NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAZARO VIZCARA-RAMIREZ, 

Petitioner, 

 v. 

ROBERT M. WILKINSON, Acting 

Attorney General, 

Respondent.

No. 19-70019 

Agency No. A205-490-234 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 11, 2020**

Seattle, Washington

Before: McKEOWN, HUNSAKER, and BUMATAY, Circuit Judges.

Lazaro Vizcara-Ramirez, a native of Mexico, petitions for review of the Board 

of Immigration Appeals’ (“BIA”) denial of his application for cancellation of 

removal and voluntary departure. The petition is granted.

* 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).

FILED

FEB 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1. An alien convicted of an aggravated felony, including attempted rape, is 

ineligible for cancellation of removal and voluntary departure. 8 U.S.C. 

§§ 1229b(b)(1)(C), 1229c(b)(1), 1227(a)(2)(A)(iii), 1101(a)(43)(A), (U). To 

determine whether a state conviction is an aggravated felony, we employ the

categorical and modified categorical approaches. Syed v. Barr, 969 F.3d 1012, 1017 

(9th Cir. 2020). The analysis essentially “ask[s] whether the statutory elements of 

the crime of conviction match the elements of the generic offense.” Id. We review 

the question de novo. Jauregi-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir. 

2020).

2. In 2013, Vizcara was convicted of attempted third-degree rape in violation 

of Revised Code of Washington (“RCW”) §§ 9A.28.020, 9A.44.060. At the time of 

his conviction, RCW § 9A.44.060(1) defined third-degree rape as when:

[A] person engages in sexual intercourse with another person, not 

married to the perpetrator: 

(a) Where the victim did not consent . . . to sexual intercourse with the 

perpetrator and such lack of consent was clearly expressed by the 

victim’s words or conduct, or

(b) Where there is threat of substantial unlawful harm to property rights 

of the victim. 

There is no dispute that RCW § 9A.44.060 (2013) is categorically overbroad 

due to the threat-to-property alternative. See Castro-Baez v. Reno, 217 F.3d 1057, 
3 

1059 (9th Cir. 2000) (The generic definition of rape requires “non-consensual sexual 

intercourse with a person.”).

3. Since § 9A.44.060 encompasses conduct beyond federal generic rape, we 

next need to decide if the statute is divisible. See Syed, 969 F.3d at 1017. Divisibility 

turns on whether a statute’s enumerated alternatives are “elements or means.” 

Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). A statute is divisible if it 

“lists elements in the alternative—thereby creating multiple, distinct crimes within 

a single statute.” Syed, 969 F.3d at 1017. If “a jury must unanimously agree on 

which of the . . . statutory alternatives a defendant committed to return a conviction,”

the alternatives are elements; otherwise, they are means. United States v. Robinson, 

869 F.3d 933, 938 (9th Cir. 2017). To answer the question, we consult state law, 

including the face of the statute, possible differences in punishment, and state-court 

precedent. Mathis, 136 S. Ct. at 2256. 

While Washington state courts have not specifically addressed this issue with 

respect to third-degree rape, the Washington Supreme Court has held that the 

similarly structured first- and second-degree-rape statutes present alternative means

to committing their respective crimes. See State v. Whitney, 108 Wash. 2d 506, 510–

11 (1987) (en banc) (regarding RCW § 9A.44.040, first-degree rape); State v. 

Ortega-Martinez, 124 Wash. 2d 702, 707 (1994) (en banc) (regarding RCW 

§ 9A.44.050, second-degree rape). 
4 

To determine whether a statute describes “several multiple offenses or a single 

offense which may be committed in different ways,” Washington courts consider: 

“[1] the title of the act; [2] whether there is a readily perceivable connection between 

the various acts set forth; [3] whether the acts are consistent with and not repugnant 

to each other; [4] and whether the acts may inhere in the same transaction.” Whitney, 

108 Wash. 2d at 510 (alterations in original) (quoting State v. Arndt, 87 Wash. 2d 

374, 379 (1976) (en banc)). Following this analysis, the Washington Supreme Court 

concluded that first-degree rape is a “single offense” with “alternative means” of 

commission by kidnapping or by use or threatened use of a deadly weapon. Id. at 

510–11. Similarly, the court clearly delineated second-degree rape’s two 

alternatives—i.e., by “forcible compulsion” or when the victim is incapable of 

consent by “reason of being mentally incapacitated”—as “means” not requiring juror 

unanimity. Ortega-Martinez, 124 Wash. 2d at 708–09. 

Given these cases, we believe that Washington state courts would also 

determine that third-degree rape’s statutory alternatives are means, not elements. 

Like in first- and second-degree rape, third-degree rape’s lack-of-consent and threatto-property alternatives “could inhere in the same incident” and are not “repugnant” 

to each other. Whitney, 108 Wash. 2d at 510. In other words, a case could arise 

where “substantial evidence” could support both rape by lack of consent and by 

threat to property rights in one single offense and, thus, jury unanimity would not be 
5 

required under Washington law. Id. at 511. Under this understanding of the law, 

§ 9A.44.060’s alternatives cannot be said to be “elements” and the statute is not 

divisible.

Washington’s pattern jury instructions for third-degree rape confirm that 

§ 9A.44.060’s alternatives are means, not elements. Such instructions are often a 

“useful tool in assessing the divisibility of state statutes.” Chavez-Solis v. Lynch, 

803 F.3d 1004, 1013 (9th Cir. 2015). Here, the instructions at the time of Vizcara’s 

conviction specifically provided: 

To return a verdict of guilty, the jury need not be unanimous as to which 

of alternatives [lack of consent] or [threat to property] has been proved 

beyond a reasonable doubt, as long as each juror finds that at least one 

alternative has been proved beyond a reasonable doubt.

 

11 Wash. Prac., Pattern Jury Instr. Crim. 42.02 (3d ed. 2008). As jury unanimity is 

required for any element, see Robinson, 869 F.3d at 938, these instructions 

demonstrate that Washington law views § 9A.44.060’s subsections as forming 

alternative means to committing a single offense. 

We recognize that this court has previously held that § 9A.44.060 is an 

aggravated felony or subject to the modified categorical approach. See United States 

v. Yanez-Saucedo, 295 F.3d 991, 996 (9th Cir. 2002) (holding that § 9A.44.060(1)(a)

fits the generic definition of rape); United States v. Gallegos-Galindo, 704 F.3d 

1269, 1274–75 (9th Cir. 2013) (applying the modified categorical approach to 

§ 9A.44.060). But these cases were decided before Descamps v. United States, 570 
6 

U.S. 254 (2013), and Mathis and “had no occasion . . . to determine whether [the 

statute] is divisible” as required by current law. Robinson, 869 F.3d at 937. In light 

of the above analysis, Yanez-Saucedo and Gallegos-Galindo are “‘clearly 

irreconcilable with the reasoning or theory’ of Descamps and Mathis,” and we do 

not follow them here. Id. (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 

2003) (en banc)).

RCW § 9A.44.060 is, thus, indivisible and the BIA was not permitted to resort 

to the modified categorical approach to determine if Vizcara’s conviction was an 

aggravated felony. Cf. Syed, 969 F.3d at 1017 (“If a statute is not divisible. . . , the 

conviction will not serve as a basis of removal.”).

* * *

For the foregoing reasons, we GRANT Vizcara’s petition and REMAND to 

the BIA.