FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CARLOS RENE RIVAS-GOMEZ, Petitioner, No. 03-72087 v. Agency No. A74-705-590 ALBERTO R. GONZALES, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 5, 2004—Portland, Oregon
Filed April 3, 2006
Before: Edward Leavy, Stephen S. Trott, Circuit Judges, and Louis H. Pollak,* Senior District Judge.
Opinion by Judge Trott; Dissent by Judge Pollak
*Hon. Louis H. Pollak, Senior U.S. District Judge for the Eastern Dis- trict of Pennsylvania, sitting by designation.
3611 3614 RIVAS-GOMEZ v. GONZALES
COUNSEL
Philip Smith, Portland, Oregon, for the petitioner.
Nicole Hope Nelson, Hecht & Smith, LLP, Portland, Oregon, for the petitioner.
Leslie McKay, U.S. Department of Justice, Washington, D.C., for the respondent.
Keith Bernstein, U.S. Department of Justice, Washington, D.C., for the respondent. RIVAS-GOMEZ v. GONZALES 3615 OPINION
TROTT, Circuit Judge:
This petition for review raises the question of whether a conviction under Oregon Revised Statutes (“ORS”) § 163.355 (rape in the third degree), which criminalizes as a felony “sex- ual intercourse with another person under 16 years of age,” constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A). We conclude, as did the Immigra- tion Judge (“IJ”), that it does. However, because the IJ errone- ously applied a heightened standard when deciding whether to grant a waiver under 8 U.S.C. § 1159(c), we grant the petition in part and remand.
BACKGROUND
Carlos Rene Rivas-Gomez (“Rivas”), a native and citizen of Guatemala, entered the United States in 1997 as an asylee. In 2001, Rivas pleaded guilty to felony rape in the third degree pursuant to ORS § 163.355. He was placed on three years’ formal probation under Oregon’s “Sex Offender Provi- sions.” These provisions made Rivas eligible under Oregon law for registration and supervision as a “predatory sex offender.” ORS § 181.585-181.592. The charge arose out of a sexual relationship between Rivas, who was nineteen years old at the time, and a fourteen-year-old girl. The Immigration and Naturalization Service (“INS”)1 initiated removal pro- ceedings against Rivas pursuant to 8 U.S.C. § 1227(a)(2) (A)(iii), which renders deportable “any alien who is convicted of an aggravated felony at any time after admission.” “Rape” is classified by federal law an aggravated felony. 8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony” as “murder, rape, or sexual abuse of a minor”). 1 Pursuant to the Department of Homeland Security Reorganization Plan, as of March 1, 2003, the INS was abolished and its functions were transferred to the Department of Homeland Security. See 6 U.S.C. § 542. 3616 RIVAS-GOMEZ v. GONZALES The IJ terminated Rivas’s asylee status and ordered Rivas removed to Guatemala, finding that Rivas’s conviction for rape in the third degree constituted an aggravated felony, and denying Rivas’s application for a waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals summarily affirmed the immigration judge’s decision, rendering the IJ’s decision the final agency determination. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir. 2005). Rivas now appeals the IJ’s decision, arguing that his felony conviction for rape in the third degree under Oregon law does not fall within the ordi- nary, contemporary, and common meaning of the word “rape” because the crime does not require (1) force or fear or intimi- dation, and (2) a factual lack of consent. In supplemental briefing, Rivas argues also that the IJ erred when he applied a heightened standard to Rivas’s waiver application.
STANDARD OF REVIEW
We review de novo the issue of whether a particular offense constitutes an aggravated felony. See Park v. INS, 252 F.3d 1018, 1021 (9th Cir. 2001). Purely legal questions are also reviewed de novo. See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).
DISCUSSION
We have jurisdiction to review questions of law raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). Therefore, we have jurisdiction to consider Rivas’s claims (1) that his crimi- nal conviction does not constitute an aggravated felony, see Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452, *1 (9th Cir. March 6, 2006), and (2) that the IJ erroneously applied the law in denying his waiver application.
