United States v. Sandoval-Orellana

Sexual penetration by a foreign object, in violation of Cal. Penal Code § 289(a)(1), "involves a substantial risk of the use of force against another and therefore qualifies as an aggravated felony crime" as defined in 8 U.S.C. § 1101(a)(43)(F).

In August 2003, Irvin Sandoval-Orellana ("Sandoval-Orellana"), a Guatemalan native granted lawful permanent residence in 1992, "was convicted of 'sexual penetration by foreign object' in violation of Cal. Penal Code § 289(a)(1)." Sandoval-Orellana was subsequently deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) which states that “any alien who is convicted of an aggravated felony at any time after admission is deportable." In December 2010, Sandoval-Orellana attempted to re-enter the United States and was detained and later indicted "with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)." Sandoval-Orellana moved to dismiss the violation of §1326 by arguing that his 2003 deportation was invalid. The district court dismissed. On appeal, Sandoval-Orellana argues "that he was wrongfully deported because he was never convicted of an aggravated felony and thus was eligible for various types of discretionary relief." Specifically, Sandoval-Orellana argues that because § 289 can be "violated with consent given under duress" and therefore does not require a finding of violence, § 289 cannot categorically be considered a "crime of violence under §16(b)." The Ninth Circuit found that "in the 'ordinary case,' a conviction for sexual penetration with a foreign object involves a substantial risk of the use of force against another and therefore qualifies as an aggravated felony crime." Further the court found that a "conviction under PC § 289 does not rest on the victim's legal incapacity to consent to sexual penetration; rather it requires that the sexual penetration be accomplished 'against the victim's will.'" AFFIRMED.