Hector Rodriguez-Castellon v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR MARTIN RODRIGUEZ- No. 10-73239
CASTELLON, AKA Hector Martin
Rodriguez, Agency No.
Petitioner, A035-215-035
v.
OPINION
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 10, 2013—Pasadena, California
Filed October 22, 2013
Before: Diarmuid F. O’Scannlain, Richard A. Paez,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 RODRIGUEZ-CASTELLON V. HOLDER
SUMMARY*
Immigration
The panel denied Hector Martin Rodriguez-Castellon’s
petition for review from the Board of Immigration Appeals’
decision finding him removable because his conviction under
California Penal Code § 288(c)(1) constituted a crime of
violence under 18 U.S.C. § 16(b).
The panel held that Rodriguez’s conviction for lewd and
lascivious acts upon a child is a categorical crime of violence
and therefore an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). The panel held as an issue of first
impression in this circuit that a violation of CPC § 288(c)(1),
in the ordinary case, poses a substantial risk of the use of
physical force under § 16(b).
COUNSEL
K. Lee Hartzler, San Diego, California, 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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RODRIGUEZ-CASTELLON V. HOLDER 3
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
1
Cal. Penal Code § 288(c)(1) states:
Any person who commits an act described in
subdivision (a) with the intent described in that
subdivision, and the victim is a child of 14 or 15 years,
and that person is at least 10 years older than the child,
is guilty of a public offense and shall be punished by
imprisonment in the state prison for one, two, or three
years, or by imprisonment in a county jail for not more
than one year. In determining whether the person is at
4 RODRIGUEZ-CASTELLON V. HOLDER
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
least 10 years older than the child, the difference in age
shall be measured from the birth date of the person to
the birth date of the child.
Cal. Penal Code § 288(a) provides, in turn:
(a) Except as provided in subdivision (i), any person
who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting
other crimes provided for in Part 1, upon or with the
body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual
desires of that person or the child, is guilty of a felony
and shall be punished by imprisonment in the state
prison for three, six, or eight years.
RODRIGUEZ-CASTELLON V. HOLDER 5
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
6 RODRIGUEZ-CASTELLON V. HOLDER
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
RODRIGUEZ-CASTELLON V. HOLDER 7
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
2
18 U.S.C. § 16 states in full:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense.
8 RODRIGUEZ-CASTELLON V. HOLDER
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 (1990). See
Nijhawan v. Holder, 557 U.S. 29, 33–38 (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
RODRIGUEZ-CASTELLON V. HOLDER 9
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 categorical
approach so long as one of the crimes included in the statute
is a categorical match for the federal generic offense. See
Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)
(stating that “the modified approach merely helps implement
the categorical approach when a defendant was convicted of
violating a divisible statute.”). Under the modified approach,
we examine certain judicial records to determine whether the
defendant was necessarily convicted of the elements of a
crime listed in a divisible statute that is a federal generic
offense. Shepard v. United States, 544 U.S. 13, 20 (2005).
3
Aguila-Montes de Oca was subsequently abrogated by Descamps v.
United States, 133 S. Ct. 2276 (2013).
10 RODRIGUEZ-CASTELLON V. HOLDER
B
In order to apply this categorical approach, we must first
determine the elements or definition of the federal generic
offense. Under 18 U.S.C. § 16, the phrase “crime of
violence” has two meanings. First, under § 16(a), a state
crime of conviction is a crime of violence if it “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.” Because the
statute does not define the term “physical force,” we give the
term its ordinary meaning, which in this context is “violent
force” or “force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559 U.S. 133, 140
(2010) (interpreting the phrase “physical force” in the context
of determining whether a state statute of conviction
constitutes a “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(1), which is defined as a
felony having “as an element the use . . . of physical force
against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i)).
Second, even if the state crime does not include one of the
elements listed in § 16(a), it is a “crime of violence” under
§ 16(b) if it is: (i) a felony; and (ii) “by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” 18 U.S.C. § 16(b). The Supreme Court has
explained that § 16(b) criminalizes conduct that “naturally
involve[s] a person acting in disregard of the risk that
physical force might be used against another in committing
an offense.” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).
In determining whether a particular state crime presents
a substantial risk of physical force for purposes of § 16(b), we
must determine “whether the conduct covered by the crime
presents the requisite risk of injury in the ordinary case.”
RODRIGUEZ-CASTELLON V. HOLDER 11
United States v. Ramos-Medina, 706 F.3d 932, 938 (9th Cir.
