FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR MARTIN RODRIGUEZCASTELLON, AKA Hector Martin

Rodriguez,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-73239

Agency No.

A035-215-035

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 10, 2013—Pasadena, California

Filed October 22, 2013

Before: Diarmuid F. O’Scannlain, Richard A. Paez,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta
2 RODRIGUEZ-CASTELLON V. HOLDER

SUMMARY*

Immigration

The panel denied Hector Martin Rodriguez-Castellon’s

petition for review from the Board of Immigration Appeals’

decision finding him removable because his conviction under

California Penal Code § 288(c)(1) constituted a crime of

violence under 18 U.S.C. § 16(b).

The panel held that Rodriguez’s conviction for lewd and

lascivious acts upon a child is a categorical crime of violence

and therefore an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F). The panel held as an issue of first

impression in this circuit that a violation of CPC § 288(c)(1),

in the ordinary case, poses a substantial risk of the use of

physical force under § 16(b). 

COUNSEL

K. Lee Hartzler, San Diego, California, for Petitioner.

Kohsei Ugumori (argued); Tony West, Assistant Attorney

General; Emily Anne Radford, Assistant Director; Jennifer J.

Keeney, Senior Litigation Counsel,United States Department

of Justice, Civil Division, Washington, D.C., for Respondent.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RODRIGUEZ-CASTELLON V. HOLDER 3

OPINION

IKUTA, Circuit Judge:

Hector Martin Rodriguez-Castellon, a native and citizen

of Mexico and lawful permanent resident, petitions for review

of an order of the Board of Immigration Appeals (BIA)

affirming the finding that he was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). We hold that because Rodriguez’s state

crime of conviction, California Penal Code section 288(c)(1),

is a categorical crime of violence under 18 U.S.C. § 16(b),

Rodriguez is an alien convicted of an aggravated felony

within the meaning of 8 U.S.C. § 1101(a)(43)(F). Therefore,

we deny the petition.

I

In April 2005, Rodriguez (at that time, a 42-year-old man)

was charged with seventeen counts of lewd and lascivious

acts upon children during the period between 1992 and 1997,

in violation of various provisions of the California Penal

Code. As amended, Count 17 of the felony information

alleged that Rodriguez had sexual intercourse with a 15-yearold girl in violation of section 288(c)(1).1 Rodriguez pleaded

 

1

 Cal. Penal Code § 288(c)(1) states:

Any person who commits an act described in

subdivision (a) with the intent described in that

subdivision, and the victim is a child of 14 or 15 years,

and that person is at least 10 years older than the child,

is guilty of a public offense and shall be punished by

imprisonment in the state prison for one, two, or three

years, or by imprisonment in a county jail for not more

than one year. In determining whether the person is at
4 RODRIGUEZ-CASTELLON V. HOLDER

nolo contendere to Count 17 on June 7, 2005 and received a

six-year sentence.

In June 2009, the government served Rodriguez with a

Notice to Appear, which alleged that based on his conviction

under section 288(c)(1), he was subject to removal 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). In addition, the

government alleged that due to his section 288(c)(1)

conviction, Rodriguez was removable under 8 U.S.C.

§ 1227(a)(2)(E)(i) for a crime of child abuse.

At a hearing before an immigration judge (IJ) on

November 19, 2009, the IJ adopted the government’s factual

allegations and sustained all charges of removal. The IJ first

determined that a violation of section 288(c)(1) constituted a

crime of “sexual abuse of a minor” as defined in United

least 10 years older than the child, the difference in age

shall be measured from the birth date of the person to

the birth date of the child.

Cal. Penal Code § 288(a) provides, in turn:

(a) Except as provided in subdivision (i), any person

who willfully and lewdly commits any lewd or

lascivious act, including any of the acts constituting

other crimes provided for in Part 1, upon or with the

body, or any part or member thereof, of a child who is

under the age of 14 years, with the intent of arousing,

appealing to, or gratifying the lust, passions, or sexual

desires of that person or the child, is guilty of a felony

and shall be punished by imprisonment in the state

prison for three, six, or eight years.
RODRIGUEZ-CASTELLON V. HOLDER 5

States v. Medina-Villa, 567 F.3d 507, 511–12 (9th Cir. 2009). 

Further, the IJ determined that a violation of section 288(c)(1)

was also a “crime of violence” as defined in 8 U.S.C.

§ 1101(a)(43)(F), because the nature of the offense, “where

the perpetrator, motivated by a desire for sexual arousal and

in a superior physical position, engages in physical contact

with the child victim at least ten years his junior” is such that

it inherently involves “a substantial risk that physical force

against the person . . . of another may be used in the course of

committing the offense.” Finally, relying on the statutory

definition of “child abuse” as meaning “the physical or

mental injury, sexual abuse or exploitation, or negligent

treatment of a child,” 18 U.S.C. § 3509(a)(3), and the

definition of “sexual abuse” as including the “employment,

use, persuasion, inducement, enticement, or coercion of a

child to engage in . . . sexually explicit conduct,” 18 U.S.C.

§ 3509(a)(8), the IJ determined that a violation of section

288(c)(1) constituted a crime of child abuse.

Rodriguez appealed to the BIA primarily on the ground

that the government had failed to properly certify the

documents comprising his record of conviction. On October

20, 2010, the BIA dismissed the appeal. The BIA rejected

Rodriguez’s certification argument in a footnote, and focused

instead on an unbriefed issue: whether a violation of section

288(c)(1) constituted a crime of “sexual abuse of a minor.” 

