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statutepleafelonyasylumdeportation

attorneyfelonyasylumdeportation

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Diego v. Sessions

Facts

Diego, a native of Guatemala, entered the U.S. without inspection in December 1997 and was granted asylum in June 1999. In February 2002, he was arrested for attempting to sexually abuse a minor after entering a home and inappropriately touching a young girl. He was indicted on multiple charges, including attempted sexual abuse in the first degree, and ultimately pleaded guilty to this charge. In September 2011, he was served with a notice of removal based on his aggravated felony conviction.

Diego, a native and citizen of Guatemala, entered the United States without 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.

Issue

Whether Diego's conviction for attempted sexual abuse under Oregon law constitutes an aggravated felony under federal law, making him deportable.

Rule

The court applied the three-step process from Descamps v. United States to determine if a state conviction qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43). This involves assessing whether the state statute criminalizes conduct that matches the elements of a generic federal offense.

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) .

Analysis

The court found that the elements of Oregon's attempted sexual abuse statute were divisible and that Diego's conviction fell under a subparagraph that constituted sexual abuse of a minor as defined by federal law. The court confirmed that the BIA correctly determined that Diego's conviction was for a particularly serious crime, thus justifying the termination of his asylee status.

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.

Conclusion

The court denied Diego's petition for review, affirming the BIA's decision that his conviction constituted an aggravated felony and that he was properly found to be deportable.

Who won?

The government prevailed in the case, as the court upheld the BIA's determination that Diego's conviction for attempted sexual abuse was an aggravated felony, justifying his deportation.

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