Rodriguez-Castellon v. Holder

A lawful permanent resident convicted under California Penal Code § 288(c)(1) has been convicted of an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(F) and is removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Hector Martin Rodriguez-Castellon ("Rodriguez-Castellon"), a lawful permanent resident, plead guilty to California Penal Code § 288(c)(1). An Immigration Judge ("IJ") found that as a result of his conviction, Rodriguez-Castellon was “removable under 8 U.S.C. § 1227(a)(2)(E)(i) for a crime of child abuse” and 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).” Rodriguez-Castellon appealed to the Board of Immigration Appeals ("BIA") who found that Rodriguez-Castellon was not removable “for a crime of child abuse.” However, BIA upheld the IJ’s finding “that section 288(c)(1) was a categorical crime of violence under 18 U.S.C. § 16(b).” The Ninth Circuit applied “the categorical approach” in order to determine whether “a conviction under section 288(c)(1) qualifies as a crime of violence” under 18 U.S.C. § 16(b). A state crime “is a ‘crime of violence’ under § 16(b) if “the crime is a felony” and “involves a substantial risk that physical force against [a] person … may be used in the course of committing the offense.” To determine if a “state crime presents a substantial risk of physical force for the purposes of § 16(b),” the panel needed to decide ‘“whether the conduct covered by the crime present[ed] the requisite risk of injury in’ [an] ordinary case.” After reviewing the case law, the panel concluded that § 288(c)(1) did. Since it was also a felony, the panel reasoned that a conviction under § 288(c)(1) was a state crime that qualified as “a categorical crime of violence for [the] purposes of § 16(b).” The panel held that § 288(c)(1) was an “aggravated felony” under § 1101(a)(43)(F) and that the BIA had correctly upheld the basis for Rodriguez-Castellon’s removal. PETITION DENIED.