                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ORLANDO VASQUEZ-VALLE, AKA               No. 13-74213
Louis Antonio Contreras,
                         Petitioner,      Agency No.
                                         A205-671-593
                 v.

JEFFERSON B. SESSIONS III, Attorney       OPINION
General,
                       Respondent.



       On Petition for Review of an Order of the
           Board of Immigration Appeals

        Argued and Submitted February 7, 2018
                 Seattle, Washington

                 Filed August 10, 2018

    Before: Raymond C. Fisher, Ronald M. Gould,
         and Richard A. Paez, Circuit Judges.

               Opinion by Judge Gould
2                VASQUEZ-VALLE V. SESSIONS

                          SUMMARY *


                           Immigration

    The panel granted Orlando Vasquez-Valle’s petition for
review of the Board of Immigration Appeals’ decision that
he was ineligible for cancellation of removal, holding that:
(1) Vasquez-Valle’s conviction for witness tampering under
Oregon Revised Statutes § 162.285 is not categorically a
crime involving moral turpitude; and (2) while the statute is
divisible, the subsection under which Vasquez-Valle was
convicted is not a categorical match for a crime involving
moral turpitude.

   The panel concluded that the BIA’s determination that
Oregon Revised Statutes § 162.285 is a crime involving
moral turpitude did not warrant deference under Skidmore v.
Swift & Co., 323 U.S. 134 (1944), because the BIA’s
analysis directly conflicted with this court’s case law and
was inconsistent both internally and with prior BIA
decisions. The panel thus reviewed the BIA’s decision de
novo.

    The panel observed that there are two categories of
crimes involving moral turpitude: those involving fraud and
those involving grave acts of baseness or depravity.
Applying that generic definition to the plain text of the
statute, the panel held that Oregon Revised Statutes
§ 162.285 is not categorically a crime involving moral
turpitude because the statute captures conduct that is neither
fraudulent nor base, vile, or depraved. The panel further

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               VASQUEZ-VALLE V. SESSIONS                   3

noted that Oregon case law reveals numerous instances
where defendants were convicted under the statute for
conduct that does not satisfy the generic definition.

    The panel also held that the statute is divisible because
its subsections criminalize different conduct and require
different elements for conviction. Applying the modified
categorical approach, the panel concluded that Vasquez-
Valle was convicted under subsection (b) (knowingly
inducing or attempting to induce a witness to be absent from
any official proceeding to which the person has been legally
summoned). However, the panel concluded that, for the
same reasons it had discussed, subsection (b) is not a
categorical match for a crime involving moral turpitude.


                        COUNSEL

Kristin Kyrka (argued), Seattle, Washington; Vicky Dobrin
and Hilary Han, Dobrin & Han PC, Seattle, Washington; for
Petitioner.

Jennifer A. Singer (argued), Trial Attorney; Russell J.E.
Verby, Senior Litigation Counsel; Joyce R. Branda, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4              VASQUEZ-VALLE V. SESSIONS

                         OPINION

GOULD, Circuit Judge:

    Orlando Vasquez-Valle (“Vasquez-Valle”) is a native
and citizen of Mexico. He was convicted of witness
tampering in violation of Oregon Revised Statutes § 162.285
and was referred for immigration proceedings. Vasquez-
Valle conceded removability but argued that he was eligible
for cancellation of removal. The Immigration Judge (“IJ”)
held, and the Board of Immigration Appeals (“BIA”)
affirmed, that Vasquez-Valle was ineligible for cancellation
of removal because his conviction for witness tampering was
a crime involving moral turpitude (“CIMT”). We conclude
that Oregon Revised Statutes § 162.285 is not categorically
a crime involving moral turpitude because the statute
captures conduct that is neither fraudulent nor base, vile, or
depraved. And while we conclude that the statute is
divisible, the subsection that formed the basis for Vasquez-
Valle’s conviction—§ 162.285(1)(b)—is likewise not a
categorical match for a crime involving moral turpitude. We
therefore grant Vasquez-Valle’s petition and remand to the
agency for further proceedings consistent with this opinion.

                              I.

   Vasquez-Valle has lived in the United States for twenty
years. He is married to a U.S. citizen, and they have two
U.S. citizen children.

