Safe Havens

(B)  Safe Havens Specific to this Category.  It is more debatable what other types of aggravated sexual assault or battery will be held to constitute the equivalent of rape.  The offense “rape” was added to the aggravated felony definition by IIRAIRA effective September 30, 1996, more than ten years after the federal statutory offense of “rape” had been eliminated and replaced by the federal statutory offense of “aggravated sexual assault.”[716]  Congress is presumed to have known that there was no federal statutory definition of rape, and was therefore arguably referring to rape under the common law or some other definition and not referring to the federal statute defining “aggravated sexual assault” at the time that it added rape to the aggravated felony definition.  Rape by unconventional means does not constitute “rape” under this category.[717]

[716] The former statute, 18 U.S.C. § 2031, entitled “Rape,” was repealed and replaced by 18 U.S.C. § 2241 entitled “Aggravated sexual abuse.”  See Act of Nov. 10, 1986, P.L. 99-646, § 87(c)(1), 100 Stat. 3623 and Act of Nov. 14, 1986, P.L. 99-654, § 3(a)(1), 100 Stat. 3663.  Compare the BIA’s use of the federal statutory offense “Obstruction of Justice” in defining the aggravated felony “obstruction of justice” under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) in Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999), discussed in “Accessory After the Fact,” § 5.2, supra.  See K. Brady, California Criminal Law And Immigration § 9.13 (2004).

[717] Matter of Gutierrez-Martínez, A17-945-476 (unpublished) (BIA holds that “rape” under INA § 101(a)(43)(A) does not include digital penetration).