Diego de Diego v. Sessions, No. 13-72048 (9th Cir. 2017)
Annotate this CaseAfter the BIA determined that petitioner was an aggravated felon because of his conviction for attempted sexual abuse under Oregon law, Oregon Revised Statutes 163.427, the agency determined that he was deportable, terminated his asylee status, denied his request for adjustment of status to lawful permanent resident, and denied waiver of admissibility. The Ninth Circuit held that it lacked jurisdiction to consider any discretionary aspect of the BIA's decision to deny petitioner's application for adjustment of status and waiver of inadmissibility under 8 U.S.C. 1159(b) and (c), as the Attorney General's discretion is specified in the statute. Applying the three-step process articulated from Descamps v. United States, the panel held that the Oregon statute does not categorically match the generic federal offense; the statute is divisible; and, under the categorical approach, a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony for purposes of 8 U.S.C. 1101(a)(43). Therefore, the BIA did not err in concluding that petitioner had been convicted of a particularly serious crime. The panel dismissed the petition in part and denied it in part.
Court Description: 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). DIEGO V. SESSIONS 3 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.
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