and Submitted December 7, 2017 San Francisco, California
from the United States District Court For the Northern
District of California James Donato, District Judge,
Presiding DC. No. 3:15-cv-03958-JD
P. Sprouls (argued), Law Office of Ricci & Sprouls, San
Francisco, California, for Plaintiff-Appellant.
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.
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.
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.
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.
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.
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 ...