FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 LUDWIN ISRAEL LOPEZ-AGUILAR,                   No. 17-73153
                       Petitioner,
                                                Agency No.
                    v.                         A074-394-680

 WILLIAM P. BARR, Attorney General
 of the United States,                            OPINION
                        Respondent.



         On Petition for Review of an Order of the
             Board of Immigration Appeals

           Argued and Submitted March 5, 2019
                    Portland, Oregon

                    Filed January 28, 2020

  Before: Susan P. Graber and Marsha S. Berzon, Circuit
   Judges, and John R. Tunheim, * Chief District Judge.

                 Opinion by Judge Berzon;
                Concurrence by Judge Graber



    *
      The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, sitting by designation.
2                   LOPEZ-AGUILAR V. BARR

                          SUMMARY **


                           Immigration

    The panel granted Ludwin Israel Lopez-Aguilar’s
petition for review of a decision of the Board of Immigration
Appeals, which found him removable based on his robbery
conviction under Oregon Revised Statutes section 164.395,
and held that section 164.395 is not a categorical theft
offense and therefore not an aggravated felony under section
101(a)(43)(G) of the Immigration and Nationality Act.

    Comparing section 164.935 to the generic definition of
theft, the panel held that section 164.935 is facially
overbroad because a generic theft offense is defined as the
taking of property or an exercise of control over property
without consent with the criminal intent to deprive the owner
of rights and benefits of ownership, whereas section 164.935
includes consensual takings via theft by deception. The
panel concluded that because it is possible to commit theft
by deception with the consent of the owner, Oregon’s theft
statute expressly includes conduct outside of the generic
definition.

    The panel further held that the additional robbery
elements of section 164.395—namely, the use or threat of
force to obtain the property—do not limit the reach of the
statute to match the generic definition of theft. Noting that
a force element generally implies a lack of consent, the panel
pointed out that section 164.395 expressly contemplates that
such force may be used to compel another person, rather than
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  LOPEZ-AGUILAR V. BARR                      3

the property owner, to deliver the property or to engage in
other conduct which might aid the commission of the theft.
For example, a defendant could be convicted if she
threatened force against a third party to compel that third
party to convince a property owner, by deception, to give the
property to the defendant consensually. Similarly, a
defendant could be convicted if the taking was consensual
(although deceptive), but force was used against a third party
to prevent that person from retrieving the property right after
it was received by the thief. Consequently, the panel
concluded that, even with the additional robbery elements,
the text of the statute expressly includes situations involving
consensual taking, and therefore is facially overbroad.

   Because the government did not argue that section
164.935 was divisible, the panel deemed the issue waived,
and ended its inquiry without proceeding to the modified
approach.

    Concurring, Judge Graber, joined by District Judge
Tunheim, agreed with the opinion in full, but wrote
separately to add her voice to the substantial chorus of
federal judges pleading for the Supreme Court or Congress
to “rescue us from the morass of the categorical approach,”
which requires the performance of absurd legal gymnastics,
and produces absurd results.


                         COUNSEL

Jennifer K. Lesmez (argued), Law Offices of Jennifer
Lesmez, Selah, Washington; Jerome Mayer-Cantú, Oakland,
California; for Petitioner.
4                LOPEZ-AGUILAR V. BARR

Imran R. Zaidi (argued) and Matthew A. Spurlock, Trial
Attorneys; John S. Hogan and John W. Blakeley, Assistant
Directors; Joseph H. Hunt, Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.

Kari Hong, Ninth Circuit Appellate Program, Boston
College Law School, Newton, Massachusetts, for Amici
Curiae American Immigration Lawyers Association,
Florence Immigrant & Refugee Rights Project, and
Innovation Law Lab.


                        OPINION

BERZON, Circuit Judge:

     Petitioner Ludwin Israel Lopez-Aguilar, a native and
citizen of Guatemala, seeks review of a final order of the
Board of Immigration Appeals (“BIA”) finding him
removable pursuant to § 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (“INA”), because of his
conviction under Oregon Revised Statutes section 164.395,
and denying his application for relief under the Convention
Against Torture (“CAT”). We grant Lopez-Aguilar’s
petition because we conclude that section 164.395 is not a
categorical theft offense and, therefore, not an aggravated
felony under § 101(a)(43)(G) of the INA. Because we
conclude that Lopez-Aguilar is not removable, we do not
reach the question whether the record supports the BIA’s
denial of CAT relief.
                    LOPEZ-AGUILAR V. BARR                            5

                                  I

    Lopez-Aguilar is a native and citizen of Guatemala. He
entered the United States in 1989, when he was three years
old, and became a legal permanent resident in March 2001,
when his application for suspension of deportation was
granted.

