(E)  General Aggravated Felony Safe Havens.  It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

First Circuit

AGGRAVATED FELONY - 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).

AGGRAVATED FELONY - RAPE - STATUTORY RAPE - AGGRAVATED FELONY "RAPE" CONCEPT INCLUDES "STATUTORY RAPE"
Silva v. Gonzales, 455 F.3d 26, 2006 WL 1954969 (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"], constituted "rape" aggravated felony, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for deportation purposes) (dictum) ("Here, the statute of conviction, Mass. Gen. Laws ch. 265, 23, specifically terms the crime of conviction "[r]ape." Under the explicit language of the INA, all rape-including statutory rape-comes within the aggravated felony taxonomy. See 8 U.S.C. 1101(a)(43)(A); see also Mattis v. Reno, 212 F.3d 31, 34-35 (1st Cir.2000) (superseded on other grounds) (holding that statutory rape . . . is an aggravated felony under INA 101(a)(43)(A)). It follows inexorably that the petitioner's state-court conviction was properly classified as a conviction for an aggravated felony.").

This analysis is plainly incorrect. It reasons that because the state labels an offense a certain way, the offense falls within the federal aggravated felony term. Many decisions, however, clearly hold that whether a crime falls within the federal definition is a matter of federal law, and the state label attached to the offense is irrelevant. See N. Tooby & J. Rollin, Aggravated Felonies 4.37 (3d Ed. 2006).

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).