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Case Number:	Date Filed:
99-70484	06/30/00





                                                     No. 99-70484
JANET RENO, Attorney General;
                                                     INS No.
Executive Office for Immigration
Review, Board of Immigration

Petition to Review a Decision of the
Immigration and Naturalization Service

Submitted June 23, 20001
San Francisco, California

Filed June 30, 2000

Before: Betty B. Fletcher, Michael Daly Hawkins and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

1 The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).


Lamar Peckham, Santa Rosa, California, for the petitioner.

Robert S. Mueller, III and Robert Yeargin, San Francisco,
California; and Richard Evans and Marion Guyton, Washing-
ton, D.C., for the respondent.



THOMAS, Circuit Judge:

This petition for review requires us to decide whether a
rape conviction under Cal. Penal Code S 261 constitutes an
"aggravated felony" within the meaning ofS 101(a)(43)(A) of
the Immigration and Nationality Act ("INA"), 8 U.S.C.
S 1101(a)(43)(A). We conclude that it does.


Castro-Baez, a native and citizen of Mexico, entered the
United States in 1978 and has been a lawful permanent resi-
dent since 1989. In 1996, he was convicted of rape in viola-
tion of Cal. Penal Code S 261(a)(3). Two years later, on April
13, 1998, the INS charged Castro-Baez with being deportable
as an alien convicted of an aggravated felony underS 237(a)
(2)(A)(iii) of the INA, 8 U.S.C. S 1227(a)(2)(A)(iii). The
charge was based upon his state rape conviction. On October
2, 1998, an immigration judge found Castro-Baez's rape con-
viction to be a deportable offense, ordered him removed from
the United States, and pretermitted his application for discre-
tionary cancellation of removal.

Following an unsuccessful appeal to the Board of Immigra-
tion Appeals ("BIA"), Castro-Baez filed with this Court a
timely petition for review of the BIA's decision. He claims he


is not deportable because his state rape conviction does not
qualify as an "aggravated felony" within the meaning of
S 101(a)(43)(A) of the INA, 8 U.S.C. S 1101(a)(43)(A). We
have jurisdiction to decide whether Castro-Baez has commit-
ted a deportable offense, see Flores-Miramontes v. INS, _______
F.3d _______, No. 98-70924, 2000 WL 558024, at *2 (9th Cir.
May 9, 2000), but must dismiss his petition for lack of juris-
diction if we conclude that he has.2 See INA S 242(a)(2)(C),
8 U.S.C. S 1252(a)(2)(C). Because we conclude that Castro-
Baez's rape conviction qualifies as an aggravated felony
under the INA, we dismiss his petition for review.


Castro-Baez challenges the BIA's conclusion that a "rape"
under California state law constitutes the "aggravated felony"
of "rape" within the meaning of the INA. He claims that
because the elements of rape under the federal sexual abuse
laws are not necessarily coterminous with the elements of
rape under California state law, his rape conviction under Cal.
Penal Code S 261 cannot be a deportable offense. We reject
his argument because it is directly at odds with the plain lan-
guage of the INA and irreconcilable with our decision in
United States v. Baron-Medina, 187 F.3d 1144 (9th Cir.

[1] Under S 237(a)(2)(A)(iii) of the INA, "[a]ny alien who
is convicted of an aggravated felony at any time after admis-
sion is deportable." 8 U.S.C. S 1227(a)(2)(A)(iii). As used in
that section, an "aggravated felony" includes "rape." 8 U.S.C.
S 1101(a)(43)(A). Although the term "rape " itself is not fur-
ther defined by the INA, the term encompasses convictions
2 The permanent rules of the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996),
as amended, Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996), apply
to this case because removal proceedings were initiated after April 1,
1997. See Ratnam v. INS, 154 F.3d 990, 993 n.1 (9th Cir. 1998).


obtained under either federal or state law. Id . S 1101(a)(43)
("The term [aggravated felony] applies to an offense
described in this paragraph whether in violation of Federal or
State law[.]"). Thus, the definition of rape under federal law
simply has no bearing on whether Castro-Baez's state convic-
tion constitutes an "aggravated felony" for purposes of estab-
lishing his deportability.

Furthermore, we have already rejected Castro-Baez's argu-
ment in a case interpreting the very same statutory provision
at issue here. See Baron-Medina, 187 F.3d at 1146 ("As a
threshold matter, we reject any suggestion that the federal
sexual abuse laws, codified at Chapter 109A of the United
States Code, limit the class of state laws reached by the
term."). In Baron-Medina, we faced the issue of whether a
conviction under Cal. Penal Code S 288(a), which prohibits
lewd or lascivious acts on children under age 14, qualified as
"sexual abuse of a minor" and, hence, an "aggravated felony"
within the meaning of the INA. See id. We held that it did,
reasoning that because Congress had placed the crime of
"sexual abuse of a minor" in S 1101(a)(43)(A) "in the com-
pany of two other crimes -- murder and rape -- traditionally
proscribed by state law, without cross-referencing Chapter
109A or any other federal statute," Congress could not have
intended for federal law to govern the definition of that crime.
Id. We see no reason to apply a different analysis here. Thus,
the determination of whether Castro-Baez's state rape convic-
tion constitutes a deportable offense cannot depend on the ele-
ments of a distinct federal offense.

[2] Rather, as outlined in Baron-Medina, we must define
the term rape by "employing the ordinary, contemporary, and
common meaning" of that word and then determine whether
or not the conduct prohibited by Cal. Penal CodeS 261(a)(3)
falls within that common, everyday definition. Id. In so doing,
we "look solely to the statutory definition of the crime, not to
the name given to the offense or to the underlying circum-
stances of the predicate conviction." Id. Here, we conclude


that the conduct reached by S 261(a)(3) plainly and indisputa-
bly falls within the common usage of the term rape.

[3] Under California law, rape is defined as "an act of sex-
ual intercourse accomplished with a person not the spouse of
the perpetrator," under any of seven specifically enumerated
circumstances. Cal. Penal Code S 261(a)(1)-(7). Castro-Baez
was convicted under the third listed scenario, "[w]here a per-
son is prevented from resisting by any intoxicating or anes-
thetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known
by the accused." Id. S 261(a)(3). In ordinary usage, rape is
understood to include the act of engaging in non-consensual
sexual intercourse with a person whose ability to resist has
been substantially impaired by drugs or other intoxicants. See,
e.g., Black's Law Dictionary (6th ed. 1990) (defining rape as
the "act of sexual intercourse committed by a man with a
woman not his wife and without her consent, committed when
the woman's resistance is overcome by force or fear, or under
other prohibitive conditions"). Therefore, there is no doubt
that the conduct proscribed by S 261(a)(3) falls within the "or-
dinary, contemporary, and common" understanding of the
term rape. Consequently, Castro-Baez's offense rendered him
deportable as an alien convicted of an aggravated felony.


In sum, a rape conviction under Cal. Penal CodeS 261
qualifies as an aggravated felony for purposes of establishing
an alien's deportability under S 237(a)(2)(A)(iii) of the INA,
8 U.S.C. S 1227(a)(2)(A)(iii). Accordingly, we dismiss
Castro-Baez's petition for review for want of jurisdiction.