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Elmakhzoumi v. Sessions

United States Court of Appeals, Ninth Circuit

March 1, 2018

Adil Elmakhzoumi, Plaintiff-Appellant,
v.
Jefferson Sessions III, Attorney General; and Robin Barrett, Defendants-Appellees.

          Argued and Submitted December 7, 2017 San Francisco, California

         Appeal from the United States District Court For the Northern District of California James Donato, District Judge, Presiding DC. No. 3:15-cv-03958-JD

          Frank P. Sprouls (argued), Law Office of Ricci & Sprouls, San Francisco, California, for Plaintiff-Appellant.

          Victor M. Mercado-Santana (argued), Trial Attorney; Elizabeth Stevens, Assistant Director; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Michael H. Simon, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel affirmed the district court's dismissal for failure to state a claim of Adil Elmakhzoumi's petition challenging the denial of his naturalization application, holding that Elmakhzoumi's conviction for sodomy where the victim was unable to consent, in violation of California Penal Code § 286(i), is an aggravated felony.

         The panel held that CPC § 286(i) is an aggravated felony rape offense under 8 U.S.C. § 1101(a)(43)(A) because the conduct prohibited by CPC § 286(i) falls entirely within the generic definition of "rape" as articulated in Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000). Accordingly, the panel concluded that Elmakhzoumi has been convicted of an aggravated felony and cannot meet the good moral character requirement for naturalization.

          OPINION

          SIMON, DISTRICT JUDGE

         Plaintiff Adil Elmakhzoumi appeals from an order dismissing his challenge to the denial of his application for naturalization by the United States Citizenship and Immigration Services ("USCIS"). The district court dismissed Elmakhzoumi's petition for failure to state a claim because Elmakhzoumi had been convicted of an aggravated felony and was therefore ineligible for naturalization. Elmakhzoumi argues that the district court erred in holding that his conviction for sodomy where the victim was unable to consent, in violation of California Penal Code ("CPC") § 286(i), is an aggravated felony as a rape offense under 8 U.S.C. § 1101(a)(43)(A). Because the conduct prohibited by CPC § 286(i) falls entirely within the generic definition of "rape" as articulated in Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000), we affirm.

         BACKGROUND

         Elmakhzoumi is a native and citizen of Morocco and has been a permanent resident of the United States since 1992. On June 3, 2005, the California Superior Court convicted Elmakhzoumi of sodomy where the victim cannot consent, in violation of CPC § 286(i). On July 25, 2012, the United States Department of Homeland Security commenced removal proceedings against Elmakhzoumi, alleging that he was removable because his sodomy conviction was a "crime of violence" under 8 U.S.C. § 1101(a)(43)(F). The immigration judge terminated those proceedings, ruling that Elmakhzoumi's conviction was not a crime of violence.

         On February 11, 2014, Elmakhzoumi applied to naturalize as a United States citizen. USCIS denied his application on the ground that he could not meet the requirement for naturalization of having good moral character because his sodomy conviction was a rape offense and therefore ...


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