Federico Diego de DIEGO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
No. 13-72048
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 2017, Seattle, Washington. Filed May 26, 2017
1005
Before: SUSAN P. GRABER, SANDRA S. IKUTA, and ANDREW D. HURWITZ, Circuit Judges.
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
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
B
In order to determine whether a predicate state conviction is an aggravated felo
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
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, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)), then the statute is divisible, see Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). If the statute merely lists alternate means of satisfying a single element, then it is indivisible. See Almanza-Arenas, 815 F.3d at 477-78.
If “distinguishing between ‘alternative elements’ and ‘alternative means‘” in a disjunctively phrased state statute is difficult, Descamps, 133 S.Ct. at 2285 n.2, we proceed to the second phase, “examining the Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime,” Almanza-Arenas, 815 F.3d at 478. The Shepard documents include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), as well as the clerk‘s minute order, see United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc) (per curiam), abrogated on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), and other documents that “reflect the crime‘s elements,” Descamps, 133 S.Ct. at 2285 n.2, and are “of equal reliability” to those the Supreme Court has approved, Snellenberger, 548 F.3d at 701.
In the third and final phase, “we verify that our interpretation [of the state statute of conviction] is the same as the interpretation of the [relevant state] courts.” Almanza-Arenas, 815 F.3d at 479. In other words, “we must verify that our interpretation of elements versus means is consistent with how [the state] would instruct a jury as to this offense.” Id.
If this three-phase analysis leads us to conclude that the statute is divisible, we proceed to the third step for determining if a state statute of conviction is an aggravated felony: the modified categorical approach. At this step, we look to the Shepard documents again, but this time “to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2249. Once we identify the crime of conviction, we “then compare
II
We now turn to the facts of this case. Diego, a native and citizen of Guatemala, entered the United States without inspection in December 1997. About one year after his arrival in this country, he applied for asylum and withholding of removal, which an immigration judge (IJ) granted in June 1999. The BIA affirmed the IJ‘s decision in September 2002, but Diego never filed an application to adjust his status to that of lawful permanent resident.
In February 2002, Diego was arrested in Oregon after a young woman reported to the police that Diego had entered her home in the middle of the night and inappropriately touched both her and a minor female in the home. According to the young woman, Diego had awakened her, touched her breasts through her clothes, and attempted to pull down her pants. The young woman instructed Diego to leave, but Diego instead went to the living room of the home where he came upon B.C., a nine-year-old friend of the young woman‘s sister. When the young woman found Diego with his arms wrapped around B.C., she called the police. B.C. told police that Diego had put his lip against the side of her mouth and touched her upper thigh.
In March 2002, the State of Oregon indicted Diego on two counts of burglary in the first degree, one count of theft in the third degree, one count of sexual abuse in the third degree and, as relevant here, one count of attempted sexual abuse in the first degree in violation of section 163.427 of the Oregon Revised Statutes. Count 3 of the indictment charged that “on or about February 17, 2002, in Washington County, Oregon, [Diego] did unlawfully and intentionally attempt to subject [B.C.], a person less than 14 years of age, to sexual contact.”
Diego subsequently failed to attend one of his court hearings and was indicted for failure to appear. Ultimately, Diego pleaded guilty to the two counts of burglary in the first degree, one count of attempted sexual abuse in the first degree, and one count of failure to appear in the first degree; the state dropped the remaining charges. Diego‘s “petition to enter plea” stated that he wished to plead guilty to Count 3, attempted sexual abuse in the first degree, and: “I plead guilty and request the Court to accept my plea and to have it entered on the basis of [o]n 2/17/02 in Washington County, I entered an apartment and while inside, I attempted to subject [B.C.] to sexual contact.”
In September 2011, Diego was served with a notice to appear, alleging in pertinent part that he was removable as an aggravated felon, see
After the IJ ruled that Diego was removable, the government moved to terminate Diego‘s asylee status and withholding of removal. Diego, in turn, sought (1) ad
The BIA dismissed Diego‘s appeal in May 2013, holding that the IJ had not erred in concluding that Diego‘s conviction pursuant to section 163.427 was for sexual abuse of a minor and therefore constituted an aggravated felony under
Diego timely petitioned for review. He contends that the IJ and BIA erred in concluding that his conviction for attempted sexual abuse under section 163.427 constitutes an aggravated felony, and by extension erred in terminating his asylee status and denying his application for adjustment of status and waiver of inadmissibility.
