FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ADIL ELMAKHZOUMI, No. 16-16232 Plaintiff-Appellant, D.C. No. v. 3:15-cv-03958-JD JEFFERSON SESSIONS III, Attorney General; and ROBIN BARRETT, OPINION Defendants-Appellees. Appeal from the United States District Court For the Northern District of California James Donato, District Judge, Presiding Argued and Submitted December 7, 2017 San Francisco, California Filed March 1, 2018 Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Michael H. Simon, ∗ District Judge. Opinion by Judge Simon ∗ The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 2 ELMAKHZOUMI V. SESSIONS 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. COUNSEL 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 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ELMAKHZOUMI V. SESSIONS 3 Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees. 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 ...
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