FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P ED RO A G

UI R R E B AR B O S A , Petitioner ,

v
. W I L L IAM P. B AR

R , Attorney General, Respondent. No. 15-72092 Agency No. A095-808-775
ORDER AND AMENDED OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals Argued and Subm itted March 5, 2019

Portland, Oregon Filed March 28, 2019 Am ended June 6, 2019 Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim , * Chief District Judge.

O rder; Opinion by Judge Graber; Concurrence by Judge Berzon

* T he H onorable John R. Tunheim , Chief United S tates D i strict Judge for the District of Minnesota, sitting by designation.A G UI R R E B A R B O S A V

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SUMMARY * *

Immigration
The panel filed: (1) an order denying Respondent ’s
m otion to depublish an d granting the m otion to am end the
o p inion f iled on March 28, 2019, and appearing at 919 F

. 3 d 1169; and (2) an am ended opinion.

In the am ended o p inion, the pan e l granted in part and denied in part Pedro Aguirre Barbosa’s petition for review o f
a decision of the B oard of Imm igration Appeals, and held that robbery in the third degree in v iolation of Or e g o n Revised Statutes section 164.395 is not categorically a cr i me involving m oral turpitude.

In concluding that P etitioner’s robbery conviction under section 164.395 was not categorically a cri me involving
m oral turpitude that m ade h im statutorily i n e l i gible for cancellation of rem oval, the panel exp l ained that section 164.395 encom

passes the unauthorized use o f a v ehicle, which does n ot i n cl u de as an essential elem ent an intent to deprive the o wner of his or her property perm anently. The pan e l noted that, under longstanding BIA precedent, a theft offense was not categorically a crime i nvolving m oral turpitude i f the statute crim inalized a taking with intent to deprive an o wner of his property only tem p or ar ily, b ut that the BIA had recently adopted a m o r e expansive standard. However, the p anel explained that the n ew standard did not apply retroactively to P etitioner’s case b ecause he pleaded no

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.A G UI R R E B A R B O S A V

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c ontest to the relevant charges before the B IA changed i t s interpretation.
The panel also held that, although robbery under section 164.395 involves a taking o f property and the thr e at e ned o r actual use of force, the m inim al force required for conviction is insufficient to label the o ffe n s e a crim e involving m oral turpitude.
The panel noted that it would ordinarily proceed to deciding wh ether the statute is divisible, but the panel deem ed the issue waived because the g ove rnm e nt did not argue that section 164.395 is divisible. The panel rem anded the m atter to the BIA to consider the m erits of Petitioner’s reque s t for cancellation of rem oval.
The panel denied the petition as to Petitioner’s withholding o f rem ova l c l aim , concluding that Petitioner’s proposed p articular soci a l group – individuals returning to Mexico who are believed to b e wealthy

– is too broad to qualify as a particular social group under this c ourt’s precedent. Concurring, Judge Berzon wrote separately to join the chorus of v oices calling for renewed consideration as to whether the phrase “crim e involving m oral tur p itude” is unconstitutionally vague.A G UI R R E B A R B O S A V

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C OUNSEL
Nadia H

. D ahab (argued), Stoll St o l l Berne L o kting & Schlachter P.C., Portland, Oregon, for Petitioner.

I mran Raza Zaidi (argued), Trial Attorney; Clai re L. Workm an, Senior L itigation Counsel; John W

. B lakel ey , Assistant Director; Joseph H

. Hunt, Assistant Attorney General; O ffice of Imm igration Litigati o n , Civil D ivision, United States Departm ent of Justice, W a shington, D.C.; for Respondent.

ORDER Respondent’s m otion to d epublish is DENIED , and the
m otion to am end the o pinion is GRANTED

. The o p i n i o n filed on March 28, 2019, and appearing at 919 F.3d 1169, is
am ended by the opinion filed concurrently with this order as follows:
On slip opinion page 9, second p aragraph, lines 4 –6, the sentence beginning with “Because Petitioner” is am ended to read as follows: “Because Petitioner pleaded no contest to the relevant charge before the BIA changed its interpretation, the new standard does not apply retroactively to his case.”