   In 2014, Lopez-Aguilar was convicted of third-degree
robbery in violation of Oregon Revised Statutes section
164.395 and sentenced to 13 months in prison. The
government initiated removal proceedings against Lopez-
Aguilar based on the robbery conviction.

    An immigration judge (“IJ”) found Lopez-Aguilar
removable as an alien convicted of an aggravated felony as
defined in section 101(a)(43)(G) of the INA, which defines
theft offenses for which the term of imprisonment is at least
one year. The BIA agreed that the conviction was for a theft
offense under section 101(a)(43)(G). 1

    The BIA rejected Lopez-Aguilar’s argument that section
164.395 is overbroad because it incorporates theft by
deception and thus covers consensual takings. The BIA
concluded that the statute requires taking property by force,
which negates the consensual nature of theft by deception.
The BIA also rejected Lopez-Aguilar’s argument that
section 164.395 is overbroad because it covers mere
unauthorized use of a vehicle, affirmed the denial of Lopez-
Aguilar’s petition for relief under CAT, and affirmed the
order that Lopez-Aguilar be removed to Guatemala.

    1
     The BIA disagreed with the IJ’s alternative conclusion that Lopez-
Aguilar’s conviction under section 164.395 was for a crime of violence
under section 101(a)(43)(F) of the INA.
6                 LOPEZ-AGUILAR V. BARR

                              II

    We have jurisdiction to review final orders of removal
based on a petitioner’s commission of an aggravated felony
to the extent that the petition “raises . . . questions of law.”
Ngaeth v. Mukasey, 

, 800 (9th Cir. 2008) (per
curiam) (quoting Vizcarra-Ayala v. Mukasey, 

,
872 (9th Cir. 2008)). Whether a particular offense is an
“aggravated felony” under the INA is a question of law that
we review de novo. 

that section 164.395 exceeds the
generic definition of a theft offense because it incorporates
consensual takings via theft by deception, and the force
elements do not impose a requirement that the defendant
engage in a nonconsensual taking. We agree.

    To determine whether a particular conviction is for a
generic offense, we use the categorical and modified
categorical approaches of Taylor v. United States, 

(1990), and Shepard v. United States, 

(2005). Under the categorical approach, we “compare the
elements of the statute forming the basis of the defendant’s
conviction”—here, Or. Rev. Stat. section 164.395—”with
the elements of the ‘generic’ crime.” Descamps v. United
States, 

, 257 (2013). There is a categorical
match “only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” 

statute
of conviction is broader than the generic offense, we next
determine whether the statute is divisible or indivisible.
Medina-Lara v. Holder, 

, 1112 (9th Cir.
2014). Only when an overbroad statute is divisible do we
turn to the “modified categorical approach.” 

–64. An overbroad and indivisible statute
does not constitute a generic crime. 

Medina-

.
                  LOPEZ-AGUILAR V. BARR                       7

                               A

    “A state offense qualifies as a generic offense—and
therefore, in this case, as an aggravated felony—only if the
full range of conduct covered by [the state statute] falls
within the meaning of the generic offense.” United States v.
Alvarado-Pineda, 

, 1202 (9th Cir. 2014)
(citation and internal quotation marks omitted). Gonzales v.
Duenas-Alvarez held that a state conviction is not a
categorical match for its generic counterpart if there is “a
realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the
generic definition of a crime.” 

, 193 (2007).

     There are two ways to show “a realistic probability” that
a state statute exceeds the generic definition. First, there is
not a categorical match if a state statute expressly defines a
crime more broadly than the generic offense. United States
v. Grisel, 

, 850 (9th Cir. 2007) (en banc),
abrogated on other grounds by United States v. Stitt, 

(2018). As long as the application of the statute’s
express text in the nongeneric manner is not a logical
impossibility, the relative likelihood of application to
nongeneric conduct is immaterial. See United States v.
Valdivia-Flores, 

, 1208 (9th Cir. 2017).
Second, a petitioner can show that a state statute exceeds the
generic definition if the petitioner can “point to at least one
case in which the state courts applied the statute” in a
situation that does not fit under the generic definition. United
States v. Ruiz-Apolonio, 

, 914 (9th Cir. 2011)
(citing 

).

