NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YANPHOL VALENTIN PATINO- No. 17-70743 CARDENAS, Agency No. A062-197-293 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 14, 2019** Portland, Oregon Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges. 1. The Board of Immigration Appeals (BIA) did not err in ruling that Yanphol Patino-Cardenas was convicted of a crime involving moral turpitude, which renders him removable. See 8 U.S.C. § 1227(a)(2)(A)(i). Based on the indictment, the plea petition, and the judgment, we conclude * 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). Page 2 of 4 that Patino-Cardenas was convicted of attempted sexual abuse of a minor under Oregon law. See Shepard v. United States, 544 U.S. 13, 16 (2005); Diego v. Sessions, 857 F.3d 1005, 1014–15 (9th Cir. 2017). For purposes of the moral turpitude analysis, we consider the underlying crime to determine whether an inchoate offense constitutes a crime involving moral turpitude. See Barragan- Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007). Thus, even if the Oregon attempt statute prohibits mere solicitation, as Patino-Cardenas argues, we would still analyze the underlying crime of sexual abuse of a minor to determine whether he was convicted of a crime involving moral turpitude. Our court has held that sexual abuse of a minor under Oregon Revised Statutes § 163.427(1)(a)(A) is divisible from the rest of the Oregon sexual abuse statute for purposes of the categorical approach. See Diego, 857 F.3d at 1012–14. Sexual abuse of a minor is a crime involving moral turpitude because it is a sexual offense involving “a protected class of victim[s].” Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013). We thus conclude that attempted sexual abuse of a minor under Oregon law is a crime involving moral turpitude. (We also note that, even if Oregon courts give attempted sexual abuse of a minor the broad interpretation that Patino-Cardenas suggests they do, the crime would be similar to communication with a minor for immoral purposes under Washington law, which we have also held to be a crime involving moral turpitude. See Islas-Veloz v. Page 3 of 4 Whitaker, 914 F.3d 1249, 1251 (9th Cir. 2019).) 2. The BIA did not abuse its discretion in concluding that Patino-Cardenas was convicted of a particularly serious crime, which renders him ineligible for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). The BIA was not required to determine whether attempted sexual abuse under Oregon law is an aggravated felony to reach this conclusion. It was proper for the BIA to rely on the immigration judge’s (IJ) application of the Matter of Frentescu factors ...
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