Rodriguez-Castellon v. Holder

• Decision Date: 22 October 2013
• Docket Number: No. 10–73239.,10–73239.
• Citation: 733 F.3d 847
• Parties: Hector Martin RODRIGUEZ–CASTELLON, aka Hector Martin Rodriguez, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

733 F.3d 847

Hector Martin RODRIGUEZ–CASTELLON, aka Hector Martin Rodriguez, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–73239.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 10, 2013.

Filed Oct. 22, 2013.

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 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 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 BIA's ruling that section 288(c)(1) was a categorical crime of violence under 18 U.S.C. § 16(b).

II

We have jurisdiction over this appeal under 8 U.S.C. § 1252(d). Although we lack “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction over “constitutional claims or questions of law,” 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony. While we generally do not have jurisdiction to review unexhausted claims, we may review any issue addressed on the merits by the BIA, regardless whether it was raised to the BIA by the petitioner. Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir.2005). Accordingly, we have jurisdiction to review the BIA's determination that Rodriguez's prior state conviction was a crime of violence, even though Rodriguez did not raise this question to the BIA.

We review questions of law de novo. We generally defer to “the BIA's interpretation of the statutes and regulations it is charged with administering,” Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir.2009), but do not defer to the BIA's interpretation of state or federal criminal statutes, because the BIA does not administer such statutes or have any special expertise regarding their meaning. See Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1126 n. 7 (9th Cir.2006) (en banc); see also Fregozo, 576 F.3d at 1034. Here, § 1101(a)(43)(F) provides that the term “crime of violence” has the definition set forth in 18 U.S.C. § 16,² which is a federal criminal statute. Accordingly, we do not defer to the BIA's interpretation of § 16.

III

On appeal, Rodriguez argues that his conviction under section 288(c)(1) is not a conviction for a “crime of violence,” under 18 U.S.C. § 16, and therefore is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We begin by considering the relevant legal background.

A

An alien “who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The government has the burden of proving that a particular offense qualifies as an aggravated felony. See Salazar–Luviano v. Mukasey, 551 F.3d 857, 861 (9th Cir.2008). The Immigration and Nationality Act (INA) defines “aggravated felony” to mean (among other things) “a crime of violence,” as defined in 18 U.S.C. § 16, “for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).

In order to determine whether a conviction under section 288(c)(1) qualifies as a crime of violence as defined in 18 U.S.C. § 16, we apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Nijhawan v. Holder, 557 U.S. 29, 33–38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (applying the categorical approach in the context of immigration offenses). Under Taylor, we first “compare the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.” Quintero–Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007). In identifying the elements of the statute of conviction, “we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.” Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054 (9th Cir.2010) (internal quotation marks omitted). If the federal generic offense “is not a separate crime at common law but rather a classification of other crimes,” such as crimes involving moral turpitude, or here, crimes of violence, “we must also compare the crime of conviction with crimes we have previously determined to” fall into that particular classification of crimes. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008) (citing Navarro–Lopez v. Gonzales, 503 F.3d 1063, 1075 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority) (internal quotation marks and citations omitted), overruled on other grounds by United States v. Aguila–Montes de Oca, 655 F.3d 915, 916 (9th Cir.2011) (en banc)).³

Under this categorical approach, if the state statute of conviction criminalizes more conduct than the federal generic offense, then the state offense is not categorically included in the definition of the federal generic offense. United States v. Velasquez–Bosque, 601 F.3d 955, 958 (9th Cir.2010). A state crime of conviction qualifies as a generic federal offense “if and only if the full range of conduct covered” by the state criminal statute is included in the relevant definition of the federal offense. Barragan–Lopez v. Holder, 705 F.3d 1112, 1115 (9th Cir.2013) (quoting Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008)). If the state statute is divisible, and the full range of conduct in the state statute is not included in the federal offense, we may use the modified...