   Here, the Oregon robbery statute is facially overbroad
because its “greater breadth is evident from its text.” 

.
8                 LOPEZ-AGUILAR V. BARR

    Under the INA, a conviction for a generic theft offense
that results in a prison term of at least one year is an
aggravated felony. 8 U.S.C. § 1101(a)(43)(G). A generic
“theft” is defined as the “taking of property or an exercise of
control over property without consent with the criminal
intent to deprive the owner of rights and benefits of
ownership, even if such deprivation is less than total or
permanent.” 

(emphasis
added) (quoting Penuliar v. Gonzales, 

, 969
(9th Cir. 2006)).

    The Oregon robbery statute of conviction here provides:

           A person commits the crime of robbery in
           the third degree if in the course of
           committing or attempting to commit theft
           or unauthorized use of a vehicle as
           defined in ORS 164.135 the person uses
           or threatens the immediate use of
           physical force upon another person with
           the intent of:

               (a) Preventing     or     overcoming
                   resistance to the taking of the
                   property or to retention thereof
                   immediately after the taking; or

               (b) Compelling the owner of such
                   property or another person to
                   deliver the property or to engage
                   in other conduct which might aid
                   in the commission of the theft or
                   unauthorized use of a vehicle.
                  LOPEZ-AGUILAR V. BARR                      9

Or. Rev. Stat. § 164.395. Section 164.395 incorporates
Oregon’s definition of theft, which includes “theft by
deception.” Or. Rev. Stat. §§ 164.015(4), 164.085.

    The first requirement of section 164.395 is a theft or
attempted theft or unauthorized use of a vehicle. A theft by
deception satisfies this element. See Or. Rev. Stat.
§§ 164.015(4), 164.085. The generic definition of theft
requires that the taking be without consent. Alvarado-

. We have explained elsewhere that
theft statutes which include theft by deception fall outside
the generic definition for theft. See, e.g., Lopez-Valencia v.
Lynch, 

, 868 (9th Cir. 2015) (explaining that
California’s theft statute is overbroad because it includes
conduct such as theft by false pretenses, which could be
consensual); United States v. Rivera, 

, 1077
(9th Cir. 2011) (same), abrogated on other grounds by
Lopez-Valencia v. Lynch, 

(9th Cir. 2015).
Because it is possible to commit theft by deception with the
consent of the owner, Oregon’s theft statute expressly
includes conduct outside of the generic definition.

    The additional robbery elements of section 164.395—
namely, the use or threat of force to obtain the property—do
not limit the reach of the statute to match the generic
definition of theft. A force element generally implies a lack
of consent—the force can be used, for example, to overcome
resistance or otherwise compel behaviors. But the statute
here expressly contemplates that such force may be used to
“compel[]” “another person,” rather than the property
owner, “to deliver the property or to engage in other conduct
which might aid the commission of the theft.” Or. Rev. Stat.
§ 164.395(1)(b).

   Consequently, even with the additional robbery
elements, the text of the statute expressly includes situations
10                LOPEZ-AGUILAR V. BARR

involving consensual takings. Under subsection (b), a
defendant could be convicted if she threatened force against
a third party to compel that third party to convince a property
owner, by deception, to give the property to the defendant
consensually. See Or. Rev. Stat. § 164.395(1)(b) (covering
threatened force used to “compel[] . . . another person to . . .
engage in [] conduct which might aid in the commission of
the theft”). In that scenario, the property would have been
taken with the consent of the owner, and the force used
would not negate the owner’s consent because the force was
used against a third party without the owner’s knowledge.

