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Rodriguez-Castellon v. Holder

United States Court of Appeals, Ninth Circuit

October 22, 2013

Hector Martin RODRIGUEZ-CASTELLON, aka Hector Martin Rodriguez, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

Argued and Submitted May 10, 2013.

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K. Lee Hartzler, San Diego, CA, for Petitioner.

Kohsei Ugumori (argued); Tony West, Assistant Attorney General; Emily Anne Radford, Assistant Director; Jennifer J. Keeney, Senior Litigation Counsel, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A035-215-035.

Before: DIARMUID F. O'SCANNLAIN, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Hector Martin Rodriguez-Castellon, a native and citizen of Mexico and lawful permanent resident, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the finding that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii). We hold that because Rodriguez's state crime of conviction, California Penal Code section 288(c)(1), is a categorical crime of violence under 18 U.S.C. § 16(b), Rodriguez is an alien convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(F). Therefore, we deny the petition.

I

In April 2005, Rodriguez (at that time, a 42-year-old man) was charged with seventeen counts of lewd and lascivious acts upon children during the period between 1992 and 1997, in violation of various provisions of the California Penal Code. As amended, Count 17 of the felony information alleged that Rodriguez had sexual intercourse with a 15-year-old girl in violation of section 288(c)(1).[1] Rodriguez

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pleaded nolo contendere to Count 17 on June 7, 2005 and received a six-year sentence.

In June 2009, the government served Rodriguez with a Notice to Appear, which alleged that based on his conviction under section 288(c)(1), he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), for being convicted of an " aggravated felony," as defined in both 8 U.S.C. § 1101(a)(43)(A) (sexual abuse of a minor) and 8 U.S.C. § 1101(a)(43)(F) (crime of violence). In addition, the government alleged that due to his section 288(c)(1) conviction, Rodriguez was removable under 8 U.S.C. § 1227(a)(2)(E)(i) for a crime of child abuse.

At a hearing before an immigration judge (IJ) on November 19, 2009, the IJ adopted the government's factual allegations and sustained all charges of removal. The IJ first determined that a violation of section 288(c)(1) constituted a crime of " sexual abuse of a minor" as defined in United States v. Medina-Villa, 567 F.3d 507, 511-12 (9th Cir.2009). Further, the IJ determined that a violation of section 288(c)(1) was also a " crime of violence" as defined in 8 U.S.C. § 1101(a)(43)(F), because the nature of the offense, " where the perpetrator, motivated by a desire for sexual arousal and in a superior physical position, engages in physical contact with the child victim at least ten years his junior" is such that it inherently involves " a substantial risk that physical force against the person ... of another may be used in the course of committing the offense." Finally, relying on the statutory definition of " child abuse" as meaning " the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child," 18 U.S.C. § 3509(a)(3), and the definition of " sexual abuse" as including the " employment, use, persuasion, inducement, enticement, or coercion of a child to engage in ... sexually explicit conduct," 18 U.S.C. § 3509(a)(8), the IJ determined that a violation of section 288(c)(1) constituted a crime of child abuse.

Rodriguez appealed to the BIA primarily on the ground that the government had failed to properly certify the documents comprising his record of conviction. On October 20, 2010, the BIA dismissed the appeal. The BIA rejected Rodriguez's certification argument in a footnote, and focused instead on an unbriefed issue: whether a violation of section 288(c)(1) constituted a crime of " sexual abuse of a minor." Relying on the newly decided United States v. Castro, 607 F.3d 566 (9th Cir.2010), in which we held that section 288(c)(1) was not categorically sexual abuse of a minor, the BIA concluded that the IJ erred in sustaining removability on that ground. Nevertheless, the BIA upheld the IJ's ruling on one of the alternative grounds, that section 288(c)(1) was a categorical crime of violence under 18 U.S.C. § 16(b). The BIA reasoned that " [w]henever an adult engages in a lewd and lascivious act with a child at least 10

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years younger, there is a substantial risk that the child will take exception and, as a result, cause the adult to use force to further effectuate the conduct or to act in self-defense." The BIA did not consider the third basis for the IJ's determination, that Rodriguez committed a crime of child abuse. Rodriguez timely filed this petition for review, appealing only the ...


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