2012) (internal quotation marks omitted); see also Delgado-
Hernandez v. Holder, 697 F.3d 1125, 1128 (9th Cir. 2012)
(holding that in determining whether a state crime presents a
substantial risk that physical force may be used, “we inquire
whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents such a risk” (quoting
James v. United States, 550 U.S. 192, 208 (2007) (internal
quotations omitted)); Barragan-Lopez, 705 F.3d at 1115
(same). Our inquiry is thus not directed to conduct “at the
margins of the statute,” Delgado-Hernandez, 697 F.3d at
1129, but rather to a “usual or ordinary” violation. Ramos-
Medina, 706 F.3d at 938 (emphasis removed). Accordingly,
we have held that a state crime may categorically be a crime
of violence under § 16(b) even though it is possible to violate
the state statute “without the use of any physical force.”
United States v. Sandoval-Orellana, 714 F.3d 1174, 1179 (9th
Cir. 2013) (holding that a statute prohibiting specified sexual
abuse is the type of felony that, by its nature, creates a
substantial risk of physical force, even though some
violations may occur through use of psychological, rather
than physical coercion); see also United States v. Galvan-
Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999) (“[W]hen
analyzing the operative phrase ‘substantial risk,’ it is not
necessary that the risk must occur in every instance; rather a
substantial risk requires a strong probability that the event, in
this case the application of physical force during the
commission of the crime, will occur.”) (internal quotation
marks and brackets omitted).
Further, a state crime may categorically be a crime of
violence for purposes of § 16(b) even when a state court has,
in some cases, construed the statute as requiring something
less than violent force. Thus, in considering whether a
12 RODRIGUEZ-CASTELLON V. HOLDER
violation of section 207 of the California Penal Code (which
prohibits a person from kidnapping another “forcibly, or by
any other means of instilling fear”) was a categorical crime of
violence, we noted the California Supreme Court’s ruling, in
construing this section, that “‘the only force required to
kidnap an unresisting infant or child is the amount necessary
to move the victim a substantial distance.’” Delgado-
Hernandez, 697 F.3d at 1129 (quoting In re Michele D.,
29 Cal. 4th 600, 612 (2002)). The state court’s ruling was
later codified by the state legislature and added to section
207. Id. While acknowledging that “merely picking up and
carrying away an infant, without any other conflict, does not
entail a substantial risk of force as the term is used in § 16,”
we held that the state court’s interpretation of section 207
“does not describe an ordinary case” of the offense conduct;
“rather it merely sets a lower limit on the force required.” Id.
(emphasis in original). Because kidnapping presented a
substantial risk of force in the ordinary case, we concluded
that a violation of the state statute constituted a crime of
violence for purposes of § 16(b). Id. at 1133.
In summary, in order for a state crime of conviction to
constitute a “crime of violence” for purposes of § 16, it must
either include as an element “the use, attempted use, or
threatened use of physical force against the person or
property of another,” § 16(a), or be a felony which “by its
nature, involves a substantial risk that physical force against
the person or property of another may be used in the course
of committing the offense,” § 16(b). To determine whether
a state crime of conviction “involves a substantial risk” of the
use of force, we must determine whether the conduct covered
by that crime raises a substantial risk of physical force “in the
ordinary case,” even though, at the margin, some violations
of the state statute may not raise such a risk. In determining
RODRIGUEZ-CASTELLON V. HOLDER 13
whether a particular state crime meets this criteria, we may
compare the state crime of conviction to other crimes that we
or other courts have previously categorized as crimes of
violence under § 16 or other statutes using a similar
definition.4
C
We now turn to the state crime of conviction, section
288(c)(1), and compare its elements with the federal
definition of § 16. Section 288(c)(1) criminalizes the
following conduct: (1) willfully committing any lewd or
lascivious act; (2) upon or with any part of the body of a child
4
Federal law provides a range of definitions for the term “crime of
violence.” Some definitions incorporate elements of both §§ 16(a) and
16(b). See, e.g., U.S.S.G. § 4B1.2(a) (defining a crime of violence as a
crime punishable by more than a year imprisonment that “has as an
element the use, attempted use, or threatened use of physical force against
the person of another, or . . . is burglary of a dwelling, arson, or extortion,
involves the use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another”); 18 U.S.C.