A. Aggravated Felony
[1] In determining whether Rivas’s conviction qualifies as an aggravated felony, we apply the analytical model set forth RIVAS-GOMEZ v. GONZALES 3617 in Taylor v. United States, 495 U.S. 575 (1990). See United States. v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004). Under the Taylor categorical approach, “the issue is not whether [the defendant’s] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the statute the defendant violated] consti- tutes an aggravated felony.” United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir. 2000) (alterations and in origi- nal) (quoting United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994)) .
[2] The Taylor categorical approach requires that we look to the “ordinary, contemporary, and common meaning” of the word “rape” to determine whether the conduct prohibited by ORS § 163.355 falls within that definition. See United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (“[W]e must interpret the undefined term ‘sexual abuse of a minor’ by ‘employing the ordinary, contemporary, and common meaning of the words that Congress used.’ ”) (quoting Zim- merman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999)). In so doing, we “look solely to the statutory definition of the crime, not to the name given to the offense or to the underlying circumstances of the predicate conviction.” Baron- Medina, 187 F.3d at 1146.
[3] We have previously looked to Black’s Law Dictionary for the contemporary meaning of the word “rape,” as well as for other terms used in state statutes. See United States v. Yanez-Saucedo, 295 F.3d 991, 996 (9th Cir. 2002) (citing Black’s Law Dictionary for the contemporary definition of “rape”); Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000) (same); United States v. Pallares-Galan, 359 F.3d at 1100 (defining “sexual abuse”). Black’s Law Dictionary defines “rape” as “[u]nlawful sexual activity . . . with a person . . . without consent and usu[ally] by force or threat of inju- ry.” Black’s Law Dictionary 1288 (8th ed. 2004) (emphasis added). Thus, the ordinary, contemporary, and common legal meaning of “rape” — the gravamen of the offense — “con- 3618 RIVAS-GOMEZ v. GONZALES tains at least the following elements:” that the defendant engage in sexual activity with another person and that the sex- ual activity is (1) unlawful and (2) without consent.2
We conclude that the full range of the conduct prohibited by Oregon’s third-degree rape statute falls squarely within the ordinary, contemporary, and common meaning of the word “rape.”
[4] First, the Oregon statute prohibits “sexual intercourse with another person under 16 years of age.” ORS § 163.355. The statute criminalizes sexual intercourse with a minor, ren- dering such conduct “unlawful.”
[5] Second, as to the “without consent” element of the con- temporary rape definition, Oregon’s criminal code provides that “[a] person is considered incapable of consenting to a sexual act if the person is . . . [u]nder 18 years of age.” ORS § 163.315(1)(a); see also Wilson v. Tobiassen, 777 P.2d 1379, 1384 (Or. Ct. App. 1989) (stating that “a person under eigh- teen is incapable of consenting to a sexual act”). Sexual activ- ity with a person under the age of eighteen is, as a matter of Oregon law, “without consent.” Therefore, Oregon’s third- degree rape statute, which prohibits sexual intercourse with persons under the age of sixteen, contains an inherent “with- out consent” element. With respect to this element of rape, we see no material difference in this context between rape where the victim expresses a lack of consent, or is unconscious or asleep or duped, on one hand, and rape where the victim because of youth and vulnerability is, as a matter of law, inca- pable of consenting, on the other. 2 In Taylor, the Court followed this analytical process and determined that, “[a]lthough the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598. RIVAS-GOMEZ v. GONZALES 3619 [6] Nevertheless, Rivas argues that his conviction does not fall within the ordinary, contemporary, and common meaning of the word “rape” because the statute under which he was convicted does not contain a requirement that the victim’s resistance be overcome by force or fear. However, we have already rejected the argument that the contemporary defini- tion of rape includes a forcible compulsion element. See Yanez-Saucedo, 295 F.3d at 996 (concluding that “third- degree rape under [Washington Revised Code] § 9A.44.060(a) fits within a generic, contemporary definition of rape, which can, but does not necessarily, include an ele- ment of physical force beyond that required for penetration”) (emphasis added). In addition, the controlling federal statute does not draw an exclusionary distinction between the differ- ent ways that the crime of rape can be committed.
