Unpub. BIA Agg. Fel. Victory: Wash. Rev. Code §§ 9A.28.020(1), 9A.44.089(1)

"The Department of Homeland Security ("DHS') has charged the respondent with removability from the United States as an alien convicted of an "aggravated felony" and a "crime of child abuse." See sections 237(a)(2)(A)(iii) aod 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii), (E)(i), respectively. In decisions dated July 20, 2012, aod September 18, 2012, an Immigration Judge sustained the aggravated felony charge, dismissed the crime of child abuse charge, and ordered the respondent removed to Mexico. The respondent has appealed from the Immigration Judge's decision sustaining the aggravated felony charge, while the DHS has cross-appealed from the dismissal of the crime of child abuse charge. The respondent's appeal will be sustained, the DHS's appeal will be dismissed, and the removal proceedings will be terminated.

The offense of third~degree child molestation in violation of Wash. Rev. Code § 9A.44.089(1) is not an aggravated felony under section 101(a)(43)(A) in removal proceedings arising within the jurisdiction of the Ninth Circuit because its elements do not correspond to either of the Ninth Circuit's controlling definitions of the phrase "sexual abuse of a minor." Thus, an attempt to commit that offense is also not an aggravated felony under section 101(a)(43)(U) of the Act. Under the circumstances, we will vacate the Immigration Judge's decision in part and dismiss the aggravated felony charge.

We agree with the Immigration Judge that the respondent's attempt conviction does not qualify as a categorical "crime of child abuse," despite the fact that the completed offense would have so qualified, because the full range of conduct punishable as an attempted child molestation offense under Washington law would not constitute maltreatment of a child or otherwise expose a child to an unreasonable risk of harm. As the respondent points out on appeal, a person may be successfully prosecuted in Washington for an attempted sex offense against a minor even if the "minor" in question was in fact an adult or a fictitious creation of an undercover police officer.

Ninth Circuit law precludes the respondent from being removable as an alien convicted of an aggravated. felony within that circuit. Furthermore, the respondent's attempt offense of conviction does not qualify as a crime of child abuse. Accordingly, the charges of removability under sections 237(a)(2)(A)(iii) and 237(a)(2)(E)(i) of the Act will be dismissed. No other charges are pending against the respondent, moreover. and therefore the removal proceedings will be terminated." - Matter of X-, Aug. 21, 2014.  [Kudos to Robert Jaeggli.]