    Vasquez-Valle pled guilty to tampering with a witness in
violation of Oregon Revised Statutes § 162.285 and was
                 VASQUEZ-VALLE V. SESSIONS                          5

sentenced to two years of supervised probation. 1 Three days
after entering his guilty plea, Vasquez-Valle was transferred
to the custody of the Department of Homeland Security,
which issued a Notice to Appear alleging that he was
removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) because
he was present in the United States without admission or
parole and because he was convicted of a CIMT in violation
of 8 U.S.C. § 1182(a)(2)(A)(i)(I). Vasquez-Valle, through
counsel, conceded removability based on his presence
without admission or parole but denied that he committed a
CIMT. Vasquez-Valle therefore argued that he was eligible
for cancellation of removal under 8 U.S.C. § 1229b(b).

    The IJ sustained the government’s charge that Vasquez-
Valle was removable, and concluded he was not eligible for
cancellation of removal because his prior conviction was for
a CIMT. The IJ found that the witness tampering statute
“closely aligns with other cases the BIA has found to qualify
as a crime involving moral turpitude and therefore
categorically qualifies as a crime involving moral turpitude.”
The IJ concluded that witness tampering was more
analogous to obstruction of justice than to misprision of
felony—the latter of which we held to not be a CIMT in
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012)—
because there was a specific intent to interfere with the
process of justice. The IJ found that to commit a CIMT, one
need only intentionally obstruct a government function.
Vasquez-Valle was removed to Mexico but reserved his
right to appeal the IJ’s decision.



    1
        Vasquez-Valle was also convicted of coercion-constituting
domestic violence, but because that conviction does not form the basis
for his removal proceedings, it is not pertinent to this appeal.
6              VASQUEZ-VALLE V. SESSIONS

    On appeal, the BIA concluded that Vasquez-Valle’s
witness tampering conviction was a CIMT, analogizing it to
federal obstruction of justice offenses. The BIA largely
adopted the IJ’s reasoning, noting that the Board had
previously found that “offenses that impair and obstruct the
lawful function of government by defeating its efficiency or
destroying the value of its operations by graft, trickery, or
dishonest means involve moral turpitude.” The BIA agreed
with the IJ’s conclusion that the Oregon offense “evinces a
corrupt intent to influence official action by tampering with
a witness.” The BIA further concluded that the statute was
not divisible and that the statute was not overbroad, adopting
the IJ’s determination that “though the Oregon statute is
bifurcated, and the type of tampering involved differs, the
two separate provisions prohibit the intentional interference
with important government functions.” Without any citation
to Oregon case law, the BIA interpreted the word
“knowingly” in Oregon Revised Statutes § 162.285 to mean
that a conviction under the statute required a showing that
the defendant was “conscious of wrongdoing” and
“wrongfully persuaded” another to offer false testimony,
withhold testimony, or be absent from a proceeding. Citing
State v. Bailey, 213 P.3d 1240, 1243 n.2 (Or. 2009), the BIA
noted that the Oregon statute does not criminalize attempts
to induce a person to exercise their lawful right or privilege
not to testify, or to induce a person to avoid service of
process by leaving the jurisdiction. The BIA agreed with the
IJ that the statute was a CIMT because it requires an
“implicit evil intent . . . to intentionally and wrongfully
disrupt a necessary lawful function of government.”

                             II.

   We apply a two-step process when determining whether
a conviction under a criminal statute is categorically a
               VASQUEZ-VALLE V. SESSIONS                     7

CIMT. Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208
(9th Cir. 2013). First, we identify the elements of the statute
of conviction. Id. We review the first step de novo because
the BIA “‘has no special expertise by virtue of its statutory
responsibilities in construing state or federal criminal
statutes.’” Id. (quoting Uppal v. Holder, 605 F.3d 712, 714
(9th Cir. 2010)).

    Second, we “compare the elements of the statute of
conviction to the generic definition of a crime of moral
turpitude and decide whether the conviction meets that
definition.” Id. Because the BIA has expertise in making
this determination, we defer to its conclusion if warranted
under either Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) or Skidmore v.
Swift & Co., 323 U.S. 134 (1944). Id. Chevron deference
applies “if the decision is a published decision (or an
unpublished decision directly controlled by a published
decision interpreting the same statute),” while Skidmore
deference governs “if the decision is unpublished (and not
directly controlled by any published decision interpreting the
same statute).” Id. (quoting Uppal, 605 F.3d at 714). If
neither applies, we review de novo. Escobar v. Lynch,
846 F.3d 1019, 1025 (9th Cir. 2017). Because the BIA
decision here was unpublished and was not controlled by any
published BIA decision, we apply Skidmore rather than
Chevron.

