ALEKSANDR GUSHTYUK V. ERIC HOLDER, JR., No. 12-70747 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 14 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEKSANDR DMITRIYEVICH GUSHTYUK, No. 12-70747 Agency No. A071-420-999 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 5, 2013** Seattle, Washington Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges. 1. The BIA properly held that Gushtyuk s conviction for assault in the second degree with sexual motivation, in violation of Washington Revised Code sections 9A.36.021(1)(a) and 9.9A.835, constituted a conviction for an aggravated * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). felony as defined in 8 U.S.C. § 1101(a)(43). His crime of conviction has as an element the use, attempted use, or threatened use of physical force against the person of another, United States v. Lawrence, 627 F.3d 1281, 1288 (9th Cir. 2010) (internal quotation marks omitted), and therefore is categorically a crime of violence as defined in 18 U.S.C. § 16(a). 2. Gushtyuk s argument, based on the state of Washington s acceptance of guilty pleas in cases in which there is a factual basis for the original charge against the defendant but not for the ultimate charge of conviction, does not support the contrary conclusion. See State v. Zhao, 137 P.3d 835 (Wash. 2006); In re Barr, 684 P.2d 712 (Wash. 1984). In applying the categorical approach, we examine the range of conduct encompassed by the elements of the crime of conviction and determine whether that crime is one to which Congress intended to attach immigration consequences. See Barragan-Lopez v. Holder, 705 F.3d 1112, 1115 (9th Cir. 2013). This inquiry is not concerned with the facts underlying the conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). It therefore does not matter whether those facts would establish the elements of an aggravated felony. 3. Pursuant to 8 U.S.C. § 1252(a)(2)(C), because Gushytuk is an alien who is removable based on his conviction for an aggravated felony, we lack 2 jurisdiction to review the final order of removal he challenges. See BarraganLopez, 705 F.3d at 1114. DENIED IN PART AND DISMISSED IN PART. 3

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