No further petitions for panel reh e aring or rehearing en banc will be entertained.A G UI R R E B A R B O S A V

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OPINION GRABER, Circuit Judge:
Petitioner P edro Aguirre Barbosa, a Mexican citizen, was convicted o f robbery in the third degree in violation of Oregon Revised Statutes section 1 64.395. An imm igration judge (“IJ”) denied relief from rem oval, and the Boar d o f Imm igration Appeals (“BIA”) dism issed Petitioner’s appeal. As relevant her e , the BIA held that section 164.395 categorically constitutes a crim e involving m oral turpitude (“CIMT”) and that P etitioner had failed to prove m em b ership in a “particular social group” for the purpose of establishing refugee status.

W e h old that section 164.395 is not categorically a CIMT, but we agree that Petitioner did not dem o nstrate m em b ership in a “particular soci al g r o up.” Accordingly, w e grant the petition for review in part, d eny it in part, and rem and to the BIA for further proceedings consistent with this decision.
Som etim e between 1997 and 1999, Petitioner entered the United States. In 2008, he was charged w ith, and pleaded no contest to, a v iolation of Oregon Revised Statutes section 164.395, which provides:

(1) A person comm its the crim e o f robbery in the third degree if in the course o f
comm itting o r attem

pting to comm it theft o r unauthorized use of a vehicl e a s defined in ORS 164.135 [ 1 ] the person uses or threat ens

1 Oregon Revised Statutes section 164.135 defines unauthorized u se of a vehicle.A G UI R R E B A R B O S A V

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the imm ediate use o f physical force upon another person with the intent of: (a) Preventing o r o v erco ming resistance to the taking of the property or to retention thereof imm ediately after the taking; or (b ) Com pelling the owner o f su ch p ro p erty or another person to deliver the property or to engage in other condu c t wh ich m ight aid in the comm ission of the theft or unauthorized use of a vehicle. (2) Robbery in the third degree is a Class C felony.

In 2010, the governm ent s e rved Petitioner with a notice to appear. Petitio n e r c onceded rem ovability and applied for cancellation of rem oval, withholding of rem oval, and other form s of relief.

An IJ denied all of Petitioner’s claim s. The BIA affirm ed the IJ’s de cision. The BIA held, am ong other things, that section 164.395 constitutes a categorical CIMT and that Petitioner is therefore statutorily ineligible for cancellation o f
rem oval under 8 U.S.C. § 1229b. Additionally, the BIA held that P etitioner failed to establish m em bership in a “particular social group,” so he was n ot entitled to withholding o f
rem oval under 8 U.S.C. § 1 23 1 ( b)(3)(A). Petitioner then filed this tim ely petition for review.A G UI R R E B A R B O S A V

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A. S ection 1 64.395 and Crimes Involving Mo ra l Turpitude

To determ ine whether se ction 164.395 is a CIMT, we follow the thr e e -step process m andated by Descamps v. United States , 570 U.S. 254 (2013):

At the first step, we com

pare the elem ents o f the state offense to the elem ents of the g eneric offense defined by fede r a l law. If this “categorical approach” reveal s that the elem ents of the state crim e are the sam e as o r narrower than the elem ents of the federal
o ffense, then the state crim e is a categori c al
m atch and every conviction under that statute quali fi es as [a CIMT]. When a statute is “overbroad,” m eaning that it crim inalizes conduct that goes beyond the elem ents of the federal offense, we turn to step two: determ ining whether the statute is “divisible”
or “indivisible.” If the statute is i n d i v isible, “our inquiry ends, b ecause a conviction under
an indivisible, overbroad statute can never serve as a predicate offense.” Only when a sta tute is overbroad and divisible do we turn to step three—the “m odified categorical approach.” At this step, we m ay exam ine certain d o cum ents from the defendant’s record of c onviction to determ ine what elem ents of the divisib le statute he was convicted of violating.A G UI R R E B A R B O S A V