    “Under Skidmore, the measure of deference afforded to
the agency ‘depends upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to
control.’” Uppal, 605 F.3d at 715 (quoting Skidmore,
323 U.S. at 140). Applying this standard, we conclude that
8              VASQUEZ-VALLE V. SESSIONS

the BIA’s analysis does not warrant deference. Although the
BIA’s analysis was fairly extensive, it directly conflicted
with prior Ninth Circuit case law and was inconsistent both
internally and with prior BIA decisions.              See id.
Specifically, the BIA’s decision here relied on the same
definition of a CIMT—“contrary to justice, honesty,
principle, or good morals”—that we have previously
explicitly rejected. See Escobar, 846 F.3d at 1025. The BIA
also unpersuasively analogized the Oregon offense to
dissimilar federal obstruction of justice offenses, and relied
on federal common law—rather than Oregon law—
interpretations of the term “knowing” to arrive at its
conclusion. We therefore review de novo.

                             III.

    Vasquez-Valle contends that Oregon Revised Statutes
§ 162.285 is not a categorical match to a CIMT because the
minimum conduct necessary for a conviction is not
fraudulent or base, vile, or depraved. Vasquez-Valle also
argues that the IJ erred by concluding that Oregon Revised
Statutes § 162.285 was not divisible. We agree on both
points.

                             A.

    We determine whether a conviction qualifies as a CIMT
by applying the categorical approach and, if necessary, the
modified categorical approach.        Galeana-Mendoza v.
Gonzalez, 465 F.3d 1054, 1057–58 (9th Cir. 2006). “Under
the categorical approach, we look only to the fact of
conviction and the statutory definition of the prior offense,
and determine whether the full range of conduct proscribed
by the statute constitutes a crime of moral turpitude.” Id.
(internal quotation marks and citation omitted). If it does
not, we apply the modified categorical approach, which
               VASQUEZ-VALLE V. SESSIONS                     9

permits us to look beyond the language of the statute to
documents that are part of the record of conviction, but not
to the particular facts underlying the conviction. Id. at 1058.

    There are two categories of CIMTs: “those involving
fraud and those involving grave acts of baseness or
depravity.” Rivera v. Lynch, 816 F.3d 1064, 1074 (9th Cir.
2016) (internal quotation marks and citations omitted);
Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012)
(“Although the immigration statutes do not specifically
define offenses constituting crimes involving moral
turpitude, a crime involving moral turpitude is generally a
crime that ‘(1) is vile, base, or depraved and (2) violates
accepted moral standards.’” (quoting Saavedra-Figueroa v.
Holder, 625 F.3d 621, 626 (9th Cir. 2010))). To show that
the stated offense is broader than the generic definition of a
CIMT and thus not a categorical match, the petitioner must
demonstrate that there is “a realistic probability, not a
theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of moral
turpitude.” Turijan v. Holder, 744 F.3d 617, 620 (9th Cir.
2014) (quoting Nunez v. Holder, 594 F.3d 1124, 1129 (9th
Cir. 2010)). “If the statute has been applied in at least one
previous case to conduct that does not satisfy the generic
definition, then the offense is not a categorical CIMT.” Id.
at 620–21.

    The BIA concluded that an intent to interfere with a
government function is sufficient to constitute a CIMT. The
BIA further concluded that Oregon witness tampering was
“contrary to justice, honesty, principle, or good morals.” But
under our precedent, neither of those definitions is the
correct standard for determining whether an offense is a
CIMT. Contrary to the BIA’s determination, we conclude
that Oregon Revised Statutes § 162.285 is overbroad
10             VASQUEZ-VALLE V. SESSIONS

because the minimum conduct it criminalizes is not
necessarily fraudulent, base, vile, or depraved. A person
commits the crime of witness tampering under that statute if:

       (a) The person knowingly induces or
       attempts to induce a witness or a person the
       person believes may be called as a witness in
       any official proceeding to offer false
       testimony or unlawfully withhold any
       testimony; or

       (b) The person knowingly induces or
       attempts to induce a witness to be absent from
       any official proceeding to which the person
       has been legally summoned.

Or. Rev. Stat. § 162.285(1). The plain text of the statute
permits conviction if (1) a person induces or attempts to
induce a person who is or may be called as a witness in
official proceeding to offer false testimony; (2) a person
induces or attempts to induce a person who is or may be
called as a witness to unlawfully withhold any testimony; or
(3) a person knowingly induces or attempts to induce a
person to be absent from an official proceeding when the
person was legally summoned. Or. Rev. Stat. § 162.285(1).