Relying on the newly decided United States v. Castro,

607 F.3d 566 (9th Cir. 2010), in which we held that section

288(c)(1) was not categorically sexual abuse of a minor, the

BIA concluded that the IJ erred in sustaining removability on

that ground. Nevertheless, the BIA upheld the IJ’s ruling on

one of the alternative grounds, that section 288(c)(1) was a

categorical crime of violence under 18 U.S.C. § 16(b). The

BIA reasoned that “[w]henever an adult engages in a lewd
6 RODRIGUEZ-CASTELLON V. HOLDER

and lascivious act with a child at least 10 years younger, there

is a substantial risk that the child will take exception and, as

a result, cause the adult to use force to further effectuate the

conduct or to act in self-defense.” The BIA did not consider

the third basis for the IJ’s determination, that Rodriguez

committed a crime of child abuse. Rodriguez timely filed this

petition for review, appealing only the BIA’s ruling that

section 288(c)(1) was a categorical crime of violence under

18 U.S.C. § 16(b).

II

We have jurisdiction over this appeal under 8 U.S.C.

§ 1252(d). Although we lack “jurisdiction to review any final

order of removal against an alien who is removable by reason

of having committed” an aggravated felony (among other

offenses), 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction

over “constitutional claims or questions of law,” 8 U.S.C.

§ 1252(d), which includes the question whether a state crime

of conviction is an aggravated felony. While we generally do

not have jurisdiction to review unexhausted claims, we may

review any issue addressed on the merits by the BIA,

regardless whether it was raised to the BIA by the petitioner.

Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005). 

Accordingly, we have jurisdiction to review the BIA’s

determination that Rodriguez’s prior state conviction was a

crime of violence, even though Rodriguez did not raise this

question to the BIA.

We review questions of law de novo. We generally defer

to “the BIA’s interpretation of the statutes and regulations it

is charged with administering,” Fregozo v. Holder, 576 F.3d

1030, 1034 (9th Cir. 2009), but do not defer to the BIA’s

interpretation of state or federal criminal statutes, because the
RODRIGUEZ-CASTELLON V. HOLDER 7

BIA does not administer such statutes or have any special

expertise regarding their meaning. See Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1126 n.7 (9th Cir. 2006) (en banc);

see also Fregozo, 576 F.3d at 1034. Here, § 1101(a)(43)(F)

provides that the term “crime of violence” has the definition

set forth in 18 U.S.C. § 16,2 which is a federal criminal

statute. Accordingly, we do not defer to the BIA’s

interpretation of § 16.

III

On appeal, Rodriguez argues that his conviction under

section 288(c)(1) is not a conviction for a “crime of

violence,” under 18 U.S.C. § 16, and therefore is not an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F). We

begin by considering the relevant legal background.

A

An alien “who is convicted of an aggravated felony at any

time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). The government has the burden of

 

2

 18 U.S.C. § 16 states in full:

The term “crime of violence” means—

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used

in the course of committing the offense.
8 RODRIGUEZ-CASTELLON V. HOLDER

proving that a particular offense qualifies as an aggravated

felony. See Salazar-Luviano v. Mukasey, 551 F.3d 857, 861

(9th Cir. 2008). The Immigration and Nationality Act (INA)

defines “aggravated felony” to mean (among other things) “a

crime of violence,” as defined in 18 U.S.C. § 16, “for which

the term of imprisonment [is] at least one year.” 8 U.S.C.

§ 1101(a)(43)(F).

In order to determine whether a conviction under section

288(c)(1) qualifies as a crime of violence as defined in

18 U.S.C. § 16, we apply the categorical approach set forth in

Taylor v. United States, 495 U.S. 575, 600–02 (1990). See

Nijhawan v. Holder, 557 U.S. 29, 33–38 (2009) (applying the

categorical approach in the context of immigration offenses). 

Under Taylor, we first “compare the elements of the statute

of conviction with a federal definition of the crime to

determine whether conduct proscribed by the statute is

broader than the generic federal definition.” QuinteroSalazar v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007). In

identifying the elements of the statute of conviction, “we

consider not only the language of the state statute, but also the

interpretation of that language in judicial opinions.” 

Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054 (9th Cir.

2010) (internal quotation marks omitted). If the federal

generic offense “is not a separate crime at common law but

rather a classification of other crimes,” such as crimes

involving moral turpitude, or here, crimes of violence, “we

must also compare the crime of conviction with crimes we

have previously determined to” fall into that particular

classification of crimes. Cerezo v. Mukasey, 512 F.3d 1163,

1166 (9th Cir. 2008) (citing Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1075 (9th Cir. 2007) (en banc) (Reinhardt, J.,

concurring for the majority) (internal quotation marks and

citations omitted), overruled on other grounds by United
RODRIGUEZ-CASTELLON V. HOLDER 9

States v. Aguila-Montes de Oca, 655 F.3d 915, 916 (9th Cir.

2011) (en banc)).3

Under this categorical approach, if the state statute of

conviction criminalizes more conduct than the federal generic

offense, then the state offense is not categorically included in

the definition of the federal generic offense. United States v.

Velasquez-Bosque, 601 F.3d 955, 958 (9th Cir. 2010). A state

crime of conviction qualifies as a generic federal offense “if

and only if the full range of conduct covered” by the state

criminal statute is included in the relevant definition of the

federal offense. Barragan-Lopez v. Holder, 705 F.3d 1112,

1115 (9th Cir. 2013) (quoting Penuliar v. Mukasey, 528 F.3d

603, 608 (9th Cir. 2008)). If the state statute is divisible, and

the full range of conduct in the state statute is not included in

the federal offense, we may use the modified categorical

approach so long as one of the crimes included in the statute

is a categorical match for the federal generic offense. See

Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)

(stating that “the modified approach merely helps implement

the categorical approach when a defendant was convicted of

violating a divisible statute.”). Under the modified approach,

we examine certain judicial records to determine whether the

defendant was necessarily convicted of the elements of a

crime listed in a divisible statute that is a federal generic

offense. Shepard v. United States, 544 U.S. 13, 20 (2005).

