Juan Lemus-Huerta v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN LEMUS-HUERTA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1984
Agency No.
A092-418-131
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2023
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and BENNETT, District
Judge.**
Juan Lemus Huerta petitions for review of a decision of the Board of
Immigration Appeals (“BIA”) dismissing his appeal of a final removal order from
an Immigration Judge (“IJ”) based in part on aggravated felony grounds. In 2019,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
FILED
DEC 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
Lemus Huerta pled guilty to two charges, including one offense predicated on
Oregon’s § 163.427(1)(a)(A) for Attempted Sexual Abuse in the First Degree. The
Petitioner contends that intervening case law abrogates the precedent on which the
BIA and IJ relied to conclude that a conviction under this statute constitutes an
“aggravated felony” under 8 U.S.C. § 1101(a)(43).
When the BIA adopts and affirms the IJ’s decision under Matter of Burbano
while providing its own review, we review both the IJ and BIA decisions. Chuen
Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). We review the IJ’s and
BIA’s conclusions of law de novo, including whether an offense is an “aggravated
felony.” Id. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
1. A court may only review a final order of removal if the petitioner has
exhausted all administrative remedies available as of right. 8 U.S.C.
§ 1252(d)(1). If a petitioner properly raises the issue in question before
the IJ and the BIA, the petitioner has not waived or failed to exhaust his
administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19
(2023). Lemus Huerta expressly raised the “aggravated felony” issue
before the IJ and the BIA, both of which based their decisions in part on
this question. The issue properly comes before us. See id.

-- 2 of 4 --

3
2. The Immigration and Nationality Act (“INA”) defines an “aggravated
felony” to include “sexual abuse of a minor” or “an attempt… to
commit” this offense. 8 U.S.C. § 1101(a)(43)(A), (U). To determine if a
state criminal offense constitutes an aggravated felony, courts apply the
categorical approach. See Diego v. Sessions, 857 F.3d 1005, 1009-14
(9th Cir. 2017). For “sexual abuse of a minor,” we consider whether an
offense falls under one of two federal generic definitions: the first based
on the elements of 18 U.S.C. § 2243 for statutory rape, and a second,
broader definition requiring: (1) sexual conduct, (2) with a minor, (3)
constituting abuse. Id. at 1012.
Because ORS § 163.427(1)(a)(A) criminalizes sexual contact with
someone under the age of 14, we held in Diego that this offense falls
under the second definition and constitutes an aggravated felony. Id. at
1012, 1015. The Supreme Court subsequently clarified the federal
generic definition of sexual abuse of a minor but limited its holding to
statutory rape offenses that would fall under the first definition. See
Esquivel-Quintana v. Sessions, 581 U.S. 385, 390-91, 396, 398, 401
(2017). Diego’s holding remains intact. Compare id. with Diego, 857
F.3d at 1015. We have continued to recognize and apply the second,
broader definition. See Mero v. Barr, 957 F.3d 1021, 1022-23 (9th Cir.

-- 3 of 4 --

4
2020); Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1200 (9th Cir.
2018).
ORS § 163.427(1)(a)(A), the subparagraph at issue in Diego, also
provides the predicate offense for the conviction at issue in Lemus
Huerta’s petition. Petitioner here contends that Esquivel-Quintana
abrogated Diego. Because the IJ and the BIA concluded that Diego
survives Esquivel-Quintana, the BIA and the IJ properly applied Diego
as precedent to conclude that the Petitioner’s conviction constitutes an
aggravated felony for sexual abuse of a minor. See 8 U.S.C. §
1101(a)(43); Diego, 857 F.3d at 1015; Esquivel-Quintana, 581 U.S. at
390-91, 396, 401.
PETITION DENIED. Petitioner’s Motion to Stay Removal is
also DENIED as moot.

-- 4 of 4 --