## Facts

- Pedro Aguirre Barbosa is a citizen of Mexico who entered the United States sometime between 1997 and 1999.
- In 2008, Barbosa was charged with and pleaded no contest to third-degree robbery under Oregon Revised Statute § 164.395.
- ORS § 164.395 criminalizes using or threatening the immediate use of physical force on another, with specified intent, in the course of committing or attempting to commit theft or the unauthorized use of a vehicle.
- The statute reaches conduct where the intent is only to take property temporarily (through the unauthorized-use-of-a-vehicle predicate), and Oregon case law allows conviction with relatively low levels of force.
- In 2010, the Department of Homeland Security began removal proceedings by serving Barbosa with a notice to appear.
- Barbosa conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b, withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and other relief.
- The Immigration Judge denied relief, concluding that the ORS § 164.395 conviction was a crime involving moral turpitude (CIMT) that made Barbosa ineligible for cancellation of removal, and concluding Barbosa had not shown eligibility for withholding.
- The Board of Immigration Appeals dismissed Barbosa’s appeal, agreeing that ORS § 164.395 was categorically a CIMT and rejecting Barbosa’s proposed particular social group of individuals returning to Mexico who are believed to be wealthy.
- Barbosa petitioned the Ninth Circuit for review.

## Issues

1. Whether Oregon third-degree robbery under ORS § 164.395 is categorically a CIMT that bars cancellation of removal under 8 U.S.C. § 1229b.
2. Whether Barbosa’s proposed group—individuals returning to Mexico who are believed to be wealthy—is a qualifying “particular social group” for withholding of removal under 8 U.S.C. § 1231(b)(3)(A).

## Decision

- The Ninth Circuit granted the petition for review in part and denied it in part.
- The court held that ORS § 164.395 is not categorically a CIMT.
- The court declined to move to the modified categorical approach because the government did not argue divisibility, treating that argument as waived.
- The court remanded to the agency to consider Barbosa’s cancellation-of-removal application on the merits without the categorical CIMT bar.
- The court affirmed denial of withholding of removal, holding that the proposed social group (returnees believed to be wealthy) is too broad to qualify as a particular social group.

## Legal Principles

- Under the categorical approach, a conviction is a CIMT only if the least culpable conduct covered by the statute necessarily involves conduct that is “vile, base, or depraved” and contrary to accepted moral standards.
- A theft-type offense is not categorically a CIMT under the prior BIA rule if it reaches takings with intent to deprive an owner only temporarily; where the BIA later adopts a broader CIMT interpretation, that newer interpretation may not be applied retroactively to a plea entered before the change.
- A robbery statute is overbroad for CIMT purposes if it can be satisfied by a predicate offense that does not require intent to permanently deprive (such as unauthorized use of a vehicle).
- The presence of a force element does not automatically make every conviction under a robbery statute a CIMT when the statute and state case law allow conviction based on minimal force.
- If a statute is overbroad, a court ordinarily asks whether it is divisible, but divisibility arguments can be treated as waived on petition for review if not raised by the government; without divisibility, the court does not apply the modified categorical approach.
- For withholding of removal based on a “particular social group,” the asserted group must be defined by characteristics that are immutable or fundamental, and it must satisfy particularity and social distinction.
- Groups described in broad economic terms—such as returnees who are believed to be wealthy—do not qualify as a particular social group where the feared harm is tied to general criminal motives rather than persecution on account of a protected ground.

## Conclusion

The Ninth Circuit held that Oregon third-degree robbery under ORS § 164.395 is not categorically a crime involving moral turpitude, so Barbosa was not automatically barred from seeking cancellation of removal and the case was remanded for consideration of that relief on the merits, but the court affirmed the denial of withholding of removal because “individuals returning to Mexico who are believed to be wealthy” is too broad to be a qualifying particular social group.


Barbosa v. Barr, 926 F.3d 1053 (2019)