[7] As a general rule, neither force nor fear is an essential element of rape. In California, for example, rape is described as an “act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:”
(1) Where a person is incapable, because of a men- tal disorder or developmental disability, of giv- ing legal consent. . . . .
(2) Where it is accomplished against a person’s will by means of force, violence, duress, men- ace, or fear of . . . injury on the person of another.
(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the 3620 RIVAS-GOMEZ v. GONZALES accused. As used in this paragraph, “uncon- scious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential charac- teristics of the act due to the perpetra- tor’s fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential charac- teristics of the act due to the perpetra- tor’s fraudulent representation that the sexual penetration served a pro- fessional purpose when it served no professional purpose.
(5) Where a person submits under the brief that the person committing the act is the victim’s spouse, and this belief is induced by any arti- fice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) Where the act is accomplished against the vic- tim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. RIVAS-GOMEZ v. GONZALES 3621 (7) Where the act is accomplished against the vic- tim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a rea- sonable belief that the perpetrator is a public official. As used in this paragraph, “public offi- cial” means a person employed by a govern- mental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
Cal. Penal Code § 261.
We are informed in this respect by our holding in Castro- Baez v. Reno, 217 F.3d at 1059, that a conviction under Sec- tion 261(a)(3) of the California Penal Code for engaging in sexual intercourse with a victim who could not resist because of the ingestion of drugs or other intoxicants qualified as rape pursuant to Section 1101(a)(43)(A), and was therefore an aggravated felony. We said, “In ordinary usage, rape is under- stood to include the act of engaging in non-consensual sexual intercourse with a person whose ability to resist has been sub- stantially impaired by drugs or other intoxicants.” Id. at 1059. Furthermore, under California law, a person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is subject to either felony or misdemeanor prosecution and imprisonment of up to four years in prison. Cal. Penal Code § 261.5(d). The title of California’s crime is “Unlawful Sexual Intercourse,” but, as we learn from Baron-Medina, we look to the conduct pro- scribed, not simply the title of the statute.
In Taylor, as here, the defendant attempted to subdivide Congress’ use of a word referencing a crime, i.e. “burglary,” into various subclasses, and to narrow or to restrict the term “burglary” to especially dangerous subclasses of burglaries, such as those where the “offender is armed, or the building is 3622 RIVAS-GOMEZ v. GONZALES occupied, or the crime occurs at night.” Id. At 588. This attempt failed. The Court said,
Congress presumably realized that the word “burgla- ry” is commonly understood to include not only aggravated burglaries, but also run-of-the-mill bur- glaries involving an unarmed offender, an unoccu- pied building, and no use or threat of force.
Id. at 597.
Looking at the full range of conduct covered by the statute here, it is sexual intercourse with a youthful person in need of protection and without adequate armor against the act, a per- son who, by virtue of age, vulnerability, and immaturity with respect to an appreciation of the potential consequences of the prohibited behavior, has been shielded by law from the seri- ous ramifications and hazards of exploitive sexual intercourse. The hazards of this behavior inflicted upon a minor, which include the physical risks of sexually transmitted disease as well as the burdens of teenage unmarried pregnancy, have been determined by Oregon’s legislative and executive branches of government to be serious enough to the present and future health and welfare of the victim taken advantage of to render the victim incapable of consenting to the act as a matter of law. In addition, the conduct proscribed by law is sufficiently egregious that a person who violates it becomes a felon and is subject to the loss of liberty, with sexual offender supervision and registration conditions attached.
