Frederico Diego De Diego v. Eric Holder, Jr.

Filing

FILED OPINION (SUSAN P. GRABER, SANDRA S. IKUTA and ANDREW D. HURWITZ) DISMISSED IN PART; DENIED IN PART. Judge: SSI Authoring, FILED AND ENTERED JUDGMENT. [10449596]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FEDERICO DIEGO DE DIEGO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

No. 13-72048
Agency No.
A077-424-906

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2017
Seattle, Washington
Filed May 26, 2017
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta

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DIEGO V. SESSIONS
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).

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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In a concurrently filed unpublished memorandum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.

COUNSEL
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.

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.

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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

1

We dispose of the remainder of Diego’s arguments in a concurrently
filed unpublished memorandum disposition. See Diego v. Sessions, — F.
App’x — (9th Cir. 2017).
2

For purposes of this provision, a “refugee” is “any person who is
outside any country of such person’s nationality or, in the case of a person
having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the protection of, that
country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

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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

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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). 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,” AlmanzaArenas, 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 (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

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banc), and other documents that “reflect the crime’s
elements,” Descamps, 133 S. Ct. 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.” AlmanzaArenas, 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 that crime, as the
categorical approach commands, with the relevant generic
offense.” Id. Stated otherwise, we repeat step one—the
categorical approach—but limited to the actual crime of
conviction described in the relevant subpart of the divisible
criminal statute. If this crime’s elements are the same as or
narrower than a generic federal offense that is defined as an
aggravated felony under § 1101(a)(43), then the crime is a
categorical match and a conviction for that offense constitutes
an aggravated felony. See Lopez-Valencia, 798 F.3d at 867.
II
We now turn to the facts of this case. Diego, a native and
citizen of Guatemala, entered the United States without

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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,

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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 8 U.S.C. § 1227(a)(2)(A)(iii), due to his
conviction for attempted sexual abuse in violation of
section 163.427. Diego admitted the factual allegations in the
notice to appear but denied removability. Applying the
modified categorical approach, the IJ concluded that Diego’s
attempted sexual abuse conviction constituted an aggravated
felony for purposes of § 1101(a)(43)(A).
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) adjustment of status to lawful permanent resident under
8 U.S.C. § 1159(b) and waiver of inadmissibility under
8 U.S.C. § 1159(c); (2) withholding of removal under
8 U.S.C. § 1231(b)(3); and (3) relief under the Convention
Against Torture (CAT). Because Diego had been convicted
of an aggravated felony, the IJ determined that Diego was no
longer eligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii),
(B)(i), and granted the government’s motion to terminate his
asylee status, see id. § 1158(c)(2)(B). The IJ then held, in the
alternative, that Diego’s case did not warrant the exercise of

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discretionary relief under § 1159(b) and (c). Finally, the IJ
determined that Diego’s conviction rendered him ineligible
for withholding of removal, and that Diego had not
established eligibility for relief under the CAT.
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
§ 1101(a)(43)(A). The BIA determined that the Oregon
statute of conviction was divisible, that the indictment
reflected that the victim was younger than fourteen, and that
under Ninth Circuit precedent the criminal conduct was per
se abusive. The BIA also held that the IJ had correctly
determined that Diego was ineligible for asylum and
appropriately granted the government’s motion for
termination of Diego’s asylee status.
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 8 U.S.C. § 1252(a)(2)(D), including
whether Diego’s conviction for attempted sexual abuse in the
first degree is an aggravated felony. We review de novo the
BIA’s determination that Diego’s conviction is an aggravated
felony, and we do so without deference to the agency’s
interpretation of state or federal criminal law. Sandoval v.

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Yates, 847 F.3d 697, 699 (9th Cir. 2017). We lack
jurisdiction to review decisions that the INA specifies “to be
in the discretion of the Attorney General,” 8 U.S.C.
§ 1252(a)(2)(B)(ii), or “any final order of removal against an
alien who is removable by reason of having committed” an
aggravated felony, id. § 1252(a)(2)(C). Thus, we lack
jurisdiction to consider any discretionary aspect of the
agency’s decision to deny Diego’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. See Latter-Singh v. Holder, 668 F.3d
1156, 1164 (9th Cir. 2012) (holding that we lack jurisdiction
over “the discretionary use of” power under § 1159(c)); cf.
Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th
Cir. 2003) (holding that provisions providing that the
Attorney General “may” take certain action vest
unreviewable “ultimate authority . . . in the discretion of the
Attorney General”).
IV
We now apply the relevant legal principles to the facts of
this case. Diego argues that his Oregon conviction for
attempted sexual abuse, Or. Rev. Stat. § 163.427, is a not an
aggravated felony for purposes of § 1101(a)(43)(A) because
his crime of conviction is not a categorical match to the
generic federal offense of sexual abuse of a minor. Section
163.427 provides:
(1) A person commits the crime of sexual
abuse in the first degree when that person:
(a) Subjects another person to sexual contact
and:

