Filed: Nov. 14, 2013
Latest Update: Mar. 02, 2020
Summary: FILED NOT FOR PUBLICATION NOV 14 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEKSANDR DMITRIYEVICH No. 12-70747 GUSHTYUK, Agency No. A071-420-999 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 5, 2013** Seattle, Washington Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges. 1. The BIA properly held that
Summary: FILED NOT FOR PUBLICATION NOV 14 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEKSANDR DMITRIYEVICH No. 12-70747 GUSHTYUK, Agency No. A071-420-999 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 5, 2013** Seattle, Washington Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges. 1. The BIA properly held that ..
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FILED
NOT FOR PUBLICATION NOV 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEKSANDR DMITRIYEVICH No. 12-70747
GUSHTYUK,
Agency No. A071-420-999
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 5, 2013**
Seattle, Washington
Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges.
1. The BIA properly held that Gushtyuk’s conviction for assault in the
second degree with sexual motivation, in violation of Washington Revised Code
sections 9A.36.021(1)(a) and 9.9A.835, constituted a conviction for an aggravated
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
felony as defined in 8 U.S.C. § 1101(a)(43). His crime of conviction “has as an
element the use, attempted use, or threatened use of physical force against the
person of another,” United States v. Lawrence,
627 F.3d 1281, 1288 (9th Cir.
2010) (internal quotation marks omitted), and therefore is categorically a “crime of
violence” as defined in 18 U.S.C. § 16(a).
2. Gushtyuk’s argument, based on the state of Washington’s acceptance of
guilty pleas in cases in which there is a factual basis for the original charge against
the defendant but not for the ultimate charge of conviction, does not support the
contrary conclusion. See State v. Zhao,
137 P.3d 835 (Wash. 2006); In re Barr,
684 P.2d 712 (Wash. 1984). In applying the categorical approach, we examine the
range of conduct encompassed by the elements of the crime of conviction and
determine whether that crime is one to which Congress intended to attach
immigration consequences. See Barragan-Lopez v. Holder,
705 F.3d 1112, 1115
(9th Cir. 2013). This inquiry is not concerned with the facts underlying the
conviction. See Moncrieffe v. Holder,
133 S. Ct. 1678, 1684 (2013). It therefore
does not matter whether those facts would establish the elements of an aggravated
felony.
3. Pursuant to 8 U.S.C. § 1252(a)(2)(C), because Gushytuk is “an alien who
is removable based on his conviction for an aggravated felony,” we lack
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jurisdiction to review the final order of removal he challenges. See Barragan-
Lopez, 705 F.3d at 1114.
DENIED IN PART AND DISMISSED IN PART.
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