§ 924(e)(2)(B)(ii) (giving the term “violent felony” the same definition as
“crime of violence” in § 4B1.2(a)(2)). In other cases, the federal
definition is more similar to the definition of “crime of violence” in
§ 16(a), rather than to that in § 16(b). See U.S.S.G. § 2L1.2 cmt. 1(B)(iii)
(defining a “crime of violence” as one of a number of listed offenses,
including sexual abuse of a minor, statutory rape, or any other offense
“that has as an element the use, attempted use, or threatened use of
physical force against the person of another.”). Because “[w]hat may be
a predicate offense under one approach [to defining ‘crime of violence’]
is not necessarily a predicate offense under another approach,” Lopez-
Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011), we must use
caution in relying on cases construing other federal definitions of “crime
of violence.”
14 RODRIGUEZ-CASTELLON V. HOLDER
who is 14 or 15 years old; (3) with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires
of the defendant or the child; (4) when the defendant is at
least ten years older than the child. Castro, 607 F.3d at 568.
Section 288(c)(1) is not categorically a crime of violence
as defined in § 16(a), because it does not include as an
element “the use, attempted use, or threatened use of physical
force against the person or property of another.” § 16(a). We
turn then to the question whether section 288(c)(1) is
categorically a crime of violence as defined in § 16(b). There
is no dispute that a violation of section 288(c)(1) is a felony
under California law, Castro, 607 F.3d at 567, and so we
must determine, as an issue of first impression in this circuit,
whether a violation of section 288(c)(1), in the ordinary case,
poses a substantial risk of the use of physical force under
§ 16(b).
To characterize an ordinary case “in the absence of
detailed statistical information that is unlikely to be
available,” United States v. Sonnenberg, 628 F.3d 361, 366
(7th Cir. 2010), “the best we can do is use common sense and
experience,” id., and look to persuasive authority from other
courts that have considered whether similar statutes qualify
as crimes of violence for purposes of § 16(b), as we do in
cases analyzing crimes involving moral turpitude. See
Cerezo, 512 F.3d at 1166; see also Delgado-Hernandez,
697 F.3d at 1129–30 (looking to California cases and out-of-
circuit authority to evaluate whether attempted kidnapping
was a categorical crime of violence under § 16(b)); Prakash
v. Holder, 579 F.3d 1033, 1036 (9th Cir. 2009) (adopting the
reasoning of a Third Circuit case in deciding whether
solicitation to commit murder was a crime of violence under
§ 16(b)). Based on such a review, set out in detail below, we
RODRIGUEZ-CASTELLON V. HOLDER 15
conclude that the weight of authority supports the conclusion
that the sort of sexual conduct described in section 288(c)(1)
raises a substantial risk that an adult may use physical force
against the 14- or 15-year-old child in the ordinary case.
Although we have not yet considered whether section
288(c)(1) or another state statute criminalizing sexual conduct
by an older adult with children who are 14 or 15 years old
constitutes a “crime of violence” as defined in § 16(b), other
circuits considering this issue have generally concluded that
such state crimes by their nature create a substantial risk of
physical force. See, e.g., United States v. Austin, 426 F.3d
1266, 1275 (10th Cir. 2005) (recognizing the “general
consensus that sexual abuse in touching a minor inherently,
or by its nature, constitutes a crime of violence [under § 16]
because it involves a substantial risk of physical force”). The
Eleventh Circuit’s decision in Ramsey v. I.N.S., 55 F.3d 580(11th Cir. 1995), is directly on point. In Ramsey, a petitioner
sought review of the BIA’s determination that he was
deportable because his state conviction for attempted lewd
assault was a “crime of violence” for purposes of § 16(b), and
therefore constituted an aggravated felony. The state crime
of conviction provided that any person who “[h]andles,
fondles, or assaults any child under the age of 16 years in a
lewd, lascivious, or indecent manner . . . without committing
the crime of sexual battery, commits a felony of the second
degree.” Id. at 583. The statute also provided that the
victim’s consent was not a defense to the crime. Id. While
acknowledging that a violation of this statute could be
committed “without the use of physical force,” the court
concluded that the offense was a felony “which involves a
substantial risk that physical force may be used against the
victim in the course of committing the offense.” In reaching
this conclusion, Ramsey relied on United States v. Reyes-
16 RODRIGUEZ-CASTELLON V. HOLDER
Castro, 13 F.3d 377 (10th Cir. 1993) and United States v.