    This statute does not necessarily involve the fraudulent,
base, vile, or depraved conduct required for it to qualify as a
categorical CIMT. While Vasquez-Valle need only point to
a single case where a defendant was convicted under
§ 162.285 for conduct that does not satisfy the generic
definition of a CIMT in order to prevail, our review of
Oregon case law reveals numerous such instances. In State
v. McBeth, 149 P.3d 212 (Or. Ct. App. 2006), for example,
               VASQUEZ-VALLE V. SESSIONS                  11

the Oregon Court of Appeals upheld a defendant’s
conviction under § 162.285 where the witness testified that:

       Defendant asked [her] what she knew about
       Ward’s arrest, and she told him about her
       involvement in the controlled buy. She told
       defendant that she was afraid to testify in
       Ward’s trial. Defendant replied that it was
       ‘easy to forget things and not to recollect and
       not to show up to court.’ [She] told defendant
       that she feared going to jail for contempt if
       she did not appear, they talked a little while
       longer, and then defendant left.

Id. at 214. The defendant was charged under both subsection
(a)—for attempting to induce a witness to unlawfully
withhold testimony—and subsection (b), for attempting to
induce a witness to be absent from a proceeding to which she
was legally summoned. Id. at 213–14. The facts in McBeth
do not suggest fraud, which we have defined as requiring
that an individual employ false statements to obtain
something tangible. Blanco v. Mukasey, 518 F.3d 714, 719
(9th Cir. 2008). Specifically—and dispositive of our
analysis on this point—neither impeding law enforcement
nor wrongfully interfering with the administration of justice
constitutes a tangible “benefit” for purposes of determining
whether a crime involves fraudulent intent. Id. at 719–20.
Nor was the defendant’s conduct base, vile, or depraved; his
actions did not “shock[] the public conscience,” nor did they
involve an intent to injure another, an actual injury to
another, or a protected class of victim. See Nunez, 594 F.3d
at 1131 (“[N]on-fraudulent crimes of moral turpitude almost
always involve an intent to harm someone, the actual
infliction of harm upon someone, or an action that affects a
protected class of victim.”).
12               VASQUEZ-VALLE V. SESSIONS

    Oregon courts have upheld convictions under § 162.285
in a number of other cases where indicia of fraud or
depravity are similarly absent. In State v. Campbell, for
example, the court upheld a conviction for witness
tampering under § 162.285(1)(b) where the defendant called
the victim and told her that he did not want her to testify
against him. 337 P.3d 186, 188–89 (Or. Ct. App. 2014).
Again, requesting that a person not appear is neither
inherently fraudulent nor vile, base, or depraved. See Nunez,
594 F.3d at 1131; Blanco, 518 F.3d at 719. In another case,
a defendant attempted to get his girlfriend’s daughter, the
alleged victim of a sexual abuse crime, to withhold
testimony or to offer false testimony before a grand jury.
State v. Bryan, 190 P.3d 470, 471 (Or. Ct. App. 2008). The
defendant instructed his girlfriend that the victim was not
permitted to play with his video games while he was in
custody and told his girlfriend not to give the victim the
Christmas gifts that defendant had bought for her. Id. In
another call, “defendant told his girlfriend that the victim
would end up in a foster home if she persisted in her
allegations of abuse.” Id. The Oregon Court of Appeals held
that these calls were attempts to induce the child to either
withhold testimony or give false testimony in violation of
§ 162.285. Id. at 473–74. Although the defendant there
exerted pressure to attempt to get the child not to testify, the
requests were not necessarily fraudulent, base, or depraved.

    Additionally, while “induce” is not defined in the statute,
Oregon case law demonstrates inducement need not involve
fraud or depravity. In State v. Jones, 226 P. 433 (Or. 1924),
an attorney who paid a mother to keep her children from
proceedings was found guilty of witness tampering. 2 In that

     2
      Although State v. Jones analyzed an old contempt statute, some of
the conduct criminalized as contempt under Oregon law was similar to
                  VASQUEZ-VALLE V. SESSIONS                         13

case, the defendant—a defense attorney—had paid the
mother $435 to take her daughters, who were to be witnesses
against his client, out of Oregon’s jurisdiction so that they
would not testify. Id. at 434–35. As above, while we do not
condone the attorney’s actions, such facts suggest neither
fraud nor base, vile, or depraved behavior. See Nunez,
594 F.3d at 1131; Blanco, 518 F.3d at 719–20.

