Anjum Khan v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
APR 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANJUM NAWAZ KHAN, No. 18-71530
Petitioner, Agency No. A075-827-533
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 3, 2020**
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Anjum Nawz Khan petitions for review of the decision of the Board of
Immigration Appeals (“BIA”), holding that Khan was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for committing an aggravated felony under 8 U.S.C.
§ 1101(a)(43). We have jurisdiction to determine whether an offense is an
*
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).
aggravated felony under the Immigration and Nationality Act. See Lopez-Jacuinde
v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010). We grant the petition for review.
The Department of Homeland Security issued a Notice to Appear, charging
Khan with removability as an aggravated felon based on Khan’s conviction of rape
in the second degree, Revised Code of Washington section 9A.44.050(1). The BIA
concluded that all subsections of RCW § 9A.44.050(1) were a categorical match to
the generic crime of rape. We disagree. Subsections (c), (d), and (e) of RCW
§ 9A.44.050(1) are overbroad, because they can be committed with consent and do
not require that a person be “overcome by force or fear, or under other prohibitive
conditions.” Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000) (defining
common law rape) (quoting Black’s Law Dictionary (6th ed.1990)); see also State
v. Soderquist, 816 P.2d 1264, 1267 (Wash. Ct. App. 1991) (noting that subsection
(c) “involve[s] a vulnerable victim and an abuse of trust”).
Because RCW § 9A.44.050(1) is overbroad, we must next determine
whether the statute is divisible. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867-
68 (9th Cir. 2015). “[I]ndivisible statutes may contain multiple, alternative means
of committing the crime, [whereas] only divisible statutes contain multiple,
alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d
1077, 1084-85 (9th Cir. 2014). Whether the subsections of RCW § 9A.44.050(1)
2
are elements or means turns “on whether a jury must unanimously agree on which
of the [six] statutory alternatives a defendant committed to return a conviction.”
United States v. Robinson, 869 F.3d 933, 938 (9th Cir. 2017). “[A] statute is
indivisible if the jury may disagree on the fact at issue yet still convict.”
Lopez-Valencia, 798 F.3d at 869 (quotation marks and citation omitted). Here, the
Washington Supreme Court has explained that the subsections of RCW
§ 9A.44.050(1) are “alternative means,” and that “jury unanimity as to the means
by which [the defendant] committed the rape is not required.” State v.
Ortega-Martinez, 881 P.2d 231, 233 (Wash. 1994).
In Robinson, we analyzed another Washington statute, RCW § 9A.36.021.
Relying on the Washington Supreme Court’s conclusion that the subsections were
“alternative means,” we held that the statute was indivisible, because jury
unanimity was not required. 869 F.3d at 939-41. The issue presented in the
present case is indistinguishable from Robinson. RCW § 9A.44.050(1) allows
prosecutors to allege more than one “alternative means” of committing rape in the
second degree, and a jury need not agree on the means of committing the rape. See
Ortega-Martinez, 881 P.2d at 234-35. Accordingly, Khan’s conviction under
3
RCW § 9A.44.050(1) does not categorically satisfy the definition of an aggravated
felony.1
PETITION FOR REVIEW GRANTED and REMANDED.
1
Because we grant the petition, we need not reach Khan’s additional
arguments raised on appeal.
4