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Almanza-Arenas v. Lynch , 815 F.3d 469, 475 (9th Cir. 2 016) (en b anc) (quoting Lopez-Valencia v. Lync h , 798 F.3d 863, 867–68 (9th Cir. 2015)).
1. Step One: Categorical Approach

To determ ine whether a state crim inal statute is categorically a CIMT, we use a two-step process. CastrijonGarcia v. Holder , 704 F.3d 1205, 1 208 (9th Cir. 2013). F irst,
we “identify the elem ents of the statute of convic t i o n

. ” Id. Because “the BIA has no special exp ertise by virtue of its statut o ry responsibilities in construing state or federal crim inal statutes,” w e review this step d e novo. Id. (internal q u o tatio n m ark s and brackets om itted). Second, we “co m p are th e elem ents of the statute of conviction to the gene ri c defi nition of a [CIMT] and decide whether the conviction
m eets that definition.” Id. “The B IA’s conclusion that a particular crim e does or does not involve mo r a l turpitude is subject to different standards of review depending on whether the BIA issues or relies on a p ublished decision in com ing to its conclusi o n .” Nunez v. Holder , 594 F.3d 1124, 1 129 (9th Cir. 2010). Here, the BIA n either issued nor relied on its o wn published d ecision. Therefore, “we defer to its conclusion to the extent that it has the ‘power t o pe r su a de.’” Id. (quoting Marmolejo-Campos v. Holder , 558 F. 3 d 903, 909 (9th Cir. 2009) (en banc)).
The qu es t ion at this step is “not whether some of the conduct p rohibited by the statute is m orally turpitudinous, but rather whether all of the conduct prohibited by the statute is
m orally turpitudinous.” Morales-Garcia v. Holder , 567 F.3d 1058, 1062 (9th Cir. 2009) (internal quotation m arks and bra c k e t s om itted). The Imm igration and Nationality A ct (“INA”) does not d efine the term “m oral turpitude” or d etailA G UI R R E B A R B O S A V

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R 9 particular crim es involvi ng m oral turpitude. Mendoza v. Holder , 623 F.3d 1 2 99, 1302 (9th Cir. 2010). W e have noted that “‘m oral turpitude’ is perhaps the quintessential exam ple of an am biguous phrase.” Marmolejo-Campos , 558 F.3d at 909. Despite that am biguity, there is agreem e nt th at “m oral turpitude” generally inheres in offenses i nvolving fraud or those that are inherently “base, vile, or depraved—if they offend society’s m ost fundam ental values, or shock society’s conscience.” Mendoza , 623 F.3d at 1302; see, e.g. , In re Flores , 17 I. & N. Dec. 225, 227–28 (B.I.A. 1980). “These two categories, however, are n ot exhaustive.” Rivera
v. Lynch , 8 16 F.3d 1064, 1074 (9th Ci r. 2016) (providing
comm on law perjury as an exam ple of a CIMT that “does not fit neatly into the two-part fram ework”).
“Absent consistent o r logical rules to follow as we determ ine whether a cri m e (other than one involving fraud) involves m oral turpitude, our m ost u seful guidance often
com es from com

paring the cri me with others that we have previously deem ed m orally turpitudinous.” Nunez , 594 F.3d at 1131. When analyzing robbery offenses, we have
com pared robbery offenses to theft offenses, m any of which involve m oral turpitude. S ee Mendoza , 623 F .3d at 1303–04 (“The BIA’ s d e t e rm ination that robbery is a CIMT is also a l o g ical outgrowth of its holding that theft offenses are CIMTs.”). H ere, the B IA held that section 164.395 “describes an offense that is committed by a defendant who
em ploys the use or threatened use of physical force with the intent to commit the theft o r unauthorized use of a v ehicle.” The decision cites Mendoza , 6 23 F.3d at 1303–04, which analogized robbery to theft and applied that com p aris o n t o hold that California’s robbery statute is categorically a C IMT.A G UI R R E B A R B O S A V

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B ut O reg o n R ev ised S tatu tes section 164

. 3 9 5 i s m aterially broader than the C alifo rnia robbery statute at issue in Mendoza

