Henry Robert Lisbey v. Alberto Gonzales, Attorney General

Henry Robert Lisbey petitions for review of the Board of Immigration Appeal’s (“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”) decision finding him removable 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 “substantial 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:

Lisbey was sentenced to three years in prison.

In 2003, the Immigration and Naturalization Service (“INS”) served Lisbey with a…