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RIVAS-GOMEZ v. GONZALES

No. 03-72087.

441 F.3d 1072 (2006)

Carlos Rene RIVAS-GOMEZ, Petitioner, v. Alberto R. GONZALES, Attorney General.

United States Court of Appeals, Ninth Circuit.

Filed April 3, 2006.

Attorney(s) appearing for the Case

Philip Smith, Portland, OR, for the petitioner.

Nicole Hope Nelson, Hecht & Smith, LLP, Portland, OR, for the petitioner.

Leslie McKay, U.S. Department of Justice, Washington, D.C., for the respondent.

Keith Bernstein, U.S. Department of Justice, Washington, D.C., for the respondent.

Before EDWARD LEAVY, STEPHEN S. TROTT, Circuit Judges, and LOUIS H. POLLAK, Senior District Judge.

TROTT, Circuit Judge.

This petition for review raises the question of whether a conviction under Oregon Revised Statutes ("ORS") § 163.355 (rape in the third degree), which criminalizes as a felony "sexual intercourse with another person under 16 years of age," constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A). We conclude, as did the Immigration Judge ("IJ"), that it does. However, because the IJ erroneously applied a heightened...

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