. Specifically, section 1 6 4. 395 encom p asses the
un authorized use of a vehicle, which does not include a s an essential elem ent an intent to deprive the owner of his or her property permanently

. S ee State v. Pusztai , 3 4 8 P. 3 d 241, 243–44 (Or. Ct. App. 2015) (holding that unauthorized use o f
a vehicle un der section 164.135 requires knowing use of the vehicle but does not require an intent to deprive the owner o f the vehicle perm anently). Under longstandin g B IA precedent, “a theft o f

fense [was] not categorically a crim e o f
m oral turpitude if the statute of conviction is broad enough to crim inalize a taking with intent t o d eprive the owner of his property only temp o r arily.” Almanza-Arenas , 815 F.3d at 476 (quoting Castillo-Cruz v. Holder , 581 F.3d 1154, 1159 (9th Cir. 2009)).

W e recognize that the B IA recently adopted a m ore expansive standard fo r determ ining whether a theft o ffense constitutes a CIMT. See In re Diaz-Lizarraga , 26 I. & N

. Dec. 847, 854–55 (B.I.A. 2016). Because Petitioner pleaded no contest to the relevant charge before the BIA changed its interpretation, the new standard does not apply retroactively to h is case. See Garcia-Martinez v. Sessions , 886 F.3d 1291, 1 29 6 (9th Cir. 2 018). A ccordingly, under the th eft fram ework for a CIMT applicab l e to Petitioner, section 164.395 is n ot a categorical CIMT. 2

2 By contrast, perm anent deprivation is n ot a required elem ent when considering whether a theft offense is an aggravated fe l o ny under INA § 101(a)(43)(G). Ngaeth v. Mukasey , 545 F.3d 796, 800–01 (9 th C i r. 2008) (per curiam).A G UI R R E B A R B O S A V

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R 11 Robbery includes the additional fact o r o f actual o r threatened violence. State v. Hamilton , 233 P .3d 432 , 436 (Or. 2010). But it is clear that a c o nv iction under section 164.395 requires only m inim al physical force. S ee, e.g. , State v. Johnson , 168 P.3d 312, 314–15 (Or

. Ct. App. 2007) (holdin g that sufficient evidence supported a conviction under section 164.395 ev en th ough the v ictim only “felt that she was losing her purse”). “Non-fraudulent CIMTs alm ost always involve an intent to harm som eone, “ Mtoched
v. Lynch , 786 F.3d 1210, 1216 (9th C ir. 2015) (i nt e rn al qu o t ation m arks om itted), or an “intent to injure, actual injury, o r a protected class of victim ,” Turijan v. H older , 744 F.3d 617, 619 (9th Cir. 2014); Castrijon-Garcia , 704 F.3d at 1213. Because section 1 64.395 requires only
m inim al physical force, the statute does not m eet the level o f fo r c e required to be a C IMT. Therefore, we hold th at , although robbery under section 164.395 involves a taking o f property and the thr e atened o r actual use of f o rce, the
m inim al force required for conviction is insufficient to label the crim e a CIMT.
2. Step Two: Divisibility

A f ter d etermin in g th at section 1 6 4

. 3 9 5 is n o t categorically a CIMT, we ordinarily proceed to step two, that is, deciding wheth er the statute is d ivisible or indivisible. A lmanzaArenas , 815 F.3d at 476–77. The governm ent argues that we should rem and this case to the BIA to address the question o f divisibility. W e disagre e

. “ We owe no d eference to the decision of the BIA on [divisibility] and there is n o reason to rem and for the BIA to decide the issue of divisibility in the first instance.” Sandoval v. Sessions , 8 66 F.3d 986, 993 (9th Cir. 2017).A G UI R R E B A R B O S A V

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On the m erits of the divisibility inq uiry, the governm ent did not argue to us that section 1 64.395 is divisible

. W e therefore d eem the issue waived

. S ee Rizk v. H

older , 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (holding that issues not raised in the opening brief are waived).

Hav ing held that P etitioner’s conviction is not fo r a CI MT, w e rem and this m atter to the BIA to consider on th e m erits Petitioner’s request for cancellation of rem oval.

