What is the test for determining whether section 164.395 is divisible or indivisible?

After determining that section 164.395 is not categorically a CIMT, we ordinarily proceed to step two, that is, deciding whether the statute is divisible or indivisible. Almanza-Arenas , 815 F.3d at 47677. The government argues that we should remand this case to the BIA to address the question of divisibility. We disagree. "We owe no deference to the decision of the BIA on [divisibility] and there is no reason to remand for the BIA to decide the issue of divisibility in the first instance." Sandoval v. Sessions , 866 F.3d 986, 993 (9th Cir. 2017).

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