857 F.3d 1005
9th Cir.2017Background
- Federico Diego, a Guatemalan national, was granted asylum in 1999 but never adjusted to LPR. In 2002 he was indicted in Oregon for multiple crimes and pled guilty to attempted first-degree sexual abuse under Or. Rev. Stat. § 163.427(1)(a)(A), admitting he attempted sexual contact with B.C., a child under 14.
- In 2011 DHS charged Diego as removable as an aggravated felon based on that conviction; an IJ found the conviction constituted an aggravated felony and terminated his asylee status, denied adjustment and waiver (discretionary), and denied withholding/CAT relief as inapplicable or unproven.
- The BIA affirmed, holding § 163.427 divisible and that the indictment/plea established conviction under subparagraph (1)(a)(A) (victim <14), which is per se sexual abuse of a minor and thus an aggravated felony.
- Diego petitioned for review, arguing his Oregon attempted sexual abuse conviction is not a categorical match to the federal generic offense of sexual abuse of a minor.
- The Ninth Circuit reviewed de novo whether the conviction is an aggravated felony, applied the Descamps three-step/divisibility and modified categorical approach, and recognized it lacks jurisdiction over discretionary relief denials under § 1159.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Or. Rev. Stat. § 163.427(1)(a) is divisible between subparts (A)–(C) | Diego: subparts are alternative means of one offense, not separate elements; Parkins shows legislature intended a single crime | Government: text, plea/indictment, and Oregon case law show subparts are alternative elements creating distinct offenses | Divisible: subparagraphs (A)–(C) are alternative elements, not merely means |
| Whether Diego was convicted under subparagraph (1)(a)(A) (victim <14) | Diego: plea petition shouldn’t be read to incorporate indictment facts or conclusively establish victim’s age | Government: indictment and plea track (1)(a)(A); plea admits Count 3 and restates age-specific factual allegation | Conviction under (1)(a)(A) is established by indictment + plea; Vidal standard satisfied |
| Whether conviction under (1)(a)(A) matches the generic federal offense of sexual abuse of a minor | Diego: Oregon statute (and attempt) may not match federal definitions or generic attempt | Government: sexual contact with a victim <14 is per se abusive and matches federal elements; attempt is an aggravated felony too | A conviction under (1)(a)(A) is categorically sexual abuse of a minor and thus an aggravated felony; challenge to Oregon attempt statute waived |
| Whether court may review denial of discretionary relief (adjustment/waiver) | Diego: agency erred in denying adjustment/waiver | Government: denials are discretionary and unreviewable | Court lacks jurisdiction over discretionary denials under § 1159; review limited to legal question of aggravated-felony status |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (Sup. Ct.) (establishing categorical/divisibility framework for comparing state statutes to generic federal offenses)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct.) (distinguishing elements from means; modified categorical approach guidance)
- Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (applying Descamps framework in immigration context)
- Rocha-Alvarado v. United States, 843 F.3d 802 (9th Cir.) (holding § 163.427(1)(a)(A) is sexual abuse of a minor for sentencing; persuasive here)
- Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009) (defining sexual abuse of a minor for immigration purposes)
- United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (holding sexual conduct with a child under 14 is per se abusive)
- United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (requirements for linking charging papers and plea under modified categorical approach)