B. “Particular Social Group” Determination

To secure withholding o f rem o val, a petiti oner m ust dem onstrate that his “l i fe

. . . would be threatened in that country because of [his] race, religion, nationality,
m em bership in a particular social group, or political opinion.” 8 U.S.C. § 123 1 ( b) ( 3 )(A). Petitioner argues that the B IA legally and constitutionally erred, because it did not provide
a reasoned explanation for rejecting hi s ar g um ent that individuals “returni ng to Mexico [from ] the United States [who] are belie v e d to be wealthy” constitute a “particular
soc i a l g r oup” within the m eaning o f the INA. Wh ether a group constitutes a “particular social group” under the INA is a q ues tion of law that w e review de novo. Pirir-Boc v. Holder , 750 F.3d 1077, 1081 (9th Cir. 2014).
The BIA’s decision cited Delgado-Or t i z v. H older , 600 F.3d 1 1 48, 1151–52 (9th Cir. 2010) (per curiam ), in which we held that the proposed social group, “‘returning Mexicans from the United States,’

. . . is too broad to qualify
as a cognizable social group.” And we have clearly held that “im puted wealthy Am ericans” are not a discrete class o f persons recognized as a p articular social group. Ra mirezM u n oz v. Lynch , 816 F.3d 1226, 1229 (9th Cir. 2016). WeA G UI R R E B A R B O S A V

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conclude that Petitioner’s p ropos e d particular social group, like the groups in Delgado-Ortiz and Ramirez , is too broad to qualify as a cognizable “particular social group.” Accordingly, we deny the petition as to Petitioner’s particular social group.
Petition GRANTED in p art and DENI ED in part; REMANDED w ith instructions. Costs on appeal awarded to Petitioner.

BERZON, Circuit Judge, concurring:

I concur in the m ajority opinion in full. I write separately to join the chorus of voices calling for renewed consideration
as to whether the phrase “crim e involving m oral turpitude” is unconstitutionally vague.
As Judge Flet cher recently noted, “[d]espite m any years of trying, courts and adm inistrators have not b een able to establish coherent criteria” for d eterm ining whether an offense constitutes a crim e involving m o ral turpitude. IslasVeloz v. Whitaker , 9 14 F.3d 124 9 , 1258 (9th Cir. 2 019) (Fletcher, J., concurring). Earli e r , I m ade a sim ilar ob servation myself. See Marmolejo-Campos v. H older , 558 F.3d 903, 922 (9th Cir. 2009) (en banc) ( Be r z o n , J., dissenting) (“[I]t is hard to say that any articulable principle distinguishes the offenses that are C IMTs from those that are not.”). Judge Fletcher and I are not the first to m ake these observations, and I am confident that we will not be the last. See, e.g. , Arias v. Lynch , 8 34 F. 3 d 8 23 , 830 (7th Cir. 2 016)A G UI R R E B A R B O S A V

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R 14 (Posner, J., concurring) (“It is preposterous that that stale, antiquated, and, worse, m eaningless phrase should continue to be a part of Am erican law.”); Marciano v. INS, 4 5 0 F.2d 1022, 1026 n.1 (8th Cir. 1971) (Eisele, J., dissenting) (“[T]hat t h e p h r a s e ‘ c r i m e i n v o l v i n g mo r a l tu rp i tu d e ’ i s unconstitutionally vague and v iolates the due process clause

. . . seem s m anifest by the varie ty an d i n consistency of the various opinio n s attem

p tin g to d eal with the phrase.”); Jordan
v. De G eo r

ge , 341 U.S. 223, 232 (1951) (Jackson, J., dissenting) (“[T]he p hrase ‘crim e involving m oral turpitude’

. . . has no sufficiently definite m eaning to be a constitutional standard for deportation.”); see a lso Jennifer Lee Koh, Crimmigration and the Void for V agueness Do c trine , 2016 W is. L. Rev. 1127, 1177–79; Lindsay M. Kornegay & Evan Tsen L ee, Why Deporting Immigrants for “Crimes Involving Moral Tu r

p itude” Is Now Unconstitutional , 13 Duke J. Const. L. & Pub. Pol’y 47, 48–49 (2017).
The Suprem e Court has recognized that “the failure o f ‘persistent efforts