Rodriguez, 979 F.2d 138 (8th Cir. 1992). In Reyes-Castro,
the Tenth Circuit held that a state crime of conviction
(involving an adult touching the anus, buttocks, or genitalia
of a female child younger than 14 years) poses a “substantial
risk” of the use of physical force for purposes of § 16(b),
because “when an older person attempts to sexually touch a
child . . . there is always a substantial risk that physical force
will be used to ensure the child’s compliance.” 13 F.3d at
379; see also Rodriguez, 979 F.2d at 141 (holding that a state
statute making it unlawful for a person 18 or older to sexually
touch a child or solicit a child to engage in a sex act (among
other things) is inherently an aggravated felony for purposes
of U.S.S.G. § 2L1.2(b)(2), which at that time defined
“aggravated felony” as any crime of violence as defined in
18 U.S.C. § 16).5
United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.
1996), followed much the same reasoning. Here, the Fifth
Circuit determined that a state statute making it a crime for an
adult to “engage[] in sexual contact” “with a child younger
than 17 years and not his spouse” was a “crime of violence”
as defined in § 16(b), because the offense inherently involved
a substantial risk that physical force may be used.6 Id. at 421
5
In 2001, the Sentencing Commission amended § 2L1.2 to eliminate the
reference to § 16.
6
Although the Fifth Circuit was considering this issue for purposes of
sentencing enhancement under § 2L1.2, at the time of the opinion that
guideline provision incorporated the definition of “crime of violence” in
§ 16(b).
RODRIGUEZ-CASTELLON V. HOLDER 17
n.3 (citing Tex. Penal Code § 21.11(a)(1)). The court
reasoned that it was “obvious that such crimes typically occur
in close quarters, and are generally perpetrated by an adult
upon a victim who is not only smaller, weaker, and less
experienced, but is also generally susceptible to acceding to
the coercive power of adult authority figures.” Id. at 422.
Because “[a] child has very few, if any, resources to deter the
use of physical force by an adult intent on touching the
child,” the court concluded that “there is a significant
likelihood that physical force may be used to perpetrate the
crime.” Id.
The Second Circuit reached a similar conclusion in Costa
v. Holder, 611 F.3d 110 (2d Cir. 2010). In Costa, the court
considered a state statute providing that “a person is guilty of
sexual assault in the second degree when such person engages
in sexual intercourse with another person and: (1) Such other
person is thirteen years of age or older but under sixteen years
of age and the actor is more than three years older than such
other person.” Id. at 114 n.3 (citing Conn. Gen. Stat. § 53a-
71(a)). The Second Circuit determined that this offense was
a “crime of violence” for purposes of § 16, citing the
reasoning in Rodriguez. See id. at 115. Further, the court
endorsed and applied the reasoning in Reyes-Castro that
“when an older person attempts to sexually touch a child . . .
there is always a substantial risk that physical force will be
used to ensure the child’s compliance.” Id. at 116. The court
explained that “the risk of the use of force is inherent in each
of the offenses set forth in the statute,” even though a
defendant could be convicted of the state offense by engaging
in “consensual sexual intercourse” without force. Id. at 115;
see also Chery v. Ashcroft, 347 F.3d 404, 409 (2d Cir. 2003)
(endorsing the reasoning in Reyes-Castro).
18 RODRIGUEZ-CASTELLON V. HOLDER
Courts have likewise determined that state crimes
involving sexual contact between children and older adults
give rise to a risk of force and were therefore crimes of
violence for purposes of U.S.S.G. § 4B1.2, which requires a
showing that the offense “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
See United States v. Curtis, 481 F.3d 836, 838–39 (D.C. Cir.
2007) (noting that it is “universally recognized” that sexual
offenses against children are crimes of violence under
U.S.S.G. § 4B1.2 “because of the substantial likelihood that
the perpetrator will use physical force to ensure the child’s
compliance” with his demands).7 In United States v. Pierce,
278 F.3d 282, 289–90 (4th Cir. 2002), abrogated in part by
Begay v. United States, 553 U.S. 137 (2008), for instance, the
court considered whether a state statute described a crime of
violence for purposes of U.S.S.G. § 4B1.2, which at the time
simply required a court to analyze whether the state crime
“otherwise involves conduct that presents a potential risk of
physical injury to another.” The state statute at issue
provided that it was a felony to “[w]illfully commit . . . any
lewd or lascivious act upon or with the body or any part or
member of the body of any child of either sex under the age
7
Although the definition of “crime of violence” in § 4B1.2 is different
from that in § 16(b), courts have frequently relied on opinions analyzing
U.S.S.G. § 4B1.2 in considering whether a state crime constitutes a “crime
of violence” for purposes of § 16(b). See, e.g., Velazquez-Overa, 100 F.3d
at 421 n.4 (relying on our decision in United States v. Wood, 52 F.3d 272,
275 (9th Cir. 1995), construing U.S.S.G. § 4B1.2, as reinforcing the
conclusion “that offenses involving physical sexual abuse of children are
acts of violence” for purposes § 16(b), even though a “crime of violence”
under § 4B1.2 “differs somewhat” from that in § 16); see also United
States v. Coronado-Cervantes, 154 F.3d 1242, 1243 (10th Cir. 1998)
(holding that a case construing U.S.S.G. § 4B1.2 provided persuasive
authority for construing § 16(b)).
