                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 14 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ALEKSANDR DMITRIYEVICH                           No. 12-70747
GUSHTYUK,
                                                 Agency No. A071-420-999
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted November 5, 2013**
                                Seattle, Washington

Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges.

       1. The BIA properly held that Gushtyuk’s conviction for assault in the

second degree with sexual motivation, in violation of Washington Revised Code

sections 9A.36.021(1)(a) and 9.9A.835, constituted a conviction for an aggravated


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
felony as defined in 8 U.S.C. § 1101(a)(43). His crime of conviction “has as an

element the use, attempted use, or threatened use of physical force against the

person of another,” United States v. Lawrence, 627 F.3d 1281, 1288 (9th Cir.

2010) (internal quotation marks omitted), and therefore is categorically a “crime of

violence” as defined in 18 U.S.C. § 16(a).

      2. Gushtyuk’s argument, based on the state of Washington’s acceptance of

guilty pleas in cases in which there is a factual basis for the original charge against

the defendant but not for the ultimate charge of conviction, does not support the

contrary conclusion. See State v. Zhao, 137 P.3d 835 (Wash. 2006); In re Barr,

684 P.2d 712 (Wash. 1984). In applying the categorical approach, we examine the

range of conduct encompassed by the elements of the crime of conviction and

determine whether that crime is one to which Congress intended to attach

immigration consequences. See Barragan-Lopez v. Holder, 705 F.3d 1112, 1115

(9th Cir. 2013). This inquiry is not concerned with the facts underlying the

conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). It therefore

does not matter whether those facts would establish the elements of an aggravated

felony.

      3. Pursuant to 8 U.S.C. § 1252(a)(2)(C), because Gushytuk is “an alien who

is removable based on his conviction for an aggravated felony,” we lack


                                           2
jurisdiction to review the final order of removal he challenges. See Barragan-

Lopez, 705 F.3d at 1114.



      DENIED IN PART AND DISMISSED IN PART.




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