Background

• Rodriguez-Castellon, a Mexican citizen and lawful permanent resident, petitions review of a BIA removal order under 8 U.S.C. §1227(a)(2)(A)(iii).
• He was convicted in California for 288(c)(1) related to lewd acts with a 15-year-old and received a six-year sentence in 2005.
• The government served a Notice to Appear (June 2009) alleging removability as an aggravated felony and also as a crime of child abuse.
• The IJ sustained removal on multiple grounds, including that 288(c)(1) is a categorical crime of violence under 18 U.S.C. §16(F), and the BIA affirmed one ground (§16(b)) but not others.
• The Ninth Circuit held that 288(c)(1) is a crime of violence under §16(b) and thus an aggravated felony under §1101(a)(43)(F); petition denied.

Issues

Key Cases Cited

• Castro, 607 F.3d 566 (9th Cir. 2010) (held 288(c)(1) not categorically sexual abuse of a minor; informs 16(b) analysis)
• Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996) (sexual offense against a minor inherently creates substantial risk of force under §16(b))
• Delgado-Hernandez, 697 F.3d 1125 (9th Cir. 2012) (analyze whether a state crime presents substantial risk of force for §16(b))
• Ramos-Medina, 706 F.3d 932 (9th Cir. 2012) (determines substantial risk by ordinary-case conduct; not margins of statute)
• Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (considers applicability of §16(b) to a state conviction under older guidelines)
• Valencia, 439 F.3d 1046 (9th Cir. 2006) (distinguishes statutory rape cases from 14–15-year-old victim scenarios for §16(b))
• Cadieux, 500 F.3d 37 (1st Cir. 2007) (sexual offenses against a minor can be crimes of violence under §16(b))