Lisbey v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY ROBERT LISBEY, 
Petitioner, No. 04-70557
v.
 Agency No.
A24-902-889
ALBERTO GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 7, 2005—Pasadena, California
Filed August 22, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
and Stephen S. Trott, Circuit Judges.
Opinion by Chief Judge Schroeder
10973
LISBEY v. GONZALES 10975
COUNSEL
Allan Ides, Loyola Law School, Los Angeles, California, for
the petitioner.
Russell Verby and Carol Federighi, Office of Immigration
Litigation, Washington, D.C., for the respondent.
OPINION
SCHROEDER, Chief Judge:
Henry Robert Lisbey petitions for review of the Board of
Immigration Appeal’s (“BIA”) dismissal of his appeal from
10976 LISBEY v. GONZALES
an Immigration Judge’s (“IJ”) decision finding him remov-
able as an alien convicted of an aggravated felony. At issue
in this appeal is whether the crime of sexual battery under
California Penal Code § 243.4(a) constitutes an “aggravated
felony” authorizing removal of an alien pursuant to
§ 237(a)(2)(A)(iii) of the federal Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(A)(2)(A)(iii).
We hold that the crime is an aggravated felony because it
requires the intimate touching of another person while that
person is under unlawful restraint, and thus involves a “sub-
stantial risk” that physical force against that person may be
used within the meaning of 18 U.S.C. § 16(b). Therefore we
must deny the petition for review.
Lisbey is a native and citizen of Belize who has been a
legal resident of the United States since 1982. In 2000, Lisbey
pleaded guilty to sexual battery under California Penal Code
§ 243.4(a). That section provides:
Any person who touches an intimate part of another
person while that person is unlawfully restrained by
the accused or an accomplice, and if the touching is
against the will of the person touched and is for the
purpose of sexual arousal, sexual gratification, or
sexual abuse, is guilty of sexual battery.
Lisbey was sentenced to three years in prison.
In 2003, the Immigration and Naturalization Service
(“INS”) served Lisbey with a Notice to Appear, alleging he
was removable from the United States. The INS charged that
Lisbey’s conviction under California Penal Code § 243.4(a)
constituted an aggravated felony, specifically a crime of vio-
lence, for which he was removable under INA § 237(a)(2)
(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
Under INA § 237(a)(2)(A)(iii), any alien who is convicted
of an aggravated felony at any time after admission is remov-
LISBEY v. GONZALES 10977
able. An aggravated felony includes “a crime of violence . . .
for which the term of imprisonment [is] at least one year.”
INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Title 18
U.S.C. § 16, in turn, defines the term “crime of violence” to
mean:
(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.
The IJ concluded that a violation of California Penal Code
§ 243.4(a) constituted a “crime of violence” within the mean-
ing of 18 U.S.C. § 16(b), because there is a substantial likeli-
hood that the perpetrator will use force against the victim.
Therefore, the IJ held that Lisbey was removable as charged.
The BIA affirmed the decision in a brief opinion by a single
member of the BIA. The BIA emphasized that the sexual
touching under the California sexual battery statute must be
committed against the victim’s will and by restraint, thereby
creating a substantial risk of resistance by the victim and the
use of physical force by the perpetrator. Lisbey appealed. We
have jurisdiction to review questions of law presented in peti-
tions for review of final orders of removal. REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, § 106(a)(1)(A)(iii);
see also Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th
Cir. 2005).
[1] In determining whether a conviction constitutes a
“crime of violence” under § 16, the court must look “to the
elements and the nature of the offense of conviction, rather
than to the particular facts relating to petitioner’s crime.” Leo-
cal v. Ashcroft, 125 S. Ct. 377, 381 (2004). See also Tokatly
v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004). Thus, the court
10978 LISBEY v. GONZALES
must look to the statutory definition of the prior offense. See
Tokatly, 371 F.3d at 620; Singh v. Ashcroft, 386 F.3d 1228,
1232 (9th Cir. 2004).
[2] The statutory definition of sexual battery under Califor-
nia Penal Code § 243.4(a) provides that a person “who
touches an intimate part of another person while that person
is unlawfully restrained by the accused or an accomplice, and
if the touching is against the will of the person touched and
is for the purpose of sexual arousal, sexual gratification, or
sexual abuse, is guilty of sexual battery.” The statute has no
requirement of actual or threatened physical force and is
therefore not a “crime of violence” within the meaning of
§ 16(a).
[3] The issue is whether the offense of sexual battery con-
stitutes a “crime of violence” under § 16(b), which requires
that the offense be a felony that, “by its nature, involves a
substantial risk that physical force against the person or prop-
erty of another may be used in the course of committing the
offense.” This offense is a felony under California law. See
Cal. Penal Code § 17. This circuit has not yet decided whether
the commission of the offense of sexual battery is likely to
involve a “substantial risk” of the use of “physical force”
within the meaning of § 16(b).
We have recent guidance from the United States Supreme
Court, however. It interpreted § 16(b) in Leocal v. Ashcroft,
125 S. Ct. 377 (2004). The Court held that the crime of “driv-
ing under the influence of alcohol and causing serious bodily
injury” did not involve a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense, as required under § 16(b).
