Yanphol Valentin Patino- Cardenas v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YANPHOL VALENTIN PATINO-
CARDENAS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 17-70743
Agency No. A062-197-293
MEMORANDUM*
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).
FILED
MAY 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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

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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.

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