3 Aguila-Montes de Oca was subsequently abrogated by Descamps v.

United States, 133 S. Ct. 2276 (2013).
10 RODRIGUEZ-CASTELLON V. HOLDER

B

In order to apply this categorical approach, we must first

determine the elements or definition of the federal generic

offense. Under 18 U.S.C. § 16, the phrase “crime of

violence” has two meanings. First, under § 16(a), a state

crime of conviction is a crime of violence if it “has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another.” Because the

statute does not define the term “physical force,” we give the

term its ordinary meaning, which in this context is “violent

force” or “force capable of causing physical pain or injury to

another person.” Johnson v. United States, 559 U.S. 133, 140

(2010) (interpreting the phrase “physical force” in the context

of determining whether a state statute of conviction

constitutes a “violent felony” under the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(1), which is defined as a

felony having “as an element the use . . . of physical force

against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i)). 

Second, even if the state crime does not include one of the

elements listed in § 16(a), it is a “crime of violence” under

§ 16(b) if it is: (i) a felony; and (ii) “by its nature, involves a

substantial risk that physical force against the person or

property of another may be used in the course of committing

the offense.” 18 U.S.C. § 16(b). The Supreme Court has

explained that § 16(b) criminalizes conduct that “naturally

involve[s] a person acting in disregard of the risk that

physical force might be used against another in committing

an offense.” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).

In determining whether a particular state crime presents

a substantial risk of physical force for purposes of § 16(b), we

must determine “whether the conduct covered by the crime

presents the requisite risk of injury in the ordinary case.” 
RODRIGUEZ-CASTELLON V. HOLDER 11

United States v. Ramos-Medina, 706 F.3d 932, 938 (9th Cir.

2012) (internal quotation marks omitted); see also DelgadoHernandez v. Holder, 697 F.3d 1125, 1128 (9th Cir. 2012)

(holding that in determining whether a state crime presents a

substantial risk that physical force may be used, “we inquire

whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents such a risk” (quoting

James v. United States, 550 U.S. 192, 208 (2007) (internal

quotations omitted)); Barragan-Lopez, 705 F.3d at 1115

(same). Our inquiry is thus not directed to conduct “at the

margins of the statute,” Delgado-Hernandez, 697 F.3d at

1129, but rather to a “usual or ordinary” violation. RamosMedina, 706 F.3d at 938 (emphasis removed). Accordingly,

we have held that a state crime may categorically be a crime

of violence under § 16(b) even though it is possible to violate

the state statute “without the use of any physical force.” 

United States v. Sandoval-Orellana, 714 F.3d 1174, 1179 (9th

Cir. 2013) (holding that a statute prohibiting specified sexual

abuse is the type of felony that, by its nature, creates a

substantial risk of physical force, even though some

violations may occur through use of psychological, rather

than physical coercion); see also United States v. GalvanRodriguez, 169 F.3d 217, 219 (5th Cir. 1999) (“[W]hen

analyzing the operative phrase ‘substantial risk,’ it is not

necessary that the risk must occur in every instance; rather a

substantial risk requires a strong probability that the event, in

this case the application of physical force during the

commission of the crime, will occur.”) (internal quotation

marks and brackets omitted).

Further, a state crime may categorically be a crime of

violence for purposes of § 16(b) even when a state court has,

in some cases, construed the statute as requiring something

less than violent force. Thus, in considering whether a
12 RODRIGUEZ-CASTELLON V. HOLDER

violation of section 207 of the California Penal Code (which

prohibits a person from kidnapping another “forcibly, or by

any other means of instilling fear”) was a categorical crime of

violence, we noted the California Supreme Court’s ruling, in

construing this section, that “‘the only force required to

kidnap an unresisting infant or child is the amount necessary

to move the victim a substantial distance.’” DelgadoHernandez, 697 F.3d at 1129 (quoting In re Michele D.,

29 Cal. 4th 600, 612 (2002)). The state court’s ruling was

later codified by the state legislature and added to section

207. Id. While acknowledging that “merely picking up and

carrying away an infant, without any other conflict, does not

entail a substantial risk of force as the term is used in § 16,”

we held that the state court’s interpretation of section 207

“does not describe an ordinary case” of the offense conduct;

“rather it merely sets a lower limit on the force required.” Id.

(emphasis in original). Because kidnapping presented a

substantial risk of force in the ordinary case, we concluded

that a violation of the state statute constituted a crime of

violence for purposes of § 16(b). Id. at 1133.

