164.395 is divisible. The panel remanded the matter to the BIA to consider the merits of Petitioner’s request for cancellation of removal. The panel denied the petition as to Petitioner’s withholding of removal claim, concluding that Petitioner’s proposed particular social group – individuals returning to Mexico who are believed to be wealthy – is too broad to qualify as a particular social group under this court’s precedent. Concurring, Judge Berzon wrote separately to join the chorus of voices calling for renewed consideration as to whether the phrase “crime involving moral turpitude” is unconstitutionally vague."