Aleksandr Gushtyuk v. Eric Holder, Jr.

544 F. App'x 785

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2013
• Docket: 12-70747
• Status: Unpublished

Opinion

MEMORANDUM **

1. The BIA properly held that Gush-tyuk’s conviction for assault in the second degree with sexual motivation, in violation of Washington Revised Code sections 9A.36.021(l)(a) and 9.9A.835, constituted a conviction for an aggravated 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, 157 Wash.2d 188, 137 P.3d 835 (2006); In re Barr, 102 Wash.2d 265, 684 P.2d 712 (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 Moncriejfe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (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 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.