It is the conduct proscribed by the Oregon statute which violates the physical integrity of the victim that drives our analysis, not the label. The petitioner has not brought to our attention any state cases wherein a person has been convicted of this crime without directly engaging in the prohibited con- duct. The crime, unlike the crime we analyzed in Pallares- Galan, is not a simple misdemeanor; and it does not encom- pass a range of conduct so extensive that it includes peripheral RIVAS-GOMEZ v. GONZALES 3623 behavior equivalent to “offering minor females a ride home, driving in the opposite direction, and refusing to let them out of the car until they have escaped,” or “repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her.” 359 F.3d at 1101.
Our respected dissenting colleague appears to have been led in his analysis by his judgment that rape of this kind is not generally regarded as serious as forcible rape. True, the pun- ishment may be different, but this difference is not dispositive because all felony rape — whatever the methodology of the offender — appears to us to fall above the line that might sep- arate aggravated from non-aggravated rape felonies — if there is such a thing. In this respect, we do not disagree at all with our dissenting colleague’s statements that “[a]ssimilating Rivas’s crime to generic rape is in a sense understandable,” and that “Rivas’s crime is called a type of rape.”
Our recent decision in Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. March 6, 2006) does not compel a different conclusion. In Valencia, we considered only whether a California felony conviction for “unlawful sexual intercourse with a minor who is more than three years youn- ger than the perpetrator,” Cal. Penal Code § 261.5(c), consti- tuted a “crime of violence” under a different subsection of 18 U.S.C. § 1101(a)(43), subsection (F). We concluded that the petitioner’s conviction was not a “crime of violence” under subsection (F) because it did not involve a “substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. at *2. We did not decide whether statutory rape was “rape” and thus an aggravated felony under subsection (A).
[8] Because ORS section 163.355 prohibits sexual activity that is both (1) unlawful and (2) without consent as a matter of law, we conclude that a conviction under that statute falls within the ordinary, contemporary, and common meaning of the word “rape.” Rivas’s conviction therefore constitutes an 3624 RIVAS-GOMEZ v. GONZALES aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A).
B. Waiver Standard
[9] Despite his aggravated felony conviction, Rivas remained eligible to apply for adjustment of status. However, because his conviction was for a “crime involving moral tur- pitude,” 8 U.S.C. § 1182(a)(2)(A)(i)(I), Rivas was not admis- sible unless he obtained a waiver under 8 U.S.C. § 1159(c), which provides that the Attorney General “may waive” appli- cation of § 1182 “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” Rivas asserts that the IJ erred when he applied the heightened, “ex- treme hardship” standard when he denied Rivas’s waiver application, raising two legal arguments. First, he asserts that in Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002), the Attor- ney General exceeded his statutory authority by imposing a heightened waiver standard for aliens convicted of violent or dangerous crimes. Second, he argues that the IJ erred in applying the heightened standard in his case without first determining that Rivas’s aggravated felony conviction was for a violent or dangerous crime.
[10] Jean concerned a § 1182 waiver for a female alien who had been convicted of second-degree manslaughter in connection with the death of a nineteen-month-old child that had been left in her care. Reversing the BIA’s grant of the waiver, the Attorney General determined that “evaluations of requests for waivers of inadmissibility . . . cannot . . . focus solely on family hardships, but must consider the nature of the criminal offense that rendered an alien inadmissible in the first place.” Id. at 383. The Attorney General stated that “vio- lent or dangerous individuals” would not be granted a waiver “except in extraordinary circumstances, such as those involv- ing national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status RIVAS-GOMEZ v. GONZALES 3625 adjustment would result in exceptional and extremely unusual hardship.” Id.
[11] Rivas’s first argument that the Attorney General exceeded statutory authority by adopting a heightened stan- dard is foreclosed by our decision in Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir. 1991). Ayala-Chavez upheld the Attorney General’s requirement that waiver applicants under former § 212(c), 8 U.S. C. § 1182(c), with serious drug offense convictions demonstrate “outstanding equities.” Id. Under Ayala-Chavez the Attorney General has broad discre- tion to grant or deny waivers and may establish general stan- dards governing the exercise of such discretion “as long as these standards are rationally related to the statutory scheme.” Id. Here, the Attorney General’s heightened waiver standard for aliens convicted of violent or dangerous crimes is ratio- nally related to the national immigration policy of not admit- ting aliens who would be a danger to society.