In summary, in order for a state crime of conviction to

constitute a “crime of violence” for purposes of § 16, it must

either include as an element “the use, attempted use, or

threatened use of physical force against the person or

property of another,” § 16(a), or be a felony which “by its

nature, involves a substantial risk that physical force against

the person or property of another may be used in the course

of committing the offense,” § 16(b). To determine whether

a state crime of conviction “involves a substantial risk” of the

use of force, we must determine whether the conduct covered

by that crime raises a substantial risk of physical force “in the

ordinary case,” even though, at the margin, some violations

of the state statute may not raise such a risk. In determining
RODRIGUEZ-CASTELLON V. HOLDER 13

whether a particular state crime meets this criteria, we may

compare the state crime of conviction to other crimes that we

or other courts have previously categorized as crimes of

violence under § 16 or other statutes using a similar

definition.4

C

We now turn to the state crime of conviction, section

288(c)(1), and compare its elements with the federal

definition of § 16. Section 288(c)(1) criminalizes the

following conduct: (1) willfully committing any lewd or

lascivious act; (2) upon or with any part of the body of a child

4 Federal law provides a range of definitions for the term “crime of

violence.” Some definitions incorporate elements of both §§ 16(a) and

16(b). See, e.g., U.S.S.G. § 4B1.2(a) (defining a crime of violence as a

crime punishable by more than a year imprisonment that “has as an

element the use, attempted use, or threatened use of physical force against

the person of another, or . . . is burglary of a dwelling, arson, or extortion,

involves the use of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another”); 18 U.S.C.

§ 924(e)(2)(B)(ii) (giving the term “violent felony” the same definition as

“crime of violence” in § 4B1.2(a)(2)). In other cases, the federal

definition is more similar to the definition of “crime of violence” in

§ 16(a), rather than to that in § 16(b). See U.S.S.G. § 2L1.2 cmt. 1(B)(iii)

(defining a “crime of violence” as one of a number of listed offenses,

including sexual abuse of a minor, statutory rape, or any other offense

“that has as an element the use, attempted use, or threatened use of

physical force against the person of another.”). Because “[w]hat may be

a predicate offense under one approach [to defining ‘crime of violence’]

is not necessarily a predicate offense under another approach,” LopezCardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011), we must use

caution in relying on cases construing other federal definitions of “crime

of violence.”
14 RODRIGUEZ-CASTELLON V. HOLDER

who is 14 or 15 years old; (3) with the intent of arousing,

appealing to, or gratifying the lust, passions, or sexual desires

of the defendant or the child; (4) when the defendant is at

least ten years older than the child. Castro, 607 F.3d at 568.

Section 288(c)(1) is not categorically a crime of violence

as defined in § 16(a), because it does not include as an

element “the use, attempted use, or threatened use of physical

force against the person or property of another.” § 16(a). We

turn then to the question whether section 288(c)(1) is

categorically a crime of violence as defined in § 16(b). There

is no dispute that a violation of section 288(c)(1) is a felony

under California law, Castro, 607 F.3d at 567, and so we

must determine, as an issue of first impression in this circuit,

whether a violation of section 288(c)(1), in the ordinary case,

poses a substantial risk of the use of physical force under

§ 16(b).

To characterize an ordinary case “in the absence of

detailed statistical information that is unlikely to be

available,” United States v. Sonnenberg, 628 F.3d 361, 366

(7th Cir. 2010), “the best we can do is use common sense and

experience,” id., and look to persuasive authority from other

courts that have considered whether similar statutes qualify

as crimes of violence for purposes of § 16(b), as we do in

cases analyzing crimes involving moral turpitude. See

Cerezo, 512 F.3d at 1166; see also Delgado-Hernandez,

697 F.3d at 1129–30 (looking to California cases and out-ofcircuit authority to evaluate whether attempted kidnapping

was a categorical crime of violence under § 16(b)); Prakash

v. Holder, 579 F.3d 1033, 1036 (9th Cir. 2009) (adopting the

reasoning of a Third Circuit case in deciding whether

solicitation to commit murder was a crime of violence under

§ 16(b)). Based on such a review, set out in detail below, we
RODRIGUEZ-CASTELLON V. HOLDER 15

conclude that the weight of authority supports the conclusion

that the sort of sexual conduct described in section 288(c)(1)

raises a substantial risk that an adult may use physical force

against the 14- or 15-year-old child in the ordinary case.

Although we have not yet considered whether section

288(c)(1) or anotherstate statute criminalizing sexual conduct

by an older adult with children who are 14 or 15 years old

constitutes a “crime of violence” as defined in § 16(b), other

circuits considering this issue have generally concluded that

such state crimes by their nature create a substantial risk of

physical force. See, e.g., United States v. Austin, 426 F.3d

1266, 1275 (10th Cir. 2005) (recognizing the “general

consensus that sexual abuse in touching a minor inherently,

or by its nature, constitutes a crime of violence [under § 16]

because it involves a substantial risk of physical force”). The

Eleventh Circuit’s decision in Ramsey v. I.N.S., 55 F.3d 580

(11th Cir. 1995), is directly on point. In Ramsey, a petitioner

sought review of the BIA’s determination that he was

deportable because his state conviction for attempted lewd

assault was a “crime of violence” for purposes of § 16(b), and

therefore constituted an aggravated felony. The state crime

of conviction provided that any person who “[h]andles,

fondles, or assaults any child under the age of 16 years in a

lewd, lascivious, or indecent manner . . . without committing

the crime of sexual battery, commits a felony of the second

degree.” Id. at 583. The statute also provided that the

victim’s consent was not a defense to the crime. Id. While

acknowledging that a violation of this statute could be

committed “without the use of physical force,” the court

concluded that the offense was a felony “which involves a

substantial risk that physical force may be used against the

victim in the course of committing the offense.” In reaching

this conclusion, Ramsey relied on United States v. Reyes-
16 RODRIGUEZ-CASTELLON V. HOLDER

Castro, 13 F.3d 377 (10th Cir. 1993) and United States v.