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DIEGO V. SESSIONS
(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 AlmanzaArenas. 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 § 1101(a)(43)(A), Congress
has enumerated the elements of the offense of ‘sexual abuse
of a minor’ at 18 U.S.C. § 2243.” Pelayo-Garcia v. Holder,
589 F.3d 1010, 1013 (9th Cir. 2009) (internal quotation marks
omitted). Under § 2243, a person commits sexual abuse of a
minor if a person “knowingly engages in a sexual act” with
another person who is at least 12 years old, but less than 16,

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and at least four years younger than the defendant. Id.
Second, a crime “may qualify as the federal generic offense
of ‘sexual abuse of a minor’ if: (1) the conduct prohibited by
the criminal statute is sexual, (2) the statute protects a minor,
and (3) the statute requires abuse.” Id. at 1014. For purposes
of this second definition, we have defined “abuse as physical
or psychological harm in light of the age of the victim in
question.” United States v. Medina-Villa, 567 F.3d 507, 513
(9th Cir. 2009) (internal quotation marks omitted).
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.” Or. Rev. Stat. § 163.427(1)(a)(C).
Because the statute as a whole does not categorically match
the generic federal offense, we must proceed to the second
step of the Descamps analysis.
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

3

We adopt the Oregon Supreme Court’s nomenclature for describing
section 163.427’s subdivisions from State v. Parkins, 346 Or. 333, 350
(2009) (describing 163.427(1)(a) as a “paragraph” with “three
subparagraphs”).

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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 statutory text joins the
element of subjecting another person to sexual contact to one
of three alternative enumerated circumstances. This phrasing
suggests that the legislature created three different offenses:
subjecting a victim who is less than 14 years old to sexual
contact, or subjecting another person to sexual contact
through the use of forcible compulsion, or subjecting another
person who is incapable of consent for specified reasons to
sexual contact. Or. Rev. Stat. § 163.427(1)(a).
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

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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, AlmanzaArena, 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 (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 (2014). The court used
the same characterization in State v. Nelson, 241 Or. App.
681, 688 (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,” Or. Rev. Stat.
§ 163.427(1)(a)(B), to subject a victim “less than 14 years of
age,” id. § 163.427(1)(a)(A), to three sexual contacts.
346 Or. at 348. The court analyzed this issue under Oregon’s
“anti-merger” statute, id., which provides:

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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.

Or. Rev. Stat. § 161.067(1). Parkins explained that in order
to determine whether the anti-merger statute applies to
paragraph 163.427(1)(a), it was necessary to determine
“whether the legislature intended to create a single crime or
two or more crimes.” 346 Or. at 349. Applying this standard,
Parkins concluded that the state legislature did not intend to
punish a defendant for three separate violations of section
163.427 if the defendant engaged in a single act of sexual
abuse that happened to include all the elements of
subparagraphs (1)(a)(A) through (C). Id. at 355. Parkins
reasoned that the legislature intended section 163.427 to
define the single crime of first degree sexual abuse (as
opposed to lesser degrees of sexual abuse defined by other
statutes), and listed four ways in which a person commits
such an aggravated offense. Id. at 350. Therefore, “[t]he
presence of more than one of the elements that convert a
lower degree of sexual abuse to first-degree sexual abuse” in
the defendant’s conduct “does not convert defendant’s single
act into separate crimes.” Id. at 355.
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

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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

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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.” MedinaLara 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 expressly admits guilt
as to Count 3 of the indictment and restates the offense in
language that tracks the indictment, i.e., admitting the identity
of the victim, whom the indictment identifies as a person
under the age of 14.
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

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federal sexual abuse of a minor offense, and by extension an
aggravated felony for purposes of § 1101(a)(43)(A).4
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

4

Diego was convicted of attempted first degree sexual abuse, but
attempted sexual abuse of a minor is likewise an aggravated felony in the
immigration context. See 8 U.S.C. § 1101(a)(43)(U). In a letter filed the
morning of oral argument, Diego argued for the first time that Oregon’s
attempt statute does not match the generic federal definition of attempt.
Because this issue was not “specifically and distinctly argued and raised”
in Diego’s opening brief, nor raised before the agency, the argument is
waived. Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005)
(quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.2d 912, 919
(9th Cir. 2001)).

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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 8 U.S.C. § 1101(a)(43).
Accordingly, the BIA did not err in concluding that Diego
had been convicted of a particularly serious crime, see
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and therefore terminating
Diego’s asylee status pursuant to § 1158(c)(2)(B). Apart
from this purely legal question, we lack jurisdiction to review
the BIA’s discretionary decisions on the denial of adjustment
of status and waiver of inadmissibility.
PETITION DISMISSED IN PART AND DENIED IN
PART.