RODRIGUEZ-CASTELLON V. HOLDER 19
of 16 years” if the perpetrator was at least five years older
than the child. Id. at 282 (citing N.C. Gen. Stat. § 14-
202.1(a)). Although the state supreme court had defined the
statute as not requiring any physical touching, the Fourth
Circuit determined there was a risk of physical injury,
because (among other reasons) “[w]hen a child is the victim
of adult conduct, force can be inferred.” Id. at 290. In
reaching this conclusion, the Fourth Circuit asserted that it
joined “every other circuit that has considered the question.”
Id. at 291 (citing cases); see also United States v. Scudder,
648 F.3d 630, 633–34 (8th Cir. 2011) (holding that fondling
or touching a child between 12 and 16 is crime of violence for
purposes of 18 U.S.C. § 924(e)(2)(B)(ii), which uses the same
definition of the term as U.S.S.G. § 4B1.2). We have reached
a similar conclusion in analyzing a state statute that
criminalized sexual offenses involving younger children. See
United States v. Wood, 52 F.3d 272, 275 (9th Cir. 1995)
(holding that a statute involving sexual contact with children
under 14 involved a “serious potential risk of physical injury”
under the catch-all provision of U.S.S.G. § 4B1.2, because
“the risk of violence is implicit in the size, age and authority
position of the adult in dealing with a child”).
These concerns are amplified where the perpetrator is
significantly older than the victim. In United States v. Alas-
Castro, 184 F.3d 812, 813 (8th Cir. 1999), for example, the
Eighth Circuit concluded that a statute prohibiting adults over
19 from “subject[ing] another person fourteen years of age or
younger to sexual contact” was a crime of violence as defined
by § 16(b) because “this type of contact between parties of
differing physical and emotional maturity carries a substantial
risk that physical force . . . may be used in the course of
committing the offense.” (internal quotation marks omitted).
When the state statute does not specify the perpetrator’s age,
20 RODRIGUEZ-CASTELLON V. HOLDER
the analysis may be different. For instance, in Xiong v. I.N.S.,
the Seventh Circuit considered a case involving an 18-year-
old man who had been convicted of engaging in consensual
sex with his 15-year-old girlfriend. 173 F.3d 601, 603, 607
(7th Cir. 1999). The court concluded that the state crime of
conviction, which prohibited “sexual contact or sexual
intercourse with a person who has not attained the age of 16
years,” id. at 603, but did not specify the age of the
perpetrator, was not a crime of violence for purposes of
§ 16(b), id. at 607. In reaching this conclusion, the court
reasoned that “the conduct of which [the defendant] was
convicted consisted of consensual sex between a boyfriend
and his fifteen year old girlfriend,” and therefore “[a]bsent a
substantial age difference, this conduct did not, ‘by its nature,
involve a substantial risk of physical force.’” Id. (internal
alterations omitted). The court’s proviso suggests that when
a “substantial age difference” between the perpetrator and the
victim is an element of the state crime of conviction, the court
would reach a different conclusion. See id. at 607.8
Our decision in United States v. Pereira-Salmeron,
337 F.3d 1148 (9th Cir. 2003), though not directly on point,
is consistent with the reasoning of these circuits. Pereira-
Salmeron considered whether a prior felony conviction under
state law for “carnally know[ing], without the use of force, a
child thirteen years of age or older but under fifteen years of
age” constituted a crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii) of the Guidelines, which at that time
8
Further, because the Seventh Circuit did not consider whether the
conduct covered by the statute presents a risk of injury “in the ordinary
case,” but noted merely that the statute encompassed a statutory rape
offense, Xiong, 173 F.3d at 605, its analysis is not directly applicable in
our circuit.