    Similarly, under subsection (a), a defendant could be
convicted if the taking was consensual (although deceptive),
but force was used against a third party to prevent that person
from retrieving the property right after it was received by the
thief. In that case, the thief would use “physical force upon
another person with the intent of . . . [p]reventing or
overcoming resistance . . . to retention [of the property]
immediately after the taking.” See 

    Although correctly recognizing that the plain text of
section 164.395 does not require that the defendant engage
in a nonconsensual taking, the BIA reasoned that the force
requirement would necessarily nullify consent, because
“[t]here is no meaningful difference between a taking of
property accomplished against the victim’s will and one
where his ‘consent’ to parting with his property is coerced
through force, fear, or threats,” citing Matter of Ibarra, 26
I. & N. Dec. 809, 811 (B.I.A. 2016). But, as we have noted,
under the plain text of the statute, it is possible to apply the
force needed for a third-degree robbery against a third
person while engaging in a taking that is consensual with
regard to the victim of the robbery. The state statute at issue
in Matter of Ibarra, by contrast, explicitly required “the
                  LOPEZ-AGUILAR V. BARR                     11

felonious taking of personal property in the possession of
another . . . against his will.” 26 I. & N. Dec. at 810 n.2
(emphasis added) (quoting Cal. Penal Code § 211); see also

(“[T]he jury instructions for section 211 of the
California Penal Code require as an element that the
defendant take property from another ‘against that person’s
will.’” (citation omitted)).

    In short, unlike the generic theft offense, section 164.395
does not require that the defendant engage in a
nonconsensual taking. As the Oregon statute expressly
includes consensual takings, it is facially overbroad. See

.

                              B

    Because we hold that the statute is overbroad, we move
to the next step in the analysis: determining whether the
statute is divisible, such that application of the modified
categorical approach is appropriate. See 

–68.

    Oregon’s third-degree robbery statute is indivisible. In
this case, the government did not argue otherwise. “On the
merits of the divisibility inquiry, the government did not
argue to us that section 164.395 is divisible. We therefore
deem the issue waived.” Barbosa v. Barr, 

,
1059 (9th Cir. 2019). Because the statute of conviction is
both overbroad and indivisible, the modified approach “has
no role to play in this case” and the inquiry ends. 

.

                             III

   Accordingly, we hold that section 164.395 is facially
overbroad and indivisible. As it therefore does not qualify as
12                LOPEZ-AGUILAR V. BARR

a categorical theft offense, it does not count as an aggravated
felony under section 101(a)(43)(G) of the INA.

    Because Lopez-Aguilar’s conviction was not for an
aggravated felony, he is not removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). We therefore grant the petition.

     Petition GRANTED.



GRABER, Circuit Judge, with whom Judge Tunheim joins,
concurring:

    I join the majority opinion in full. I write separately to
add my voice to the substantial chorus of federal judges
pleading for the Supreme Court or Congress to rescue us
from the morass of the categorical approach. See, e.g.,
United States v. Brown, 

, 1051–52 (9th Cir.
2018) (Owens, J., concurring) (noting that “countless
judges” have “urg[ed] an end” to the categorical approach);
United States v. Valdivia-Flores, 

, 1210 (9th
Cir. 2017) (O’Scannlain, J., specially concurring) (collecting
cases). The categorical approach requires us to perform
absurd legal gymnastics, and it produces absurd results.

    As the majority opinion explains, Oregon Revised
Statutes section 164.395 is not a categorical match for the
generic theft offense because it incorporates consensual
takings. But I can conceive of very few scenarios in which
a defendant could use, or threaten the immediate use of,
physical force against a third party while carrying out a
taking that was consensual from the property owner’s
perspective. And in my view those scenarios are unlikely to
occur and to be prosecuted under this statute. Regardless of
the existence of possible examples of consensual takings
                  LOPEZ-AGUILAR V. BARR                     13

under section 164.395, the fundamental problem is that, to
escape the consequences of his actions under our
immigration laws, Petitioner need not show that he carried
out a consensual taking. Without a doubt, there are better
ways to decide these cases. See, e.g., 

(advocating for “[a] regime based on the length of
previous sentences, rather than on the vagaries of state law”).

    The categorical approach allows individuals who have
been convicted of serious crimes to avoid removal, so long
as they are “clever enough to find some space in the state
statutory scheme that lies outside the federal analogue.”

. As my colleagues have
noted, we have no discretion in removal cases such as this
one to correct absurd results—indeed, we must turn a blind
eye even when the defendant’s actions underlying his state
conviction unquestionably meet the definition of the generic
federal offense. 

past time for someone with the power to fix this mess
to do so.