Yanphol Patino-Cardenas v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2019
• Docket: 17-70743
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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 instead. 18 I. & N. Dec. 244, 247 (BIA 1982); see

Anaya-Ortiz v. Holder, 594 F.3d 673, 679 (9th Cir. 2010). We conclude that the IJ

properly applied the Matter of Frentescu analysis. The IJ considered (1) the

serious nature of Patino-Cardenas’ conviction, (2) the fact that he attempted to

have sexual contact with a child under 14 when he was 19, and (3) the light

sentence that was imposed on him, and reasonably concluded that Patino-Cardenas

was convicted of a particularly serious crime.

3. Substantial evidence supports the BIA’s determination that Patino-

Cardenas is not eligible for deferral of removal under the Convention Against

Torture. The record does not compel us to conclude it is “more likely than not”

that Patino-Cardenas would be tortured if removed to Mexico. 8 C.F.R.

§ 208.17(a). He claims that gang members who currently extort his grandfather

would torture him upon his return because he has tattoos, is part of his Page 4 of 4

grandfather’s family, and will be perceived as a wealthy deportee from the United

States. However, Patino-Cardenas has failed to provide adequate evidence

showing that he, his grandfather, or any similarly situated individual in his

grandfather’s town has been tortured for those reasons. In addition, the evidence in

his expert witness’s declaration is not sufficiently particularized to Patino-

Cardenas to suggest that he is likely to face torture.

4. The IJ did not violate Patino-Cardenas’ due process rights by denying his

motion for a continuance and thus preventing his expert witness from testifying.

Patino-Cardenas has not established that his rights were violated in a way that

could have affected the outcome of the proceedings. See Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 926 (9th Cir. 2007). The IJ considered the expert

witness’s written declaration in place of live testimony and did not question the

expert’s credibility. Patino-Cardenas also fails to identify any additional

information that the expert could have provided had he been able to testify in

person.

PETITION FOR REVIEW DENIED.