(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.

Section 101(a)(43)(I) of the Act defines as an aggravated felony an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography). However, the statute does not expressly list 18 USC 2252A " knowingly possess child pornography.

In their current forms, the possession provisions of 2252 and 2252A are almost identical, but 2252A applies to a greater amount of material because the term "child pornography" therein applies to both actual and virtual child pornography.

Additionally, section 2252A prohibits "knowingly possess[ing] . . .

DHS has stated that individuals with expunged convictions did not categorically fall outside the enforcement priorities. Rather, ICE has internal guidance that instructs them to weigh the expungement in determining whether to exercise prosecutorial discretion. ICE officers have the ability to implement this guidance in such a way where an individuals expunged conviction would not make them an enforcement priority. This determination is made on a case-by-case basis.

Matter of Esquivel-Quintana , 26 I. & N. Dec. 469 (BIA 2015) (California conviction of unlawful intercourse with a minor, in violation of Penal Code 261.5(c), which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes aggravated felony "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C.

Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (New York conviction of first-degree sexual abuse under N.Y. Penal Law 130.65, which contains four different offenses, each with different elements, is a divisible statute, permitting consideration of the record of conviction under the modified categorical analysis to determine which offense was the offense of conviction).

United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. Sept. 30, 2014) (Texas conviction of theft [appropriation of property without effective consent of the owner, where consent to temporary possession is not effective if it was induced by deception or coercion], under Penal Code 31.03(b)(1), is categorically an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for immigration purposes).

NOTE: The analysis presented in this decision is short and not very clear.

Butalova v. Atty Gen., __ F.3d __ (11th Cir. Oct. 7, 2014) (court lacks jurisdiction to determine whether noncitizen is a battered spouse, under INA 204(a)(1)(A)(iii)).

See Immigrant Legal Resource Center, Practice Advisory, Great Ninth Circuit Case on Divisible Statutes: California Burglary Never Is Attempted Theft. In Rendon v. Holder the Ninth Circuit clarified when a statute is truly divisible under the categorical approach, and held that California burglary (Penal Code 459) never constitutes the aggravated felony attempted theft. This holding also means that California burglary never is a crime involving moral turpitude, under the categorical approach.

United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir.

Shunaula v. Holder, 732 F.3d 143 (2d Cir. Oct. 16, 2013) (court of appeals lacked subject-matter jurisdiction to review alien's collateral attack of prior expedited removal, because claim that prior removal violated due process did not challenge the expedited removal system generally, its implementing regulations, or any written policies, and government was not seeking to use the prior expedited removal as an element of a criminal offense).