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Diego v. Sessions

United States Court of Appeals, Ninth Circuit

May 26, 2017

Federico Diego de Diego, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted March 6, 2017 Seattle, Washington

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-424-906

          Alma David (argued), Global Justice Law Group PLLC, Seattle, Washington; Erica Schommer, Rios & Cruz P.S., Seattle, Washington; for Petitioner.

          Edward 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.

         SUMMARY[*]

         Immigration

         The 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 status.

         In 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).

         First, 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).

         The 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.

         In a concurrently filed unpublished memorandum disposition, the panel denied and dismissed Diego's petition for review with respect to the remainder of his arguments.

          OPINION

          IKUTA, CIRCUIT JUDGE:

         The 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.[1]

         I

         In order to explain Diego's arguments, we begin by reviewing the relevant legal framework.

         A

         The 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 . . . ."[2] 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. § 1159(c).

         B

         In 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).

         At the 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.

         If the 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). ...


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