RODRIGUEZ-CASTELLON V. HOLDER 21
included “forcible sex offenses (including sexual abuse of a
minor).” Id. at 1150–51 (emphasis omitted).9 Even though
the state crime “explicitly addresse[d] conduct undertaken
‘without the use of force,’” id. at 1151 (citing Va. Code
§ 18.2-63), we concluded that “sexual contact with a minor
inherently presents a risk of force sufficient to characterize
such misconduct as a ‘crime of violence’ under the
Sentencing Guidelines.” Id. at 1153–54. In so holding, we
quoted with approval the Fifth Circuit’s explanation that
because sexual offenses involving minors “typically occur in
close quarters, and are generally perpetrated by an adult upon
a victim who is not only smaller, weaker, and less
experienced, but is also generally susceptible to acceding to
the coercive power of adult authority figures . . . . In such
circumstances, there is a significant likelihood that physical
force may be used to perpetrate the crime.” Id. (quoting
Velazquez-Overa, 100 F.3d at 418). Accordingly, we
concluded that because “sexual contact with a minor
9
The Sentencing Guidelines defined “crime of violence” in the
Application Notes to § 2L1.2, which at the time provided:
Crime of violence-
(I) means an offense under federal, state, or local law
that has as an element the use, attempted use, or
threatened use of force against the person of another;
and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.
U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (2002).
22 RODRIGUEZ-CASTELLON V. HOLDER
inherently presents a risk of force,” a state crime prohibiting
a “sexual offense against a minor may constitute a crime of
violence for sentencing purposes even though an element of
force—actual, attempted, or threatened—is not required.” Id.
at 1153. Although Pereira-Salmeron considered a state crime
protecting 14-year-olds, while section 288(c)(1) protects 14-
and 15-year-olds, we find this reasoning equally applicable to
children who are 15 years of age.
Our review thus indicates that courts have generally
classified state crimes analogous to section 288(c)(1) as
crimes that present “a substantial risk that physical force will
be used to ensure the child’s compliance.” Velazquez-Overa,
100 F.3d at 422. These cases emphasize that older adults
may impose unwanted sexual contact on children by taking
advantage of their lesser size, strength, and maturity. Under
this reasoning, section 288(c)(1) raises the substantial risk
that a much older perpetrator (age 24 or 25 years) will use
force to commit sexual acts “upon or with the body” of a
child (age 14 or 15 years) if the child does not comply with
the adult’s demands. We agree with this reasoning, and
therefore conclude that section 288(c)(1) is a felony that
raises a substantial risk of the use of force in the ordinary
case.
D
Rodriguez contends that this conclusion is erroneous for
two reasons. First, he asserts that section 288(c)(1) is not
analogous to the state crimes of conviction considered above,
because it may be violated by consensual conduct. Rodriguez
relies on Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.
2006), where we held that a California statute criminalizing
“an act of unlawful sexual intercourse with a minor [i.e., a
RODRIGUEZ-CASTELLON V. HOLDER 23
person under 18 years of age] who is more than three years
younger than the perpetrator,” id. at 1049, did not constitute
a crime of violence under § 16(b) because it could involve
“consensual sexual intercourse with a minor between the ages
of seventeen and eighteen,” id. at 1051.
Valencia is not on point here for several reasons. The
state crime of conviction in Valencia, California Penal Code
section 261.5(c), criminalizes “statutory rape” situations that
can involve minors “one day shy of eighteen,” id. at 1052,
engaging in consensual sexual conduct with adults who are
only three years older. We have previously stated that the
risks associated with sexual acts committed with older
adolescents are different from those associated with
adolescents between 14 and 16 years old. See Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1154 (9th Cir. 2008)
(en banc) (“We and our sister circuits have been careful on
other occasions to distinguish laws governing the sexual
behavior of younger teenagers from those governing the
behavior of 16- and 17-year-olds” and acknowledging “a
significant difference between sexual relations with someone
under 16 and sexual relations with someone between the ages
of 16 and 18”), overruled on other grounds by Aguila-Montes
de Oca, 655 F.3d at 928.10 We have not extended Valencia’s
logic to 14- or 15-year-olds.
Despite this key distinction, Rodriguez asserts that we are
bound to extend the reasoning in Valencia to 14- and 15-year-
olds given our decision in United States v. Castro. We
disagree. In Castro, we held that a violation of section
288(c)(1) did not constitute the federal generic offense of
“sexual abuse of a minor” because “sexual conduct with a 15-
10
See supra note 3.
