Carlos Rene Rivas-Gomez v. Alberto R. Gonzales, Attorney General

441 F.3d 1072 Carlos Rene RIVAS-GOMEZ, Petitioner, v. Alberto R. GONZALES, Attorney General. No. 03-72087. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2004. Filed April 3, 2006. Philip Smith, Portland, OR, for the petitioner. Nicole Hope Nelson, Hecht & Smith, LLP, Portland, OR, for the petitioner. Leslie McKay, U.S. Department of Justice, Washington, D.C., for the respondent. Keith Bernstein, U.S. Department of Justice, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before EDWARD LEAVY, STEPHEN S. TROTT, Circuit Judges, and LOUIS H. POLLAK, * Senior District Judge. TROTT, Circuit Judge. 1 This petition for review raises the question of whether a conviction under Oregon Revised Statutes ("ORS") § 163.355 (rape in the third degree), which criminalizes as a felony "sexual intercourse with another person under 16 years of age," constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101 (a)(43)(A). We conclude, as did the Immigration Judge ("IJ"), that it does. However, because the IJ erroneously applied a heightened standard when deciding whether to grant a…

This petition for review raises the question of whether a conviction under Oregon Revised Statutes (“ORS”) § 163.355 (rape in the third degree), which criminalizes as a felony “sexual intercourse with another person under 16 years of age,” constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101 (a)(43)(A). We conclude, as did the Immigration Judge (“IJ”), that it does. However, because the IJ erroneously applied a heightened standard when deciding whether to grant a waiver under 8 U.S.C. § 1159 (c), we grant the petition in part and remand.

BACKGROUND

Carlos Rene Rivas-Gomez (“Rivas”), a native and citizen of Guatemala, entered the United States in 1997 as an asylee. In 2001, Rivas pleaded guilty to felony rape in the third degree pursuant to ORS § 163.355. He was placed on three years’ formal probation under Oregon’s “Sex Offender Provisions.” These provisions made Rivas eligible under Oregon law for registration and supervision as a “predatory sex offender.” ORS § 181.585-181.592. The charge arose out of a sexual relationship between Rivas, who was nineteen years old at the time, and a fourteen-year-old girl The Immigration and Naturalization Service (“INS”) 1…

dissenting from Part A:

If I agreed with the court’s determination that the offence to which petitioner Rivas pled guilty, and, for which he received a sentence of probation, constituted, an “aggravated felony” within the meaning of 8 U.S.C. § 1101 (a)(43)(A), and hence that he should be removed to his native Guatemala, I would join the court’s determination that the Immigration Judge erred in assessing Rivas’s waiver application and that the matter should be remanded for further proceedings. But I am not in agreement with the court’s ruling that Rivas’s offense constituted an “aggravated felony.” Therefore, I would grant Rivas’s petition for review with direction to remand this matter to the IJ to reopen removal proceedings and to rescind the removal order.

I

At the age of fifteen, petitioner Rivas, a native of Guatemala, was admitted to the United States as an asylee. Four years later, Rivas, then nineteen and residing with his family in Oregon, was charged with the crime, under Oregon law, of “[rjape in the third degree,” which is defined as “sexual intercourse with another person under 16 years of age.” ORS § 163.355. The charge grew out of Rivas’s sexual relationship with…