Brian Patrick Conry PC
Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.
Song E. Park (argued), Bryan S. Beier, and Patrick J. Glen, Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: M. Margaret McKeown, William A. Fletcher and Raymond C. Fisher, Circuit Judges.
Sandoval was convicted of delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a). Oregon law permits conviction for delivery under this statute based on mere solicitation. Because the Controlled Substances Act does not punish soliciting delivery of controlled substances, § 475.992(1)(a) cannot be a categorical match to an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Further, because § 475.992(1)(a) is indivisible, the modified categorical approach does not apply. Therefore, we grant Sandoval's petition and remand for further proceedings.