Rodriguez, 979 F.2d 138 (8th Cir. 1992). In Reyes-Castro,

the Tenth Circuit held that a state crime of conviction

(involving an adult touching the anus, buttocks, or genitalia

of a female child younger than 14 years) poses a “substantial

risk” of the use of physical force for purposes of § 16(b),

because “when an older person attempts to sexually touch a

child . . . there is always a substantial risk that physical force

will be used to ensure the child’s compliance.” 13 F.3d at

379; see also Rodriguez, 979 F.2d at 141 (holding that a state

statute making it unlawful for a person 18 or older to sexually

touch a child or solicit a child to engage in a sex act (among

other things) is inherently an aggravated felony for purposes

of U.S.S.G. § 2L1.2(b)(2), which at that time defined

“aggravated felony” as any crime of violence as defined in

18 U.S.C. § 16).5

United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.

1996), followed much the same reasoning. Here, the Fifth

Circuit determined that a state statute making it a crime for an

adult to “engage[] in sexual contact” “with a child younger

than 17 years and not his spouse” was a “crime of violence”

as defined in § 16(b), because the offense inherently involved

a substantial risk that physical force may be used.6Id. at 421

5

In 2001, the Sentencing Commission amended § 2L1.2 to eliminate the

reference to § 16.

6 Although the Fifth Circuit was considering this issue for purposes of

sentencing enhancement under § 2L1.2, at the time of the opinion that

guideline provision incorporated the definition of “crime of violence” in

§ 16(b).
RODRIGUEZ-CASTELLON V. HOLDER 17

n.3 (citing Tex. Penal Code § 21.11(a)(1)). The court

reasoned that it was “obvious that such crimes typically occur

in close quarters, and are generally perpetrated by an adult

upon a victim who is not only smaller, weaker, and less

experienced, but is also generally susceptible to acceding to

the coercive power of adult authority figures.” Id. at 422. 

Because “[a] child has very few, if any, resources to deter the

use of physical force by an adult intent on touching the

child,” the court concluded that “there is a significant

likelihood that physical force may be used to perpetrate the

crime.” Id.

The Second Circuit reached a similar conclusion in Costa

v. Holder, 611 F.3d 110 (2d Cir. 2010). In Costa, the court

considered a state statute providing that “a person is guilty of

sexual assault in the second degree when such person engages

in sexual intercourse with another person and: (1) Such other

person is thirteen years of age or older but under sixteen years

of age and the actor is more than three years older than such

other person.” Id. at 114 n.3 (citing Conn. Gen. Stat. § 53a71(a)). The Second Circuit determined that this offense was

a “crime of violence” for purposes of § 16, citing the

reasoning in Rodriguez. See id. at 115. Further, the court

endorsed and applied the reasoning in Reyes-Castro that

“when an older person attempts to sexually touch a child . . .

there is always a substantial risk that physical force will be

used to ensure the child’s compliance.” Id. at 116. The court

explained that “the risk of the use of force is inherent in each

of the offenses set forth in the statute,” even though a

defendant could be convicted of the state offense by engaging

in “consensual sexual intercourse” without force. Id. at 115;

see also Chery v. Ashcroft, 347 F.3d 404, 409 (2d Cir. 2003)

(endorsing the reasoning in Reyes-Castro).
18 RODRIGUEZ-CASTELLON V. HOLDER

Courts have likewise determined that state crimes

involving sexual contact between children and older adults

give rise to a risk of force and were therefore crimes of

violence for purposes of U.S.S.G. § 4B1.2, which requires a

showing that the offense “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 

See United States v. Curtis, 481 F.3d 836, 838–39 (D.C. Cir.

2007) (noting that it is “universally recognized” that sexual

offenses against children are crimes of violence under

U.S.S.G. § 4B1.2 “because of the substantial likelihood that

the perpetrator will use physical force to ensure the child’s

compliance” with his demands).7In United States v. Pierce,

278 F.3d 282, 289–90 (4th Cir. 2002), abrogated in part by

Begay v. United States, 553 U.S. 137 (2008), for instance, the

court considered whether a state statute described a crime of

violence for purposes of U.S.S.G. § 4B1.2, which at the time

simply required a court to analyze whether the state crime

“otherwise involves conduct that presents a potential risk of

physical injury to another.” The state statute at issue

provided that it was a felony to “[w]illfully commit . . . any

lewd or lascivious act upon or with the body or any part or

member of the body of any child of either sex under the age

 

7

 Although the definition of “crime of violence” in § 4B1.2 is different

from that in § 16(b), courts have frequently relied on opinions analyzing

U.S.S.G. § 4B1.2 in considering whether a state crime constitutes a “crime

of violence” for purposes of § 16(b). See, e.g., Velazquez-Overa, 100 F.3d

at 421 n.4 (relying on our decision in United States v. Wood, 52 F.3d 272,

275 (9th Cir. 1995), construing U.S.S.G. § 4B1.2, as reinforcing the

conclusion “that offenses involving physical sexual abuse of children are

acts of violence” for purposes § 16(b), even though a “crime of violence”

under § 4B1.2 “differs somewhat” from that in § 16); see also United

States v. Coronado-Cervantes, 154 F.3d 1242, 1243 (10th Cir. 1998)

(holding that a case construing U.S.S.G. § 4B1.2 provided persuasive

authority for construing § 16(b)).
RODRIGUEZ-CASTELLON V. HOLDER 19

of 16 years” if the perpetrator was at least five years older

than the child. Id. at 282 (citing N.C. Gen. Stat. § 14-

202.1(a)). Although the state supreme court had defined the

statute as not requiring any physical touching, the Fourth

Circuit determined there was a risk of physical injury,

because (among other reasons) “[w]hen a child is the victim

of adult conduct, force can be inferred.” Id. at 290. In

reaching this conclusion, the Fourth Circuit asserted that it

joined “every other circuit that has considered the question.” 