The second argument raised by Rivas, that the IJ erred when he applied the Jean “extreme hardship requirement” without first determining that Rivas’s conviction was for a “violent or dangerous” crime has merit. While the govern- ment argues that the IJ merely balanced the equities when he denied the waiver, the IJ assumed from the beginning of the proceeding that Rivas’s conviction triggered the Jean analy- sis, and concluded by stating:
So the Court wishes to make its analysis plain. I believe that [the Jean] standard applies to him and the primary basis for my decision, which I cannot grant it, is because I do not believe that he had met that burden. I am not denying [the waiver] because of his either lack of accounting for the crime and the other things the Court is commenting on those. But the Court is denying it because it does not meet the hardship standard indicated by the Attorney General. 3626 RIVAS-GOMEZ v. GONZALES Thus, we consider Rivas’s legal argument.
[12] In Jean, the Attorney General did not impose the heightened “extreme hardship” standard on all aliens with aggravated felony convictions, only on those who “engage in violent criminal acts.” Jean, 23 I. & N. Dec. at 384. The determination in Jean was fact-based, not categorical. More- over, in a subsequent decision the BIA specifically limited Jean’s heightened waiver requirement to “dangerous or vio- lent crimes.”3 In re K-A-, 23 I. & N. Dec. 661, 666 (BIA 2004). Therefore, the IJ erred when he applied the “extreme hardship” standard without first making a determination based on the facts underlying Rivas’s conviction that Rivas’s crime was violent or dangerous. Thus, we grant the petition in part and remand for further proceedings consistent with this opin- ion.
PETITION DENIED IN PART AND GRANTED IN PART. REMANDED.
POLLAK, Senior U.S. District Judge, dissenting from Part A:
If I agreed with the court’s determination that the offence to which petitioner Rivas pled guilty, and, for which he received a sentence of probation, constituted, an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(A), and hence that he should be removed to his native Guatemala, I would join the court’s determination that the Immigration Judge erred in assessing Rivas’s waiver application and that the matter should be remanded for further proceedings. But I am not in agreement with the court’s ruling that Rivas’s offense constituted an “aggravated felony.” Therefore, I 3 The BIA also stated that “even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.” Id. RIVAS-GOMEZ v. GONZALES 3627 would grant Rivas’s petition for review with direction to remand this matter to the IJ to reopen removal proceedings and to rescind the removal order.
I
At the age of fifteen, petitioner Rivas, a native of Guate- mala, was admitted to the United States as an asylee. Four years later, Rivas, then nineteen and residing with his family in Oregon, was charged with the crime, under Oregon law, of “[r]ape in the third degree,” which is defined as “sexual inter- course with another person under 16 years of age.” ORS § 163.355. The charge grew out of Rivas’s sexual relationship with a fourteen-year old schoolmate. Rivas pled guilty and was sentenced to a three-year probationary term.
Thereupon the former Immigration and Naturalization Ser- vice (“INS”, which was one of the agencies whose functions were absorbed into the new Department of Homeland Secur- ity in 2003), initiated removal proceedings against Rivas. The asserted ground of removal was that the crime to which Rivas had pled guilty was an “aggravated felony,” conviction for which, “at any time after admission,” renders one subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggra- vated felony” means “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
Concluding that the crime to which Rivas pled guilty was an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43)(A), the Immigration Judge entered an order of removal directing that Rivas be deported to his native Guate- mala. The Board of Immigration Appeals summarily affirmed.
II
Rivas’s petition for review argues that the Immigration Judge erred as a matter of law in finding that ORS § 163.355 3628 RIVAS-GOMEZ v. GONZALES is an “aggravated felony.” It is Rivas’s submission that Ore- gon’s “rape in the third degree” is not “rape” as that word is used in the trilogy of “aggravated felon[ies]” specified in 8 U.S.C. § 1101(a)(43)(A). If Rivas is right, the Immigration Judge’s order of removal must be set aside.
