883 F.3d 1170
9th Cir.2018Background
- Plaintiff Adil Elmakhzoumi, a Moroccan national and U.S. permanent resident since 1992, was convicted in California in 2005 of sodomy when the victim could not consent under Cal. Penal Code § 286(i).
- DHS initiated removal proceedings in 2012 alleging the conviction was a "crime of violence;" an IJ later terminated those proceedings.
- In 2014 Elmakhzoumi applied for naturalization; USCIS denied the application, concluding the sodomy conviction was a rape offense and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), making him ineligible for naturalization due to lack of "good moral character."
- Elmakhzoumi sought de novo district-court review; the district court dismissed his petition under Rule 12(b)(6), holding § 286(i) falls within the INA's generic definition of "rape" per Castro-Baez v. Reno.
- On appeal, Elmakhzoumi argued that nonconsensual sodomy under § 286(i) is not "rape" for INA purposes because California separates "sodomy" and "sexual intercourse," and the generic definition should not encompass anal intercourse.
- The Ninth Circuit affirmed, concluding the conduct proscribed by § 286(i) falls entirely within the generic definition of "rape."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conviction under Cal. Penal Code § 286(i) (sodomy where victim cannot consent) is an aggravated felony as a "rape" under 8 U.S.C. § 1101(a)(43)(A) | Elmakhzoumi: California's separate sodomy statute means nonconsensual sodomy is not "rape" as that term is generically used in the INA | Government: The generic meaning of "rape" includes nonconsensual anal intercourse; § 286(i) fits Castro-Baez's definition | The Ninth Circuit affirmed: § 286(i) falls within the INA's generic definition of "rape," so the conviction is an aggravated felony |
Key Cases Cited
- Castro-Baez v. Reno, [citation="217 F.3d 1057"] (9th Cir. 2000) (adopts an ordinary, contemporary definition of "rape" for INA purposes, including nonconsensual intercourse when ability to resist is impaired)
- Baron-Medina v. INS, [citation="187 F.3d 1144"] (9th Cir. 1999) (endorses using the ordinary meaning of statutory terms to determine inclusion in INA aggravated-felony categories)
- Daniels-Hall v. Nat’l Educ. Ass’n, [citation="629 F.3d 992"] (9th Cir. 2010) (standard of de novo review for district court dismissals on pleadings)