24 RODRIGUEZ-CASTELLON V. HOLDER
year-old child is not per se abusive.” 607 F.3d at 569. In
applying the categorical approach in this context, we look to
state cases construing the statute at issue and consider
whether the statute can be violated by conduct that is not
“sexual,” or does not constitute “abuse.” See id. at 568–69;
see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007) (holding that a court must find a “realistic probability
. . . that the State would apply its statute to conduct that falls
outside the generic definition of a crime” in order to find that
a “state statute creates a crime outside the generic definition
of a listed crime in a federal statute.”). In United States v.
Baza-Martinez, for instance, we held that a state statute
prohibiting “indecent liberties” with a child under 16 was not
categorically “sexual abuse of a minor” for purposes of
U.S.S.G. § 2L1.2(b)(1)(A) because at least some of the
conduct proscribed by the statute did not constitute abuse.
464 F.3d 1010, 1017 (9th Cir. 2006). In reaching this
conclusion, we relied on a state case holding that an adult
who filmed a minor undressing without her knowledge
violated the statute, even though the minor did not know
about the film until after she was 21, and therefore “was not
psychologically harmed until she was no longer a minor.” Id.
But this framework for determining whether a state crime is
categorically “sexual abuse of a minor” does not guide our
analysis of whether a state crime poses a substantial risk of
physical force. In this latter context, our task is to decide
whether such a risk is present in the ordinary case, even if
there may be situations, on the margin, where no risk is
present because of the child’s consent. See Ramos-Medina,
706 F.3d at 938. Said otherwise, a court considering whether
a state statute meets the definition of “sexual abuse of a
minor” must consider cases “at the margins of the statute,”
but a court performing an analysis of “substantial risk” under
§ 16(b) may not do so. Delgado-Hernandez, 697 F.3d at
RODRIGUEZ-CASTELLON V. HOLDER 25
1129. Therefore, Castro does not answer the fundamental
question here, which is whether, in the ordinary case, sexual
conduct by a 24- or 25-year-old adult with a 14- or 15-year-
old child poses a substantial risk of force.
Rodriguez’s argument that Valencia controls our analysis
here also neglects an important element of section 288(c)(1):
the perpetrator must be at least 10 years older than the victim.
The statute at issue in Valencia, by contrast, involved only a
three-year age difference, indicating that the statute was
intended to cover consensual “statutory rape” crimes, which
are distinct from those crimes covered by section 288(c)(1).
See Valencia, 439 F.3d at 1053. Indeed, California courts
have noted that the state legislature included a ten-year age
difference between the perpetrator and the victim in section
288(c)(1) precisely to avoid prosecutions for “sexual conduct
short of intercourse between consenting teenagers,” and to
aim only at “protect[ing] 14[-] and 15-year-olds from
predatory older adults.” People v. Paz, 80 Cal. App. 4th 293,
296–97 (2000). Because older adults may use their position
of authority or physical superiority to compel younger
adolescents to engage in unwanted sexual conduct, there is a
far greater risk of force when an adult more than ten years
older preys on a 14- or 15-year-old than when a young
adolescent engages in sexual conduct with someone just a
few years older. See Valencia, 439 F.3d at 1051 (suggesting
that the physical and emotional disparities between a younger
child and an older adult may raise different concerns than
those associated with a statutory rape case involving parties
closer in age); see also United States v. Cadieux, 500 F.3d 37,
47 (1st Cir. 2007) (noting that the defendant was in his mid-
26 RODRIGUEZ-CASTELLON V. HOLDER
twenties when he assaulted a 14-year-old, and that “[t]his
chronological age gap falls squarely within the sexual
touching caselaw holding that age differences of this
magnitude necessarily create a serious potential risk of
physical injury to another”).
Second, Rodriguez argues that because California courts
have held that section 288(c)(1) may be violated without any
physical contact between the perpetrator and the victim, the
statute does not categorically pose a substantial risk of
physical force. In making this argument, Rodriguez points to
the California cases which have held that a violation of
section 288(a) or (c)(1) could occur when the defendant, with
the requisite sexual intent, orders the victim to engage in
sexual touching of the victim’s own body. See, e.g., People
v. Mickle, 54 Cal. 3d 140, 176 (1991) (acknowledging that
section 288 may be violated where defendant instructed
victim to disrobe); People v. Austin, 111 Cal. App. 3d 110,
114 (1980) (holding that there must be touching to violate
section 288, but it could be done by the child victim “on its
own person providing such touching was at the instigation of
a person who had the required specific intent”) (initial
capitals omitted).11
11
Rodriguez also cites People v. Crabtree, 169 Cal. App. 4th 1293(2009), which upheld a conviction under section 288(c)(1) of a defendant
who had engaged in sexually explicit internet chat with a child under 15
years old. But the relevant question in that case was simply whether the
victim was younger than 16; the court did not address whether such
conduct was sufficient to violate the statute. Id. at 1323–24.