Id. at 291 (citing cases); see also United States v. Scudder,

648 F.3d 630, 633–34 (8th Cir. 2011) (holding that fondling

or touching a child between 12 and 16 is crime of violence for

purposes of 18 U.S.C. § 924(e)(2)(B)(ii), which uses the same

definition of the term as U.S.S.G. § 4B1.2). We have reached

a similar conclusion in analyzing a state statute that

criminalized sexual offenses involving younger children. See

United States v. Wood, 52 F.3d 272, 275 (9th Cir. 1995)

(holding that a statute involving sexual contact with children

under 14 involved a “serious potential risk of physical injury”

under the catch-all provision of U.S.S.G. § 4B1.2, because

“the risk of violence is implicit in the size, age and authority

position of the adult in dealing with a child”).

These concerns are amplified where the perpetrator is

significantly older than the victim. In United States v. AlasCastro, 184 F.3d 812, 813 (8th Cir. 1999), for example, the

Eighth Circuit concluded that a statute prohibiting adults over

19 from “subject[ing] another person fourteen years of age or

younger to sexual contact” was a crime of violence as defined

by § 16(b) because “this type of contact between parties of

differing physical and emotional maturitycarries a substantial

risk that physical force . . . may be used in the course of

committing the offense.” (internal quotation marks omitted). 

When the state statute does not specify the perpetrator’s age,
20 RODRIGUEZ-CASTELLON V. HOLDER

the analysis may be different. For instance, in Xiong v. I.N.S.,

the Seventh Circuit considered a case involving an 18-yearold man who had been convicted of engaging in consensual

sex with his 15-year-old girlfriend. 173 F.3d 601, 603, 607

(7th Cir. 1999). The court concluded that the state crime of

conviction, which prohibited “sexual contact or sexual

intercourse with a person who has not attained the age of 16

years,” id. at 603, but did not specify the age of the

perpetrator, was not a crime of violence for purposes of

§ 16(b), id. at 607. In reaching this conclusion, the court

reasoned that “the conduct of which [the defendant] was

convicted consisted of consensual sex between a boyfriend

and his fifteen year old girlfriend,” and therefore “[a]bsent a

substantial age difference, this conduct did not, ‘by its nature,

involve a substantial risk of physical force.’” Id. (internal

alterations omitted). The court’s proviso suggests that when

a “substantial age difference” between the perpetrator and the

victim is an element of the state crime of conviction, the court

would reach a different conclusion. See id. at 607.8

Our decision in United States v. Pereira-Salmeron,

337 F.3d 1148 (9th Cir. 2003), though not directly on point,

is consistent with the reasoning of these circuits. PereiraSalmeron considered whether a prior felony conviction under

state law for “carnally know[ing], without the use of force, a

child thirteen years of age or older but under fifteen years of

age” constituted a crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii) of the Guidelines, which at that time

8 Further, because the Seventh Circuit did not consider whether the

conduct covered by the statute presents a risk of injury “in the ordinary

case,” but noted merely that the statute encompassed a statutory rape

offense, Xiong, 173 F.3d at 605, its analysis is not directly applicable in

our circuit.
RODRIGUEZ-CASTELLON V. HOLDER 21

included “forcible sex offenses (including sexual abuse of a

minor).” Id. at 1150–51 (emphasis omitted).9 Even though

the state crime “explicitly addresse[d] conduct undertaken

‘without the use of force,’” id. at 1151 (citing Va. Code

§ 18.2-63), we concluded that “sexual contact with a minor

inherently presents a risk of force sufficient to characterize

such misconduct as a ‘crime of violence’ under the

Sentencing Guidelines.” Id. at 1153–54. In so holding, we

quoted with approval the Fifth Circuit’s explanation that

because sexual offenses involving minors “typically occur in

close quarters, and are generally perpetrated by an adult upon

a victim who is not only smaller, weaker, and less

experienced, but is also generally susceptible to acceding to

the coercive power of adult authority figures . . . . In such

circumstances, there is a significant likelihood that physical

force may be used to perpetrate the crime.” Id. (quoting

Velazquez-Overa, 100 F.3d at 418). Accordingly, we

concluded that because “sexual contact with a minor

9 The Sentencing Guidelines defined “crime of violence” in the

Application Notes to § 2L1.2, which at the time provided:

Crime of violence-

(I) means an offense under federal, state, or local law

that has as an element the use, attempted use, or

threatened use of force against the person of another;

and

(II) includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including

sexual abuse of a minor), robbery, arson, extortion,

extortionate extension of credit, and burglary of a

dwelling.

U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (2002).
22 RODRIGUEZ-CASTELLON V. HOLDER

inherently presents a risk of force,” a state crime prohibiting

a “sexual offense against a minor may constitute a crime of

violence for sentencing purposes even though an element of

force—actual, attempted, or threatened—is not required.” Id.

at 1153. Although Pereira-Salmeron considered a state crime

protecting 14-year-olds, while section 288(c)(1) protects 14-

and 15-year-olds, we find this reasoning equally applicable to

children who are 15 years of age.