. . . to establish a stan d ar d ’ c an provide evidence of vagueness.” Johnson v. United States , 135 S. Ct. 2551, 2558 (2015) (quoting United Sta tes v. L

. C ohen Grocery Co. , 255 U.S. 81, 91 (1921)). This case provides yet another exam

ple. Under longstanding Board o f Imm igration Appeals (BIA) precedent, a theft statute does not constitute a crim e involving m oral turpitude if the st atut e crim inalizes tem porary takings. See, e.g. , Matter o f H- , 2 I. & N

. Dec. 864, 865 (B.I.A. 1947); see a lso A lmanza-Arenas v. Lynch , 815 F .3d 469, 476 (9th C i r

. 2 0 1 6 ) (en banc). The prim ary opinion holds that, because thi rd-degree robbery under secti on 1 64.395 of the Oregon Revised Statutes covers tem porary takings, it does not constitute a conviction for a crim e involving m oral turpitude. But an imm igrant who faces dep o rt ation today m ay well face a different result; in 2016,A G UI R R E B A R B O S A V

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the BIA departed from this decades-old interpretation. S ee Matter o f Diaz-Lizarraga , 2 6 I. & N. Dec. 847, 855 (B. I.A. 2016); see also Garcia-Martinez v. Sessions , 886 F.3d 1291, 1296 (9th Cir. 2018). Recognizing that “‘m oral turpitud e ’ is perhaps the quintessential examp l e of an am biguous phrase,” we have
attem pted to resolve these cases o n a case-by-case ba s i s

. Marmolejo-Campos , 5 58 F .3d at 909. “Absent consistent o r logical rules to follow as we determ ine whether a cr ime

. . . involves m oral turpitude, o ur m ost u seful guidance often
com es from co mp aring the crim e with others that we have previously deem ed m orally turpitudinous.” Nunez v. H older , 594 F.3d 1124, 1131 (9th Cir. 2 010). This approach has been,
as Judge Fletcher stated, a “failed enterp r ise.” Islas-Veloz , 914 F.3d at 1261 (Fletcher, J., concurring). W e should instead recognize that, “[a]bsent consistent or logical rules,” Nunez , 594 F.3d at 1131, th e p hrase “crim e involving m oral turpitude” is unconstitutionally vague.

I recognize that history is not on our s i d e

. T h e term “crim e involving m oral turp itude” has persisted in our imm igration law since 1891, and in our comm on law tradition for nearly a century longer. See Julia Ann Sim on-Kerr, Moral Turpitude , 2012 Utah L. Rev. 10 0 1 , 1010, 1039. Indeed, in holding in 1951 that the term was not void for vagueness, the Suprem e Court thought it “signific ant th at the p hrase has been part of the imm igration laws for m ore than sixty years.” De George , 341 U.S. at 2 2 9 ; see also Martinez-de Ryan v. Whitaker , 909 F.3d 2 47, 252 (9th Cir. 2018). Comm itted to the principle o f stare decisis, we judges are loath to upset long-settled doctrine. As the Suprem e Court has recognized, however, “ sta r e d

ecisis does not m atter for its own sake. It
m atters because it ‘p ro mo tes th e ev e nh a n d ed , p redictab le, an dA G UI R R E B A R B O S A V

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consistent developm ent of legal principles.’” Johnson , 1 35 S. Ct. at 2563 (quoting Payne v. Tennessee , 501 U.S. 808, 827 (1991)).

In Johnson , the Court recognized that “[d]ecisions under the residual clause have proved t o b e anything but evenhanded, p redictable, or consistent.” Id. The sam e is true of our tortured attem

pts to find logical consistency in the term “m o r al turpitude.” E specially given the revitalization o f the void-for-vagueness do ctrine in Johnson and Sessions v. Di ma ya , 1 38 S. C t. 1204 (2018), the tim e is ripe for reconsideration of this issue.