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NINTH CIRCUIT REVOKES ASYLUM STATUS AFTER COMPLICATED ANALYSIS OF THE EFFECT OF A CRIMINAL CONVICTION FOR ATTEMPTED SEXUAL ABUSE

By Susan E. Hill, May 26, 2017

Asylum status protects a person from being sent back to a country where he would be persecuted.  However, that status can be revoked due to subsequent criminal behavior that amounts to an “aggravated felony” as defined by immigration law.  In Diego v. Sessions, No. 13-72048 (May 26, 2017), the Court went through the complicated framework to analyze the effect of Diego’s criminal conviction.  He was convicted under Oregon law for attempted sexual abuse.  Each state defines and describes their laws differently, and this case is an excellent refresher guide on how to pick apart a state statute to see if it penalizes behavior that amounts to an aggravated felony under federal immigration law.

In this case, the wording of the Oregon state statute did not equally match the numerous descriptions of an aggravated felony in immigration law.  This meant that the Immigration Court had to inspect the statute’s elements more closely to identify a description of the conduct that Diego was punished for.  The Oregon statute was worded in a way that described three alternative types of conduct.

Now the Court had to determine which of the three conducts that Diego was found guilty of committing.  During this inspection, the Immigration Court could look at all documents filed in Diego’s criminal case, and it also looked at case law in Oregon to help define the language that the Oregon statute used.  Ultimately, this analysis showed that Oregon was punishing Diego for conduct similar to sexual abuse of a minor, which is defined as an aggravated felony under immigration law.

The intersection of immigration law and criminal law is extremely complex, and Courts must be held to exact methods of analysis.  The case law is numerous and constantly evolving, and the stakes are high, such as in Diego’s case.  Hill & Piibe routinely handles these kinds of complicated criminal analyses, and often takes them on appeal, such as in a recent published case we had this year at the Ninth Circuit: Duran v. Lynch, No. 12-70930 (Ninth Circuit, 1/20/17).

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