NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LAZARO VIZCARA-RAMIREZ, No. 19-70019 Petitioner, Agency No. A205-490-234 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 11, 2020** Seattle, Washington Before: McKEOWN, HUNSAKER, and BUMATAY, Circuit Judges. Lazaro Vizcara-Ramirez, a native of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for cancellation of removal and voluntary departure. The petition is granted. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. An alien convicted of an aggravated felony, including attempted rape, is ineligible for cancellation of removal and voluntary departure. 8 U.S.C. §§ 1229b(b)(1)(C), 1229c(b)(1), 1227(a)(2)(A)(iii), 1101(a)(43)(A), (U). To determine whether a state conviction is an aggravated felony, we employ the categorical and modified categorical approaches. Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020). The analysis essentially “ask[s] whether the statutory elements of the crime of conviction match the elements of the generic offense.” Id. We review the question de novo. Jauregi-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 2020). 2. In 2013, Vizcara was convicted of attempted third-degree rape in violation of Revised Code of Washington (“RCW”) §§ 9A.28.020, 9A.44.060. At the time of his conviction, RCW § 9A.44.060(1) defined third-degree rape as when: [A] person engages in sexual intercourse with another person, not married to the perpetrator: (a) Where the victim did not consent . . . to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or (b) Where there is threat of substantial unlawful harm to property rights of the victim. There is no dispute that RCW § 9A.44.060 (2013) is categorically overbroad due to the threat-to-property alternative. See Castro-Baez v. Reno, 217 F.3d 1057, 2 1059 (9th Cir. 2000) (The generic definition of rape requires “non-consensual sexual intercourse with a person.”). 3. Since § 9A.44.060 encompasses conduct beyond federal generic rape, we next need to decide if the statute is divisible. See Syed, 969 F.3d at 1017. Divisibility turns on whether a statute’s enumerated alternatives are “elements or means.” Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). A statute is divisible if it “lists elements in the alternative—thereby creating multiple, distinct crimes within a single statute.” Syed, 969 F.3d at 1017. If “a jury must unanimously agree on which of the . . . statutory alternatives a defendant committed to return a conviction,” the alternatives are elements; otherwise, they are means. United States v. Robinson, 869 F.3d 933, 938 (9th Cir. 2017). To answer the question, we consult state law, including the face of the statute, possible differences in punishment, and state-court ...
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