Our review thus indicates that courts have generally

classified state crimes analogous to section 288(c)(1) as

crimes that present “a substantial risk that physical force will

be used to ensure the child’s compliance.” Velazquez-Overa,

100 F.3d at 422. These cases emphasize that older adults

may impose unwanted sexual contact on children by taking

advantage of their lesser size, strength, and maturity. Under

this reasoning, section 288(c)(1) raises the substantial risk

that a much older perpetrator (age 24 or 25 years) will use

force to commit sexual acts “upon or with the body” of a

child (age 14 or 15 years) if the child does not comply with

the adult’s demands. We agree with this reasoning, and

therefore conclude that section 288(c)(1) is a felony that

raises a substantial risk of the use of force in the ordinary

case.

D

Rodriguez contends that this conclusion is erroneous for

two reasons. First, he asserts that section 288(c)(1) is not

analogous to the state crimes of conviction considered above,

because it may be violated by consensual conduct. Rodriguez

relies on Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.

2006), where we held that a California statute criminalizing

“an act of unlawful sexual intercourse with a minor [i.e., a
RODRIGUEZ-CASTELLON V. HOLDER 23

person under 18 years of age] who is more than three years

younger than the perpetrator,” id. at 1049, did not constitute

a crime of violence under § 16(b) because it could involve

“consensual sexual intercourse with a minor between the ages

of seventeen and eighteen,” id. at 1051.

Valencia is not on point here for several reasons. The

state crime of conviction in Valencia, California Penal Code

section 261.5(c), criminalizes “statutory rape” situations that

can involve minors “one day shy of eighteen,” id. at 1052,

engaging in consensual sexual conduct with adults who are

only three years older. We have previously stated that the

risks associated with sexual acts committed with older

adolescents are different from those associated with

adolescents between 14 and 16 years old. See EstradaEspinoza v. Mukasey, 546 F.3d 1147, 1154 (9th Cir. 2008)

(en banc) (“We and our sister circuits have been careful on

other occasions to distinguish laws governing the sexual

behavior of younger teenagers from those governing the

behavior of 16- and 17-year-olds” and acknowledging “a

significant difference between sexual relations with someone

under 16 and sexual relations with someone between the ages

of 16 and 18”), overruled on other grounds by Aguila-Montes

de Oca, 655 F.3d at 928.10 We have not extended Valencia’s

logic to 14- or 15-year-olds.

Despite this key distinction, Rodriguez asserts that we are

bound to extend the reasoning in Valencia to 14- and 15-yearolds given our decision in United States v. Castro. We

disagree. In Castro, we held that a violation of section

288(c)(1) did not constitute the federal generic offense of

“sexual abuse of a minor” because “sexual conduct with a 15-

 

10 See supra note 3.
24 RODRIGUEZ-CASTELLON V. HOLDER

year-old child is not per se abusive.” 607 F.3d at 569. In

applying the categorical approach in this context, we look to

state cases construing the statute at issue and consider

whether the statute can be violated by conduct that is not

“sexual,” or does not constitute “abuse.” See id. at 568–69;

see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007) (holding that a court must find a “realistic probability

. . . that the State would apply its statute to conduct that falls

outside the generic definition of a crime” in order to find that

a “state statute creates a crime outside the generic definition

of a listed crime in a federal statute.”). In United States v.

Baza-Martinez, for instance, we held that a state statute

prohibiting “indecent liberties” with a child under 16 was not

categorically “sexual abuse of a minor” for purposes of

U.S.S.G. § 2L1.2(b)(1)(A) because at least some of the

conduct proscribed by the statute did not constitute abuse. 

464 F.3d 1010, 1017 (9th Cir. 2006). In reaching this

conclusion, we relied on a state case holding that an adult

who filmed a minor undressing without her knowledge

violated the statute, even though the minor did not know

about the film until after she was 21, and therefore “was not

psychologically harmed until she was no longer a minor.” Id.

But this framework for determining whether a state crime is

categorically “sexual abuse of a minor” does not guide our

analysis of whether a state crime poses a substantial risk of

physical force. In this latter context, our task is to decide

whether such a risk is present in the ordinary case, even if

there may be situations, on the margin, where no risk is

present because of the child’s consent. See Ramos-Medina,

706 F.3d at 938. Said otherwise, a court considering whether

a state statute meets the definition of “sexual abuse of a

minor” must consider cases “at the margins of the statute,”

but a court performing an analysis of “substantial risk” under

§ 16(b) may not do so. Delgado-Hernandez, 697 F.3d at
RODRIGUEZ-CASTELLON V. HOLDER 25

1129. Therefore, Castro does not answer the fundamental

question here, which is whether, in the ordinary case, sexual

conduct by a 24- or 25-year-old adult with a 14- or 15-yearold child poses a substantial risk of force.

Rodriguez’s argument that Valencia controls our analysis

here also neglects an important element of section 288(c)(1):

the perpetrator must be at least 10 years older than the victim. 

The statute at issue in Valencia, by contrast, involved only a

three-year age difference, indicating that the statute was

intended to cover consensual “statutory rape” crimes, which

are distinct from those crimes covered by section 288(c)(1). 

See Valencia, 439 F.3d at 1053. Indeed, California courts

have noted that the state legislature included a ten-year age

difference between the perpetrator and the victim in section

288(c)(1) preciselyto avoid prosecutions for “sexual conduct

short of intercourse between consenting teenagers,” and to

aim only at “protect[ing] 14[-] and 15-year-olds from

predatory older adults.” People v. Paz, 80 Cal. App. 4th 293,

296–97 (2000). Because older adults may use their position

of authority or physical superiority to compel younger

adolescents to engage in unwanted sexual conduct, there is a

far greater risk of force when an adult more than ten years

older preys on a 14- or 15-year-old than when a young

adolescent engages in sexual conduct with someone just a

few years older. See Valencia, 439 F.3d at 1051 (suggesting

that the physical and emotional disparities between a younger

child and an older adult may raise different concerns than

those associated with a statutory rape case involving parties

closer in age); see also United States v. Cadieux, 500 F.3d 37,

47 (1st Cir. 2007) (noting that the defendant was in his mid-
26 RODRIGUEZ-CASTELLON V. HOLDER

twenties when he assaulted a 14-year-old, and that “[t]his

chronological age gap falls squarely within the sexual

touching caselaw holding that age differences of this

magnitude necessarily create a serious potential risk of

physical injury to another”).