RODRIGUEZ-CASTELLON V. HOLDER 27
In our view, these cases are “at the margin” of violations
of section 288, and merely set the “lower limit” as to the type
of contact required; they tell us little about whether the sort
of sexual conduct proscribed by section 288(c)(1) inherently
poses a substantial risk of force in an ordinary case.12 See
Delgado-Hernandez, 697 F.3d at 1129 (concluding that
kidnapping in violation of section 207 of the California Penal
Code was a crime of violence for purposes of § 16(b), even
though the state court had held the statute could be violated
by merely moving an unresisting infant). Although we have
not undertaken an empirical analysis, our “common sense and
experience,” Sonnenberg, 628 F.3d at 366, and our review of
authority from other courts, leads to the conclusion that a
violation of section 288(c)(1) in the ordinary case (as
described in many California opinions) involves the sort of
12
Indeed, a number of courts have indicated that sexual encounters
between adults and children frequently escalate to more severe offenses
even when the adult does not initially touch the child. As the Eleventh
Circuit stated in United States v. Searcy, 418 F.3d 1193 (11th Cir. 2005),
an adult’s attempt to entice a minor to engage in sexual activity always
“presents the possibility of an encounter that could result in ‘a serious risk
of physical injury’” or a serious risk of physical force. See id. at 1197; see
also People v. Memro, 11 Cal. 4th 786, 871–72 (1995) (defendant brought
7-year-old victim to his apartment, either forcibly disrobed him or
instructed him to disrobe, then sodomized and strangled him); Mickle,
54 Cal. 3d at 175–76 (defendant instructed child to disrobe then forcibly
raped and murdered her).
28 RODRIGUEZ-CASTELLON V. HOLDER
conduct that raises a substantial risk of force.13 Accordingly,
we reject Rodriguez’s arguments to the contrary.
IV
In light of our review, we conclude that section 288(c)(1)
is a felony that raises a substantial risk of physical force in
the ordinary case. Accordingly, Rodriguez’s state crime of
conviction constitutes a categorical “crime of violence,” for
purposes of § 16(b). As such, it is an “aggravated felony” for
purposes of § 1101(a)(43)(F), and the BIA did not err in
upholding this basis for removal.
PETITION DENIED.
13
See, e.g., People v. Martinez, 11 Cal. 4th 434, 444 (1995) (explaining
that “throughout [section 288’s] history, the cases have made clear that a
‘touching’ of the victim is required, and that sexual gratification must be
presently intended at the time such ‘touching’ occurs,” though the ultimate
form of the touching is immaterial); People v. Ortega, —Cal. Rptr. 3d—,
2013 WL 4447554, *1 (Ct. App. 2013) (upholding conviction of an adult
under section 288(c)(1) where the adult sexually molested his 15-year-old
daughter by touching her breasts and vagina while she was asleep); People
v. Tompkins, 185 Cal. App. 4th 1253, 1257 (2010) (upholding conviction
of an adult under section 288(c)(1) for sexually molesting a 14-year-old
girl by slapping or touching her breasts on multiple occasions); People v.
Cavallaro, 178 Cal. App. 4th 103, 106–07 (2009) (upholding conviction
of a 27-year-old defendant under section 288(c)(1) for sexually molesting
two girls, age 14 and 15, by rubbing their breasts, buttocks, thighs and
vagina, among other things, despite their resistance); People v. Lopez,
42 Cal. 4th 960, 963–65 (2008) (upholding conviction of adult under
section 288(c)(1) for sexually molesting a 14- or 15-year-old child by
“once touching his penis, twice masturbating him, and once orally
copulating him”); People v. Mejia, 155 Cal. App. 4th 86, 90, 101 (2007)
(upholding conviction of adult under section 288(c)(1) for sexually
molesting a 14-year-old girl by touching her vagina over her clothes
though she “tried to push him off”).