Adil Elmakhzoumi v. JEFFERSON SESSIONS III, Attorney General; and ROBIN BARRETT

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADIL E LMAKHZOUMI,
Plaintiff-Appellant,
v.
J EFFERSON S ESSIONS III, Attorney
General; and R OBIN B ARRETT,
Defendants-Appellees.
No. 16-16232
D.C. No.
3:15-cv-03958-JD
OPINION
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.

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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.

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ELMAKHZOUMI V. S ESSIONS 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 sodomy conviction was a “crime
of violence” under 8 U.S.C. § 1101(a)(43)(F). The

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4 ELMAKHZOUMI V. S ESSIONS
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 an aggravated felony within the meaning of
8 U.S.C. § 1101(a)(43)(A).
Elmakhzoumi petitioned the district court for de novo
review. The court dismissed the petition for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, holding that a violation of CPC § 286(i) falls
within the generic definition of “rape” for purposes of the
Immigration and Naturalization Act (“INA”), as stated in
Castro-Baez, 217 F.3d at 1059. Elmakhzoumi appeals,
arguing that non-consensual sodomy, as described by CPC
§ 286(i), is not rape within the meaning of 8 U.S.C.
§ 1101(a)(43)(A), and therefore is not an aggravated felony.
Elmakhzoumi timely appeals.
DISCUSSION
We review de novo the district court’s grant of a motion
to dismiss. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,
998 (9th Cir. 2010).
A. Legal Standards
To be eligible for naturalization, an applicant must
demonstrate that he or she is a person of “good moral
character.” 8 U.S.C. § 1427(a)(3). A person who has been
convicted of an aggravated felony, as defined by 8 U.S.C.
§ 1101(a)(43), cannot meet this requirement, 8 U.S.C.

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ELMAKHZOUMI V. S ESSIONS 5
§ 1101(f)(8), and thus is permanently ineligible for
naturalization. Under § 1101(a)(43)(A), the crime of “rape”
is an aggravated felony. To determine whether a violation of
CPC § 286(i) falls within the INA’s definition of “rape,”
courts “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
[the statute] falls within that common, everyday definition.”
Castro-Baez, 217 F.3d at 1059 (quoting United States v.
Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)).
B. Application
California defines “sodomy” as “sexual conduct
consisting of contact between the penis of one person and
the anus of another person. Any sexual penetration, however
slight, is sufficient to complete the crime of sodomy.” CPC
§ 286(a). Elmakhzoumi was convicted of sodomy under
circumstances where “the victim is prevented from resisting
by an intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably
should have been known by the accused.” CPC § 286(i). In
Castro-Baez, we defined “rape,” as used in 8 U.S.C.
§ 1101(a)(43)(A), 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.” 217 F.3d at 1059. The district court applied that
definition and ruled that it “applie[d] in full to the statutory
definition of [Elmakhzoumi]’s crimes.”
Elmakhzoumi argues that the Castro-Baez definition
does not apply to CPC § 286(i) because the underlying
conviction in that case was for a violation of CPC
§ 261(a)(3), which proscribes nonconsensual acts of “sexual
intercourse.” Because California law distinguishes between
“an act of sexual intercourse” in its rape statute, CPC § 261,

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6 ELMAKHZOUMI V. S ESSIONS
and “sodomy” in its sodomy statute, CPC § 286,
Elmakhzoumi argues, the definition of “rape” in Castro-
Baez applies only to statutes involving “an act of sexual
intercourse.” Non-consensual sodomy, he asserts, does not
fall within the generic definition of “rape” because it is not
an act of sexual intercourse. Elmakhzoumi further argues
that courts should look instead to federal rape statutes for a
generic definition of “rape.” But we have explicitly rejected
the use of federal statutes to determine the generic definition
of “rape” under the INA. See Castro-Baez, 217 F.3d at 1059
(“[T]he definition of rape under federal law simply has no
bearing on whether [Petitioner]’s state conviction constitutes
an ‘aggravated felony’ for purposes of establishing his
deportability.”). Moreover, the definition of “rape”
articulated in Castro-Baez includes all conduct prohibited by
CPC § 286(i) and therefore applies to Elmakhzoumi’s case.
The generic definition of “sexual intercourse” includes
acts of sodomy. The fact that California has enacted separate
statutory provisions for “rape,” prohibiting non-consensual
vaginal intercourse, and “sodomy,” prohibiting non-
consensual anal intercourse, is irrelevant so long as the
entirety of the conduct covered by each statute falls within
the generic definition. In Castro-Baez, we looked to Black’s
Law Dictionary to find the “ordinary, contemporary, and
common meaning” of the term “rape.” 217 F.3d at 1059.
That same resource defines “intercourse” as not limited to
vaginal intercourse, but inclusive of any “[p]hysical sexual
contact, esp[ecially] involving the penetration of the vagina
by the penis.” Black's Law Dictionary (10th ed. 2014).
California law defines “sodomy” as physical sexual contact.
See CPC § 286(a) (“sexual conduct” that involves “[a]ny
sexual penetration”). Further, the Board of Immigration
Appeals (“BIA”) recently issued In re Keeley, 27 I. & N.
Dec. 146, 147–52 (B.I.A. 2017), which includes a

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ELMAKHZOUMI V. S ESSIONS 7
comprehensive overview of the ordinary and contemporary
definition of “rape” under 8 U.S.C. § 1101(a)(43)(A) as it
existed when the term was used in the immigration code in
1996. After an exhaustive survey of state rape and sexual
assault laws, the BIA concluded that the generic definition
of “rape” includes, at a minimum, “acts of vaginal, anal, and
oral intercourse.” Id. at 152.
CONCLUSION
Because the generic definition of “rape” articulated in
Castro-Baez includes non-consensual acts of anal
intercourse, violations of CPC § 286(i) qualify as rape
offenses under the INA. Elmakhzoumi therefore has been
convicted of an aggravated felony and cannot meet the
INA’s good moral character requirement for naturalization.
AFFIRMED.

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