Second, Rodriguez argues that because California courts

have held that section 288(c)(1) may be violated without any

physical contact between the perpetrator and the victim, the

statute does not categorically pose a substantial risk of

physical force. In making this argument, Rodriguez points to

the California cases which have held that a violation of

section 288(a) or (c)(1) could occur when the defendant, with

the requisite sexual intent, orders the victim to engage in

sexual touching of the victim’s own body. See, e.g., People

v. Mickle, 54 Cal. 3d 140, 176 (1991) (acknowledging that

section 288 may be violated where defendant instructed

victim to disrobe); People v. Austin, 111 Cal. App. 3d 110,

114 (1980) (holding that there must be touching to violate

section 288, but it could be done by the child victim “on its

own person providing such touching was at the instigation of

a person who had the required specific intent”) (initial

capitals omitted).11

11 Rodriguez also cites People v. Crabtree, 169 Cal. App. 4th 1293

(2009), which upheld a conviction under section 288(c)(1) of a defendant

who had engaged in sexually explicit internet chat with a child under 15

years old. But the relevant question in that case was simply whether the

victim was younger than 16; the court did not address whether such

conduct was sufficient to violate the statute. Id. at 1323–24.
RODRIGUEZ-CASTELLON V. HOLDER 27

In our view, these cases are “at the margin” of violations

of section 288, and merely set the “lower limit” as to the type

of contact required; they tell us little about whether the sort

of sexual conduct proscribed by section 288(c)(1) inherently

poses a substantial risk of force in an ordinary case.12See

Delgado-Hernandez, 697 F.3d at 1129 (concluding that

kidnapping in violation ofsection 207 of the California Penal

Code was a crime of violence for purposes of § 16(b), even

though the state court had held the statute could be violated

by merely moving an unresisting infant). Although we have

not undertaken an empirical analysis, our “common sense and

experience,” Sonnenberg, 628 F.3d at 366, and our review of

authority from other courts, leads to the conclusion that a

violation of section 288(c)(1) in the ordinary case (as

described in many California opinions) involves the sort of

12 Indeed, a number of courts have indicated that sexual encounters

between adults and children frequently escalate to more severe offenses

even when the adult does not initially touch the child. As the Eleventh

Circuit stated in United States v. Searcy, 418 F.3d 1193 (11th Cir. 2005),

an adult’s attempt to entice a minor to engage in sexual activity always

“presents the possibility of an encounter that could result in ‘a seriousrisk

of physical injury’” or a seriousrisk of physical force. See id. at 1197; see

also People v. Memro, 11Cal. 4th 786, 871–72 (1995) (defendant brought

7-year-old victim to his apartment, either forcibly disrobed him or

instructed him to disrobe, then sodomized and strangled him); Mickle,

54 Cal. 3d at 175–76 (defendant instructed child to disrobe then forcibly

raped and murdered her).
28 RODRIGUEZ-CASTELLON V. HOLDER

conduct that raises a substantial risk of force.13 Accordingly,

we reject Rodriguez’s arguments to the contrary.

IV

In light of our review, we conclude that section 288(c)(1)

is a felony that raises a substantial risk of physical force in

the ordinary case. Accordingly, Rodriguez’s state crime of

conviction constitutes a categorical “crime of violence,” for

purposes of § 16(b). As such, it is an “aggravated felony” for

purposes of § 1101(a)(43)(F), and the BIA did not err in

upholding this basis for removal.

PETITION DENIED.

13 See, e.g., People v. Martinez, 11 Cal. 4th 434, 444 (1995) (explaining

that “throughout [section 288’s] history, the cases have made clear that a

‘touching’ of the victim is required, and that sexual gratification must be

presently intended at the time such ‘touching’ occurs,” though the ultimate

form of the touching is immaterial); People v. Ortega, —Cal. Rptr. 3d—,

2013 WL 4447554, *1 (Ct. App. 2013) (upholding conviction of an adult

under section 288(c)(1) where the adult sexually molested his 15-year-old

daughter by touching her breasts and vagina while she was asleep); People

v. Tompkins, 185 Cal. App. 4th 1253, 1257 (2010) (upholding conviction

of an adult under section 288(c)(1) for sexually molesting a 14-year-old

girl by slapping or touching her breasts on multiple occasions); People v.

Cavallaro, 178 Cal. App. 4th 103, 106–07 (2009) (upholding conviction

of a 27-year-old defendant under section 288(c)(1) for sexually molesting

two girls, age 14 and 15, by rubbing their breasts, buttocks, thighs and

vagina, among other things, despite their resistance); People v. Lopez,

42 Cal. 4th 960, 963–65 (2008) (upholding conviction of adult under

section 288(c)(1) for sexually molesting a 14- or 15-year-old child by

“once touching his penis, twice masturbating him, and once orally

copulating him”); People v. Mejia, 155 Cal. App. 4th 86, 90, 101 (2007)

(upholding conviction of adult under section 288(c)(1) for sexually

molesting a 14-year-old girl by touching her vagina over her clothes

though she “tried to push him off”).