III
We have jurisdiction to decide questions of law raised in a petition for review, see
IV
We now apply the relevant legal principles to the facts of this case. Diego argues that his Oregon conviction for attempted sexual abuse,
(1) A person commits the crime of sexual abuse in the first degree when that person:
(a) Subjects another person to sexual contact and:
(A) The victim is less than 14 years of age;
(B) The victim is subjected to forcible compulsion by the actor; or
(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or
(b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.
A
We analyze Diego‘s argument by using the three-step process articulated in Descamps and clarified in Almanza-Arenas. We begin the Descamps analysis by asking whether section 163.427 criminalizes the same or less conduct as the elements of the generic federal offense of sexual abuse of a minor. Almanza-Arenas, 815 F.3d at 475.
We have provided two definitions of “sexual abuse of a minor.” First, “for purposes of
On its face, section 163.427 criminalizes more conduct than the generic federal offense of sexual abuse of a minor because a person may violate the statute by subjecting adults to abusive sexual contact. For example, the statute criminalizes sexual contact with any person (whether a minor or an adult) who is incapable of consent by virtue of being “mentally incapacitated.”
B
We have already determined that section 163.427 is a divisible statute, in that paragraphs (1)(a) and (1)(b) define two different crimes.3 United States v. Rocha-Alvarado, 843 F.3d 802, 807 n.2 (9th Cir. 2016), petition for cert. filed, No. 16-7885, — U.S.L.W. — (U.S. Feb. 6, 2017). We have not, however, considered whether paragraph 163.427(1)(a)‘s subparagraphs are similarly divisible, and so we turn to the three-phase process set forth in Almanza-Arenas. At phase one, we consider paragraph 163.427(1)(a)‘s text, and note that it uses disjunctive phrasing. The stat
We “confirm this statutory interpretation by ... examining the Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime.” Almanza-Arenas, 815 F.3d at 478. Because Count 3 of Diego‘s state court indictment, which charged him with “unlawfully and intentionally attempt[ing] to subject [B.C.], a person less than 14 years of age, to sexual contact,” in violation of section 163.427, tracks subparagraph (1)(a)(A), but lacks any text referencing subparagraphs (1)(a)(B) or (C), the indictment “indicate[s], by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” Mathis, 136 S.Ct. at 2257. Similarly, Diego‘s petition to enter a plea admits to the conduct of “attempt[ing] to subject [B.C.] to sexual contact,” which again tracks the wording of subparagraph (1)(a)(A), in that it admits only that he subjected B.C., a victim known to be less than 14 years of age, to sexual contact. Like the indictment, the plea petition makes no reference to the conduct described in subparagraphs (1)(a)(B) or (C). From these documents, we infer that Oregon treated the victim‘s age as a necessary fact that the state was required to prove beyond a reasonable doubt to secure Diego‘s conviction, i.e., an element of the offense. See Descamps, 133 S.Ct. at 2290.
Finally, we verify our interpretation of section 163.427 by considering the interpretation of Oregon courts, Almanza-Arenas, 815 F.3d at 480, which again demonstrate that the three subparagraphs in paragraph 163.427(1)(a) are alternative elements of the offense. In State v. Marshall, for example, the Oregon Supreme Court characterized “sexual contact” and “subjecting the victim to ‘forcible compulsion,‘” a phrase specific to subparagraph 163.427(1)(a)(B), as “the two elements of the crime.” 350 Or. 208, 217, 253 P.3d 1017 (2011). Similarly, in State v. Gray the Court of Appeals of Oregon described “subjected to forcible compulsion”—the operative language of subparagraph 163.427(1)(a)(B)—as an “element” of the crime. 261 Or.App. 121, 125, 322 P.3d 1094 (2014). The court used the same characterization in State v. Nelson, 241 Or.App. 681, 688, 251 P.3d 240 (2011). These cases point persuasively to the conclusion that the disjunctive enumerated list of subparagraphs (A) through (C) is a list of alternative elements, not means.
Diego argues that State v. Parkins is to the contrary. Parkins considered whether a defendant could be convicted for more than one count of sexual abuse if the defendant‘s conduct violated more than one subparagraph of 163.427(1)(a). 346 Or. at 335. The defendant in Parkins used “forcible compulsion,”
When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.