This court concludes that the crime to which Rivas pled guilty — Oregon’s “rape in the third degree” — is “rape” within the meaning of the federal statutory phrase “murder, rape, or sexual abuse of a minor,” 8 U.S.C. §1101(a)(43)(A), and hence the court denies Rivas’s petition for review. For the reasons that follow, I disagree.
III
The court is correct in following the path marked out by Taylor v. United States, 495 U.S. 575 (1990) in inquiring whether an offense is an “aggravated felony.” The Taylor inquiry, as the court explains, “requires that we look to the ‘ordinary, contemporary, and common meaning’ of the word ‘rape’ to determine whether the conduct prohibited by ORS § 163.355 falls within that definition,” ante at 3617 (citing United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)). The court then proceeds to consult Black’s Law Dic- tionary to find the “ordinary, contemporary, and common meaning” of “rape.” The court quotes the Black’s Law Dictio- nary definition: “[u]nlawful sexual activity . . . with a person . . . without consent and usu[ally] by force or threat of injury.” Black’s Law Dictionary 1288 (8th ed. 2004). From this the court distills what it finds to be the two ingredients of “rape” — “that the sexual activity is (1) unlawful and (2) without consent,” ante at 3618. The court then states that ORS § 163.355 “falls squarely within the ordinary, contemporary, and common meaning of the word ‘rape.’ ” Ante at 3618. This is so, according to the court, because, first, ORS § 163.355 expressly proscribes — thus making “unlawful” — “sexual intercourse with another person under 16 years of age,” and, second, another Oregon statute — ORS § 163.315(1)(a) — RIVAS-GOMEZ v. GONZALES 3629 provides that “[a] person is considered incapable of consent- ing to a sexual act if the person is . . . [u]nder 18 years of age.” Thus, the court reasons, ORS § 163.355 “contains an inherent ‘without consent’ element.” Ante at 3618. The court then goes on to state: “With respect to [the ‘without consent’] element of rape, we see no material difference in this context between rape where the victim expresses a lack of consent . . . and rape where the victim . . . is, as a matter of law, inca- pable of consenting.” Ante at 3618.
There are two difficulties with the court’s analysis:
(1) The first difficulty inheres in the court’s assimilation of ORS § 163.355 to the Black’s Law Dictionary definition of “rape.” A more apt Black’s Law Dictionary definition would be that of “statutory rape,” to which the court does not refer. “Statutory rape” — “[u]nlawful sexual activity with a person under the age of consent (as defined by statute) regardless of whether it is against that person’s will,” Black’s Law Dictio- nary 1288 (8th ed. 2004) — is, quite clearly, the prototype offense of which ORS § 163.355 is an example. “Statutory rape,” as exemplified by ORS § 163.355, is not a sub-set of the generic offense called “rape.” It is a distinct offense, sepa- rately codified by the Oregon legislature. Compare ORS § 163.355 with ORS § 163.375(1) (“A person who has sexual intercourse with another person commits the crime of rape in the first degree if . . . [t]he victim is subjected to forcible com- pulsion by the person” or “the victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.”).1 Reference sources other than Black’s Law 1 Oregon is not alone in classifying the offense having the elements of generic “rape” separately from the offense constituting “statutory rape.” In this Circuit, Alaska, Arizona, California, Nevada, and Washington do so as well. Compare Alaska Stat. § 11.41.410(a)(1) (Michie 2005) (crimi- nalizing “sexual penetration with another person without consent of that person” as first-degree sexual assault) with Alaska Stat. § 11.41.436(a) (Michie 2005) (characterizing as sexual abuse of a minor in the second 3630 RIVAS-GOMEZ v. GONZALES Dictionary confirm the distinction between generic “rape” as an offense keyed to non-consent and “statutory rape” as an offense in which the absence of consent is not an issue. Thus, the American Heritage Dictionary defines “rape” as “[t]he crime of forcing another person to submit to sex acts, espe- cially sexual intercourse,” American Heritage Dictionary of
