NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS RICKY DULDULAO AGUILAR, AKA No. 17-70235 Ricky D. Aguilar, Agency No. A038-466-570 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 3, 2020 Honolulu, Hawaii Before: FARRIS, McKEOWN, and BADE, Circuit Judges. Petitioner Aguilar challenges the denial of his petitions for cancellation of removal, withholding of removal, and deferred removal pursuant to the Convention Against Torture. We review de novo all claims of legal or constitutional error, including whether a particular conviction constitutes an aggravated felony, Diego * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v. Sessions, 857 F.3d 1005, 1011 (9th Cir. 2017), and review factual findings for substantial evidence, Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009). We hold that the BIA did not err in finding that Aguilar had been convicted of an aggravated felony and we deny his petition for review. Under the categorical approach outlined in Diego, 857 F.3d at 1008–09, Aguilar’s conviction under section 707-732(1)(b) of the Hawaii Revised Statutes constitutes an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(A). Section 707-732 is divisible in that it sets out alternative elements as a means of defining multiple separate crimes. Review of the statutory text and the admissible conviction-related documents confirms that Aguilar was convicted of subsection (1)(b). See Diego, 857 F.3d at 1009–10 (discussing the “modified categorical approach”). The elements of section 707-732(1)(b) are as follows: (1) the defendant must have subjected a minor to “sexual contact;” (2) the defendant must have done so knowingly, or been “aware” that he was submitting the minor to sexual contact; (3) the defendant must have been aware that the minor was not married to him; and (4) the minor must have been younger than 14 at the time of the sexual contact. State v. Arceo, 928 P.2d 843, 857 (Haw. 1996). We compare this state statute to the federal generic definition of “sexual abuse of a minor,” see 8 U.S.C. § 2 1143(a)(43)(A). If the state statute criminalizes a broader range of conduct than the generic definition of the federal crime, the offense is not a categorical match, and cannot constitute an aggravated felony. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015). There are two generic federal definitions of “sexual abuse of a minor.” Diego, 857 F.3d at 1012. Under the relevant definition here, a state offense qualifies as “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.” Pelayo-Garcia v. Holder, 589 F.3d 1010, 1014 (9th Cir. 2009) (citing United States v. Medina-Villa, 567 F.3d 507, 513 (9th Cir. 2009)). The second and third prongs are undoubtedly satisfied here. ...
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