    These cases demonstrate that § 162.285 is broader than
the generic definition of a CIMT and that Oregon applies the
statute to conduct that falls outside the generic definition.
We therefore conclude that the statute is overbroad and not
a categorical match to a CIMT. 3 We next determine whether
the statute is divisible; if it is, we consider whether the
particular provision of the statute that Vasquez-Valle was
convicted under is a match under the modified categorical
approach. See Rendon v. Holder, 764 F.3d 1077, 1084 (9th
Cir. 2014).


the conduct now criminalized as witness tampering under § 162.285. See
226 P. at 435 (discussing various acts criminalized as contempt,
including “unlawful interference with the process or proceedings of a
court,” and, under Oregon common law, “to prevent the attendance of
witnesses who have been duly subpœnaed, to advise a witness to absent
himself from court, or to induce, or attempt to induce, him to go beyond
the jurisdiction of the court”).

     3
       We reached a similar conclusion in Escobar v. Lynch, 846 F.3d
1019, 1024–25 (9th Cir. 2017), where we considered whether a
statutorily similar crime—California’s witness tampering statute—was a
CIMT. The California statute requires a knowing and malicious attempt
to dissuade someone from testifying. Id. at 1024. We held that
“California Penal Code section 136.1(a) is overly broad and not a
categorical CIMT because the statute criminalizes conduct that is not
intentionally fraudulent and that does not require an intent to injure
someone, an actual injury, or a protected class of victims.” Id. at 1026
(internal quotation marks and citation omitted).
14               VASQUEZ-VALLE V. SESSIONS

                                B.

    Vasquez-Valle argues that Oregon Revised Statutes
§ 162.285 is clearly divisible because the statute is separated
into two distinct prongs and sets forth three different
methods for witness tampering. We explained in Rendon
that “a statute is divisible only if, inter alia, ‘it lists multiple
discrete offenses as enumerated alternatives or defines a
single offense by reference to disjunctive sets of “elements,”
more than one combination of which could support a
conviction.’” 764 F.3d at 1087–88 (quoting Matter of
Chiarez, 26 I. & N. Dec. 349, 353 (BIA 2014)).

    Oregon Revised Statutes § 162.285(1) states that a
person commits the crime of witness tampering if:

        (a) The person knowingly induces or
        attempts to induce a witness or a person the
        person believes may be called as a witness in
        any official proceeding to offer false
        testimony or unlawfully withhold any
        testimony; or

        (b) The person knowingly induces or
        attempts to induce a witness to be absent from
        any official proceeding to which the person
        has been legally summoned.

    We conclude that the statute is divisible. Although both
subsections (a) and (b) define the offense of witness
tampering in Oregon, the subsections criminalize different
conduct and require different elements for conviction.
Subsection (a) permits conviction if a person induces or
attempts to induce a person who is or may be called as a
witness in an official proceeding to (1) offer false testimony,
or (2) unlawfully withhold testimony. Or. Rev. Stat.
               VASQUEZ-VALLE V. SESSIONS                    15

§ 162.285(1)(a). Subsection (b), on the other hand, allows
conviction if a person knowingly induces or attempts to
induce a person to be absent from an official proceeding to
which the person was legally summoned. Or. Rev. Stat.
§ 162.285(1)(b). The statute thus provides “disjunctive sets
of elements, more than one combination of which could
support a conviction.” Rendon, 764 F.3d at 1088.

    A review of Oregon cases addressing § 162.285 does not
show subsections (a) and (b) being charged interchangeably.
For example, in State v. McBeth, a defendant was charged
under both Oregon Revised Statutes § 162.285(1)(a) and
§ 162.285(1)(b). 149 P.3d 212, 213 (Or. Ct. App. 2006)
(“Defendant was charged under ORS [§] 162.285(1)(a) and
(b) with one count of attempting to induce a witness to
unlawfully withhold testimony and one count of attempting
to induce a witness to be absent from an official proceeding
to which she was legally summoned.”). If the subsections
were treated as one indivisible crime, there would be no need
to specify which acts violated subsection (a) and which acts
violated subsection (b). In another case, the Oregon Court
of Appeals held that “witness” under subsection (a) had a
more expansive meaning than under subsection (b), because
subsection (a) does not require the “witness” to have been
legally summoned. See Bryan, 190 P.3d at 472–73
(explaining that a “witness” under subsection (a) does not
need to have been summoned; otherwise, the “to which the
person has been legally summoned” language in subsection
(b) would be unnecessary).