Id. at 379. The Court stated that the ordinary meaning of the
term “crime of violence,” combined with the emphasis in § 16
on the use of physical force or the risk of having to use such
physical force, suggests a category of violent, active crimes
that cannot include the accidental or negligent conduct
LISBEY v. GONZALES 10979
involved in that case. Id. at 383. See also Lara-Cazares v.
Gonzales, 408 F.3d 1217, 1220-22 (9th Cir. 2005).
[4] By way of contrast, the Supreme Court pointed out that
the crime of burglary would be a crime of violence under
§ 16(b) because “burglary, by its nature, involves a substantial
risk that the burglar will use force against a victim in complet-
ing the crime.” Id. at 383. See also United States v. Becker,
919 F.2d 568, 571 (9th Cir. 1990). This court has previously
analogized sexual offenses to burglary for purposes of the
crime of violence analysis, because of the risk of violent con-
frontation. See United States v. Wood, 52 F.3d 272, 276 (9th
Cir. 1995) (offense of indecent liberties with minor); see also
Sutherland v. Reno, 228 F.3d 171, 176-77 (2d Cir. 2000)
(offense of indecent assault and battery). The analogy is apt
in this case, as well. As the BIA pointed out, the statutory def-
inition of sexual battery requires that the sexual touching not
only be committed against the victim’s will, but also by the
restraint of the victim. We agree with the BIA that under these
circumstances, there is a substantial risk of the use of physical
force. The fact that it is possible to commit the offense with-
out the use of physical force does not take the offense outside
the realm of § 16(b), so long as the substantial risk is present.
See Leocal, 125 S. Ct. at 383.
[5] All of the circuits to address this question have similarly
concluded that sexual battery is a “crime of violence” under
§ 16(b). In Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. 2004), the
Fifth Circuit had “little difficulty in concluding” that an
offense under a similar sexual battery statute created a sub-
stantial risk that physical force may be used. Id. at 361. The
court viewed the non-consent of the victim as the touchstone
for its conclusion that the offense involves substantial risk of
the use of physical force. Id. The Second and Tenth Circuits
have reached the same conclusion, using similar reasoning.
Sutherland, 228 F.3d at 176-77; United States v. Reyes-
Castro, 13 F.3d 377, 379 (10th Cir. 1993).
10980 LISBEY v. GONZALES
Lisbey relies on the Supreme Court’s statement in Leocal
that § 16 encompasses only a “category of violent, active
crimes.” 125 S. Ct. at 383. Lisbey argues that § 16(b) includes
only offenses that are of the order or magnitude of offenses
included under § 16(a), which requires the use of actual,
attempted, or threatened force. However, the Court in Leocal
was addressing whether a crime that could be committed with
a mental state of negligence or less would be a crime of vio-
lence under § 16. Id. at 383-84. The Court did not define what
crimes were covered by the statute, nor did it suggest that sex-
ual battery would be outside the statute.
Lisbey also asks us to conclude that § 16 is ambiguous and
to apply the rule of lenity to construe the ambiguities in favor
of the petitioner. See Leocal, 125 S. Ct. at 384. Courts should
not deem a statute “ambiguous” for purposes of lenity merely
because it is possible to articulate a construction more narrow
than that urged by the Government. Moskal v. United States,
498 U.S. 103, 108 (1990). Instead, courts have “reserved len-
ity for those situations in which a reasonable doubt persists
about a statute’s intended scope even after resort to the lan-
guage and structure, legislative history, and motivating poli-
cies of the statute.” Id. (citation and internal quotation marks
omitted). This is not such a case. The meaning of this statute
is clear.
Finally, Lisbey points out that sexual battery is not on Cali-
fornia’s list of “violent” felonies for sentencing purposes, see
California Penal Code § 667.5(c), and is excluded from the
state’s list of violent sex crimes, see California Penal Code
§ 220. He contends the offense is therefore nonviolent in
nature for purposes of federal immigration law.
[6] This circuit has noted that when a state defines a crime
as a “violent felony,” we may decide that a crime is a crime
of violence under § 16. See Ruiz-Morales v. Ashcroft, 361
F.3d 1219, 1222 (9th Cir. 2004); see also Wood, 52 F.3d at
276. However, the fact that California does not list sexual bat-
LISBEY v. GONZALES 10981
tery as a “violent” crime is not dispositive of the issue here.
Section 16(b) requires only a substantial risk that force will be
used in the commission of the offense. California’s list of “vi-
olent” crimes for sentencing purposes does not include all
crimes that carry a substantial risk of force.
[7] Sexual battery under California Penal Code § 243.4(a)
does carry a substantial risk of force and is therefore a crime
of violence for purposes of § 16(b), and an aggravated felony
under INA § 237(a)(2)(A)(iii). INA § 101(a)(43)(F), 8 U.S.C.
§ 1101(a)(43)(F). Accordingly, Lisbey is removable pursuant
to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
PETITION DENIED.