degree the act of an offender “16 years of age or older . . . [who] engages in sexual penetration with a person who is 13, 14, or 15 years of age and at least three years younger than the offender”); Ariz. Rev. Stat. § 13-1406 (2004) (criminalizing as a class 2 felony sexual assault, defined as “sexual intercourse or oral sexual contact with any person without consent of such person”) with Ariz. Rev. Stat. § 13-1405 (2004) (criminalizing “sexual intercourse or oral sexual contact with any person who is under eighteen years of age,” and characterizing that offense as a class 2 felony where the minor is under 15 years of age, or a class 6 felony where the minor is at least 15 years of age); Cal. Pen. Code § 261 (Deering 2004) (defining “rape” as a crime requiring force, duress, trickery, or an absence of actual consent (e.g., because the victim was sleeping or intoxicated)) with Cal. Pen. Code § 261.5(c)) (Deering 2004) (criminalizing, as a misdemeanor or felony, sexual intercourse with a minor who is more than three years younger than the offender); Nev. Rev. Stat. § 200.366 (2004) (characteriz- ing as a category A felony “sexual assault,” which the statute defines as “subject[ing] another person to sexual penetration, or [ ] forc[ing] another person to make a sexual penetration on himself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct . . . .”) with Nev. Rev. Stat. § 200.368 (2004) (characterizing as a gross misdemeanor sexual intercourse committed by one who is between the ages of 18 and 21 with a minor under the age of 16, which Nevada terms “statutory sexual seduc- tion,” § 200.364); and Rev. Code Wash. § 9A.44.060(a) (2004) (crimi- nalizing as a class C felony unconsented sexual intercourse where the “lack of consent was clearly expressed by the victim’s words or conduct”) with Rev. Code Wash. § 9A.44.079 (2004) (criminalizing as a class C fel- ony sexual intercourse with a minor between the ages of 14 and 16 where the offender is at least forty-eight months older). By contrast, three states in this Circuit treat generic “rape” and “statu- tory rape” as different aspects of the same offense. See Haw. Rev. Stat. § 707-730 (2004) (characterizing as a class A felony both sexual penetra- tion resulting from strong compulsion and sexual intercourse with a minor RIVAS-GOMEZ v. GONZALES 3631 the English Language 1498 (3d ed. 1992), while defining “statutory rape” as “[s]exual relations with a person who has not reached the age of consent,” id. at 1757. And the Encyclo- pedia Britannica instructs that “rape” is “sexual intercourse with a woman by a man without her consent, either through force or the threat of force or through fraud,” and that “[s]exual intercourse with a female who is below consenting age is termed statutory rape, and consent is no longer rele- vant.” 9 New Encyclopedia Britannica: Micropaedia 941 (1998). Moreover, in determining the “ordinary, contempo- rary, and common meaning” of “rape,” it would seem of par- ticular interest that the Department of Justice, in its annual National Crime Victimization Survey, characterizes “rape” as “forced sexual intercourse including both psychological coer- cion, as well as physical force.” Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice, National Crime Victimization Survey Interviewing Manual for Field Representatives, http://www.ojp.usdoj.gov/bjs/pub/ ascii/manual.txt (May 5, 2003).
