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Flores-Vega v. Barr

Facts

David Flores-Vega, a native and citizen of Mexico, entered the U.S. in 2002 and became a lawful permanent resident in 2003. In 2009, he pleaded guilty to strangulation under Oregon law, which involved impeding another person's normal breathing. Following his conviction, the Department of Homeland Security initiated removal proceedings against him, citing his conviction as an aggravated felony. Flores-Vega contested his removability, arguing that his conviction did not qualify as a crime of violence.

Flores-Vega applied for defensive immigration relief in the form of asylum; withholding of removal under the INA; and protection under the Convention Against Torture ('CAT'), which includes withholding and deferral of removal.

Issue

Whether Flores-Vega's conviction for strangulation under Oregon law constitutes a crime of violence under the Immigration and Nationality Act, making him ineligible for asylum and subject to removal.

We are asked to decide whether a conviction under Oregon Revised Statute 163.187(1) for 'strangulation' is categorically a crime of violence for purposes of removability under the Immigration and Nationality Act ('INA').

Rule

A conviction qualifies as a crime of violence under 18 U.S.C. 16(a) if it has as an element the use, attempted use, or threatened use of physical force against another person. An aggravated felony is per se a particularly serious crime for purposes of asylum and withholding of removal.

A 'crime of violence' is defined at 18 U.S.C. 16 as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Analysis

The court applied the categorical approach to determine that Flores-Vega's conviction for strangulation necessarily involved the use of physical force capable of causing injury, thus categorizing it as a crime of violence. The BIA's determination that the conviction was for a particularly serious crime was found to be an abuse of discretion; however, the court upheld the denial of withholding of removal based on substantial evidence that Flores-Vega did not demonstrate eligibility for relief.

We consider whether the state statute describes 'an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.' 18 U.S.C. 16(b); Flores-Lopez, 685 F.3d at 862. The physical force 'must actually be violent in nature,' meaning it is 'capable of hurting or causing injury[.]' Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (citation omitted).

Conclusion

The Ninth Circuit denied Flores-Vega's petition for review, affirming the BIA's decision that he was removable due to his conviction for an aggravated felony.

Flores-Vega has been convicted of a crime of violence within the meaning of 16(a). He is accordingly removable under 8 U.S.C. 1227(a)(2)(A)(iii) as a noncitizen 'who [was] convicted [**13] of an aggravated felony.'

Who won?

The government prevailed in the case, as the court upheld the BIA's decision to deny Flores-Vega's application for asylum and withholding of removal based on his conviction for a crime of violence.

The BIA upheld the determination that strangulation under O.R.S. 163.187(1) is categorically a crime of violence and therefore an aggravated felony, which made Flores-Vega removable and ineligible for asylum.

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