Diego argues that this reasoning compels the conclusion that subparagraphs 163.427(1)(a)(A) through (C) describe different means to commit the same offense, rather than listing alternative elements for separate offenses. We disagree. Parkins‘s conclusion that a defendant cannot be convicted of three different violations of section 163.427 for a single criminal episode does not address the question whether the three subparagraphs contain alternative elements that effectively create different crimes. Indeed, Parkins stated that these subparagraphs constitute “three alternative elements for first-degree sexual abuse.” Id. at 350-51 (emphasis added). This statement supports our conclusion that the state may convict the defendant of the offense described in paragraph 163.427(1)(a) only by proving one of the subparagraphs beyond a reasonable doubt. See, e.g., Marshall, 350 Or. at 217. Parkins stands only for the proposition that the state may not convict a defendant of three different offenses stemming from the same incident by proving all the elements contained in each of the three subparagraphs (1)(a)(A) through (C).
In light of the statutory text, Shepard documents, and state court decisions, we conclude that subparagraphs 163.427(1)(a)(A) through (C) are divisible.
C
We now proceed to step three of the process for determining whether a state conviction is an aggravated felony, and apply the modified categorical approach. Mathis, 136 S.Ct. at 2249.
As noted above, the relevant Shepard documents in this case—the indictment and plea petition—track the language of subparagraph (1)(a)(A), which criminalizes sexual contact with a victim “less than 14 years of age,” with no reference to the remaining subparagraphs. Accordingly, we conclude that Diego was convicted under subparagraph (1)(a)(A).
Diego argues that we cannot consider his plea petition because it does not expressly state that it incorporates the facts alleged in the indictment, citing United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc). We reject this argument. Vidal merely requires that “[w]hen a court using the modified categorical approach to determine whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment, that link must be clear and convincing.” Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014). Here, the link between the indictment and the plea petition meets that standard because the plea petition ex
We now apply the categorical approach to compare subparagraph 163.427(1)(a)(A) to the generic federal offense of sexual abuse of a minor. A conviction under subparagraph 163.427(1)(a)(A) necessarily requires sexual contact with a person under the age of 14. We have held that sexual conduct with a person under the age of 14 is per se abusive. United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010); United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). Therefore, 163.427(1)(a)(A) criminalizes (1) sexual conduct (2) with a minor (3) that constitutes abuse, the same elements included in the generic federal offense. See Valencia-Barragan, 608 F.3d at 1107; Baron-Medina, 187 F.3d at 1147 (holding that “(a) the touching of an underage child‘s body (b) with a sexual intent” constitutes generic federal “sexual abuse of a minor”). Thus, a conviction under 163.427(1)(a)(A) is categorically a generic federal sexual abuse of a minor offense, and by extension an aggravated felony for purposes of
Rocha-Alvarado confirms our analysis. In that case, applying the modified categorical approach, we held that subparagraph 163.427(1)(a)(A) was a “crime of violence” for federal sentencing purposes. 843 F.3d at 805. We reached this conclusion by reasoning that subparagraph 163.427(1)(a)(A) was categorically “sexual abuse of a minor,” one of the categories of “crime of violence.” Id. at 807-08. As we have previously explained, “the analysis ... for a ‘crime of violence’ in the sentencing context” is “the same” as the analysis “whether a statute of conviction constitute[s] an ‘aggravated felony’ in the immigration context.” Valencia-Barragan, 608 F.3d at 1107 n.1; see also Pelayo-Garcia, 589 F.3d at 1013 n.1. In other words, our conclusion that a state offense is a categorical match with generic federal sexual abuse of a minor for sentencing purposes carries over to immigration cases because, in both contexts, we ask the same question: whether the elements of the state crime are the same as or narrower than the elements of the generic federal offense. See Valencia-Barragan, 608 F.3d at 1107 n.1. As we held in Rocha-Alvarado, “[a]ny conviction” under subparagraph 163.427(1)(a)(A) “falls within the federal definition of ‘sexual abuse of [a] minor.‘” 843 F.3d at 808.
V
We hold that paragraph 163.427(1)(a) of the Oregon Revised Statutes is divisible, and 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
PETITION DISMISSED IN PART AND DENIED IN PART.