BIA

AGGRAVATED FELONY " RAPE " DEFINITION " REQUIREMENT OF PENETRATION
(the term rape in the aggravated felony definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight, and also requires that the underlying act be committed without consent; lack of consent includes where the victims ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment). NOTE: The BIA suggested, but did not hold, that lack of consent may include inability to consent due to age.

First Circuit

RAPE - STATUTORY RAPE
Silva v. Gonzales, 455 F.3d 26 (1st Cir. Jul. 14, 2006) (Massachusetts conviction of statutory rape of 14-year-old girl, under Mass. Gen. Laws ch. 265, § 23 ["unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under sixteen years of age"], was held in immigration court to be a "rape" aggravated felony for immigration purposes; since respondent did not challenge this conclusion, he waived any objection to removal on this basis).

Fifth Circuit

AGGRAVATED FELONY " RAPE " REQUIREMENT OF SEXUAL INTERCOURSE " DIGITAL PENETRATION INSUFFICIENT
Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. Jan. 12, 2012) (Montana conviction of felony sexual intercourse without consent, in violation of Mont.Code Ann. 45"5"503(1), knowingly have sexual intercourse without consent with a person of the opposite sex, not his spouse, was not categorically rape within the meaning of the aggravated felony rape definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because digital penetration is not rape; and under modified categorical analysis, neither charging document nor order accepting guilty plea, under statute which punished any nonconsensual penetration of victim, be it penile, digital or mechanical, necessarily established that alien was convicted of crime constituting rape).

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. Jul. 20, 2007) (California conviction for forcible rape, in violation of California Penal Code 261 (1990), is not necessarily a crime of violence for illegal re-entry sentencing purposes, since "[a] subsection of that statute defines duress as a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. Id. at 261(b) (emphasis added). It adds that [t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. Id.).

Note: The court here tries to distinguish United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.), and suggests that Beliew may be contrary to established Fifth Circuit precedent.

Ninth Circuit

RAPE
United States v. Yanez Saucedo, 295 F.3d 991 (9th Cir. July 8, 2002) (Washington conviction of third-degree rape, in violation of Wash. Rev.Code § 9A.44.060, was an "aggravated felony" as rape under INA § 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), to trigger sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for conviction of unlawfully re-entry, even though the elements of the state statute are different than those of the federal "rape" statute and the conviction required only that force required for penetration, which was sufficient to meet the federal generic definition of rape).

RAPE
Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. June 30, 2000) (California rape conviction under California Penal Code § 261(a)(3) constitutes an "aggravated felony" within the meaning of INA § 101(a)(43)(A) for deportation purposes, though the elements of the state and federal statutes are not identical).