    Our conclusion that the statute is divisible is not altered
by State v. Jenkins, 383 P.3d 395 (Or. Ct. App. 2016), cert.
denied, 388 P.3d 725 (Or. 2017), where—in addressing the
merger of guilty verdicts—the Oregon Court of Appeals
stated:
16             VASQUEZ-VALLE V. SESSIONS

       ORS [§] 162.285(1) provides that “[a] person
       commits the crime of tampering with a
       witness if” the person engages in conduct
       described in either of two following
       paragraphs, (a) or (b). That structure—a
       section that names the crime, followed by
       paragraphs that define alternative ways of
       committing the crime—indicates that the
       legislature intended to define one crime.

Id. at 398. But our analysis for whether a statute is divisible
for purposes of the categorical approach is not the same as
the Oregon courts’ analysis for whether guilty verdicts
should be merged under Oregon’s anti-merger statute. See
id. at 396–99. We determine whether disjunctively worded
statutes are divisible “by looking to whether the state treats
the parts of the statute on opposite sides of the ‘or’ as
alternative elements or alternative means.”           Rendon,
764 F.3d at 1088. A jury in Oregon cannot convict a
defendant under Oregon Revised Statutes § 162.285(1)(b)
without finding that the witness had been summoned—but a
defendant may be convicted under subsection (a) without
that element. See, e.g., State v. Tweed, 134 P.3d 1047, 1049
(Or. Ct. App. 2006) (“More recently, we concluded that,
where the state failed to show that the defendant’s attempt to
induce a witness not to testify occurred after the witness had
been summoned, ‘the state did not prove an element of the
offense [under § 162.285(1)(b)]’”) (alteration and internal
citation omitted); State v. Pervish, 123 P.3d 285, 299 (Or.
Ct. App. 2005) (reversing conviction under § 162.285(1)(b)
because the witness with whom the defendant had tampered
had not yet been summoned at the time of the tampering),
cert. denied, 132 P.3d 28 (Or. 2006); State v. Martin,
769 P.2d 203, 206 (Or. Ct. App. 1989) (tampering under
§ 162.285(1)(b) requires proof that the inducement occurred
               VASQUEZ-VALLE V. SESSIONS                   17

after the witness had been served with a subpoena). Further,
the Oregon State Bar Committee on Uniform Criminal Jury
Instructions supplies a jury instruction that requires counsel
to pick either subsection (a) or subsection (b) for use in a
trial on a witness tampering charge. See Oregon UCrJI 1220.
We therefore conclude that Oregon Revised Statutes
§ 162.285 is divisible.

                             C.

    Because we conclude that Oregon Revised Statutes
§ 162.285 is divisible, we must determine which subsection
applied to Vasquez-Valle’s conviction. Id. Under the
modified categorical approach, “we look beyond the
statutory text to a limited set of documents to determine
which statutory phrase was the basis for the conviction.”
United States v. Martinez-Lopez, 864 F.3d 1034, 1043 (9th
Cir.) (en banc) (internal quotation marks and citation
omitted), cert. denied, 138 S. Ct. 523 (2017). This narrow
set of documents includes: “the charging document, the
terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea
was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard v. United
States, 544 U.S. 13, 26 (2005).

   Vasquez-Valle’s indictment alleged that he “unlawfully
and knowingly induce[d] or attempt[ed] to induce LISA
OWENS, a witness, to absent herself from an official
proceeding to which said witness had been legally
summoned.” Vasquez-Valle pled guilty to tampering with a
witness in violation of Oregon Revised Statutes § 162.285.
The plea agreement did not designate which subsection of
the statute he violated, but stated that Vasquez-Valle
“knowingly induced or attempted to induce Lisa Owens, a
witness, to be absent from an official proceeding to which
18            VASQUEZ-VALLE V. SESSIONS

she was legally summoned.” Oregon Revised Statutes
§ 162.285(1)(b) states that a person commits the crime of
witness tampering if “[t]he person knowingly induces or
attempts to induce a witness to be absent from any official
proceeding to which the person has been legally
summoned.” It is thus clear from the face of the indictment
and the plea agreement that Vasquez-Valle’s conviction
tracked subsection (b) and not subsection (a).

    For the same reasons discussed above, subsection (b)
criminalizes conduct that falls outside of the generic
definition of a CIMT, and therefore is not a categorical
match under the modified categorical approach.

                           IV.

    The BIA erred by concluding that Vasquez-Valle’s
conviction under Oregon Revised Statutes § 162.285 was a
crime involving moral turpitude. Vasquez-Valle’s petition
is granted, and we remand to the agency for further
proceedings consistent with this opinion.

     PETITION GRANTED; REMANDED.
