and Submitted March 6, 2017 Seattle, Washington
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A077-424-906
David (argued), Global Justice Law Group PLLC, Seattle,
Washington; Erica Schommer, Rios & Cruz P.S., Seattle,
Washington; for Petitioner.
Earl Wiggers (argued) and Jennifer L. Lightbody, Senior
Litigation Counsel; Mary Jane Candaux, Assistant Director;
Office of Immigration Litigation, United States Department of
Justice, Washington, D.C.; for Respondent.
Before: Susan P. Graber, Sandra S. Ikuta, and Andrew D.
Hurwitz, Circuit Judges.
panel denied in part and dismissed in part Diego's
petition for review of the Board of Immigration Appeals'
decision concluding that his conviction for attempted sexual
abuse under Oregon Revised Statutes § 163.427 is an
aggravated felony that warranted termination of his asylee
determining that Diego's conviction is an aggravated
felony under 8 U.S.C. § 1101(a)(43)(A), the panel
applied the three-step process articulated in Descamps v.
United States, 133 S.Ct. 2276 (2013), and clarified in
Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir.
2016) (en banc).
the panel held that the Oregon statute is not a categorical
match to the generic federal offense of sexual abuse of a
minor because the Oregon statute criminalizes more conduct
than the generic federal offense. Second, the panel held
that, in light of the statutory text, Shepard
documents, and state court decisions, subparagraphs
163.427(1)(a)(A) through (C) are divisible. Third, under the
modified categorical approach, the panel concluded that Diego
was convicted under subparagraph (1)(a)(A), and that this
subparagraph is categorically a generic federal sexual abuse
of a minor offense, and by extension an aggravated felony
under 8 U.S.C. § 1101(a)(43)(A).
panel also concluded that it lacked jurisdiction to review
the BIA's discretionary decisions on the denial of
adjustment of status and waiver of inadmissibility.
concurrently filed unpublished memorandum disposition, the
panel denied and dismissed Diego's petition for review
with respect to the remainder of his arguments.
Board of Immigration Appeals (BIA) concluded that Federico
Diego de Diego was an aggravated felon because of his
conviction for attempted sexual abuse under Oregon law.
See Or. Rev. Stat. § 163.427. The BIA therefore
determined that Diego was deportable, terminated his asylee
status, denied his request for adjustment of status to lawful
permanent resident, and denied waiver of inadmissibility.
Diego petitions for review of these decisions. We deny the
petition in part and dismiss it in part.
order to explain Diego's arguments, we begin by reviewing
the relevant legal framework.
Immigration and Nationality Act (INA) provides that the
Secretary of Homeland Security or the Attorney General
"may grant asylum to an alien who has applied for asylum
in accordance with [applicable procedures] if the Secretary
of Homeland Security or the Attorney General determines that
such alien is a refugee . . . ." 8 U.S.C. §
1158(b)(1)(A). A grant of asylum, however, "does not
convey a right to remain permanently in the United
States." Id. § 1158(c)(2). Rather, an
alien's asylee status "may be terminated if the
Attorney General determines" that the alien is
ineligible for asylum. See id. § 1158(c)(2)(B).
An alien is ineligible for asylum "if the Attorney
General determines that . . . the alien, having been
convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of the United
States." Id. § 1158(b)(2)(A)(ii). For
purposes of the "particularly serious crime"
determination, the INA provides that "an alien who has
been convicted of an aggravated felony shall be considered to
have been convicted of a particularly serious crime."
Id. § 1158(b)(2)(B)(i). Under the INA, an
"aggravated felony" includes "sexual abuse of
a minor, " id. § 1101(a)(43)(A), and
"an attempt . . . to commit" such abuse,
id. § 1101(a)(43)(U). An alien who has
"been convicted by a final judgment of a particularly
serious crime" is also ineligible for withholding of
removal, id. § 1231(b)(3)(B)(ii), and may be
denied other discretionary relief, such as adjustment of
status to lawful permanent resident, id. §
1159(b), or waiver of inadmissibility, id. §
order to determine whether a predicate state conviction is an
aggravated felony for purposes of the INA, we apply a
three-step process set forth in Descamps v. United
States, 133 S.Ct. 2276 (2013). See Almanza-Arenas v.
Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc).
first step, we ask whether the elements of the alien's
state statute of conviction criminalize more conduct than, or
the same conduct as, the elements of a generic federal
offense included in the definition of "aggravated
felony" set forth at § 1101(a)(43). See
id. (quoting Lopez-Valencia v. Lynch, 798 F.3d
863, 867-68 (9th Cir. 2015)). Under this categorical
approach, if "the elements of the state crime are the
same as or narrower than the elements of the federal offense,
then the state crime is a categorical match and every
conviction under that statute qualifies as an aggravated
felony." Lopez-Valencia, 798 F.3d at 867. By
contrast, if the elements of the state statute of conviction
criminalize more conduct than the elements of the generic
federal offense, then the state statute is overbroad and is
not a categorical match. Id. at 867-68.
statute is overbroad, we proceed to step two and determine
whether the state statute of conviction is
"divisible" or "indivisible."
Id. We employ a three-phase process to determine
whether a state statute is divisible. First, we consider the
statute's text. Descamps, 133 S.Ct. at 2285
& n.2. If the text is drafted with a list of disjunctive
items that comprise alternative elements, such that the
statute "effectively creates 'several different . .
. crimes, '" id. at 2285 (quoting
Nijhawan v. Holder, 557 U.S. 29, 41 (2009)), then
the statute is divisible, see Mathis v. United
States, 136 S.Ct. 2243, 2256 (2016). ...