(2) As noted above, the court states that it “see[s] no material difference in this context between rape where the vic- tim expresses a lack of consent . . . and rape where the victim . . . is, as a matter of law, incapable of consenting,” ante at 3618. But it appears that the State of Oregon sees a differ- ence. Under Oregon law, one “who has sexual intercourse with another person” when “[t]he victim is subjected to forc- ible compulsion by the person” or “is incapable of consent by reason of mental defect, mental incapacitation or physical
between the ages of 14 and 16 where the offender is at least five years older); Idaho Code § 18-6101 (2004) (defining “rape” as, inter alia, sexual penetration of a female under the age of 18, as well as sexual penetration of a female who resists but whose resistance is overcome by force or vio- lence); Mont. Code Ann. § 45-5-501 (2004) (defining “without consent” as used in § 45-5-503 (Montana’s provision for “sexual intercourse with- out consent”) as, inter alia, sexual intercourse compelled by force, and sexual intercourse with a minor less than 16 years old). 3632 RIVAS-GOMEZ v. GONZALES helplessness” is guilty of “the crime of rape in the first degree,” which “is a Class A felony.” ORS § 163.375. But ORS § 163.355 — the crime to which Rivas pled guilty — “is a Class C felony.” For a Class A felony, the maximum fine is $375,000, ORS § 161.625, and “the maximum term of an indeterminate sentence of imprisonment” is 20 years, ORS § 161.605; for a Class C felony, the maximum fine is $125,000, ORS § 161.625, and the maximum prison term is 5 years, ORS § 161.605.2 (As noted above, Rivas was sen- tenced to three years’ probation). 2 Like Oregon, other states in this Circuit that classify the offense of generic “rape” in a separate provision from the offense of “statutory rape” tend to characterize “rape” as a significantly more serious crime. Compare Alaska Stat. § 12.55.125(I)(1) (Michie 2005) (setting the sentencing range for first-degree sexual assault, § 11.41.410(a)(1), at between 8 and 40 years) with § 12.55.125(I)(3) (setting the sentencing range for sexual abuse of a minor in the second degree, § 11.41.436(a), at between 5 and 20 years); Cal. Pen. Code § 264 (Deering 2004) (stating that the crime of “rape” as defined in § 261, see supra note 1, is “punishable by imprison- ment in the state prison for three, six, or eight years”) with Cal. Pen. Code § 261.5(c)) (Deering 2004) (positing one year as the maximum term of imprisonment for sexual intercourse with a minor who is more than three years younger than the offender); and Nev. Rev. Stat. § 200.366 (setting the minimum penalty for sexual assault, a category A felony, at 25 years imprisonment, with a maximum of life without parole) with § 200.368(2) (classifying “statutory sexual seduction” by one under the age of 21 years as a gross misdemeanor, punishable “by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $ 2,000, or by both fine and imprisonment,” § 193.140). But this pattern appears not to obtain in Washington and Arizona. Washington criminalizes both unconsented sexual intercourse, Rev. Code Wash. § 9A.44.060(a), and intercourse with a minor, § 9A.44.079, as class C felonies, subject to a maximum term of imprisonment of five years, § 9A.20.021(1)(c)). In Arizona, sexual intercourse with a minor less than 15 years old is subject to a harsher penalty than is generic “rape,” compare Ariz. Rev. Stat. § 13-604.01(C)) (2004) (setting the presumptive sentence for the first-time offender convicted of sexual conduct (including sexual intercourse, see § 13-1405) with a minor at twenty years if the minor is less than 15 years old) with Ariz. Rev. Stat. § 13-1406 (2004) (setting the statutory minimum penalty for sexual assault committed by a first-time offender, a class 2 felony, at 5.25 years, with a presumptive sentence of 7 years); by contrast, sexual intercourse with a minor who is at least 15 RIVAS-GOMEZ v. GONZALES 3633 IV
Assimilating Rivas’s crime to generic “rape” is in a sense understandable. Rivas’s crime is called a type of “rape” — “rape in the third degree.” But we have been admonished not to be misled by the tyranny of labels. In inquiring into the “ ‘ordinary, contemporary, and common meaning of the words that Congress used,’ ” Baron-Medina, 187 F.3d at 1146 (quoting Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir. 1999)), and comparing that meaning with the crime asserted to be an “aggravated felony,” we are to “look solely to the statutory definition of the crime, not to the name given to the offense or to the underlying circumstances of the predicate conviction,” id. (emphasis added).
The question to be determined is whether Rivas’s crime is “rape” within the meaning of the word as Congress used it, in the statutory grouping “murder, rape, or sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A), to define the category of “aggravated felon[ies]” conviction for which would be ground for deportation. Prior to amendment of the statute in 1996, “murder” was the one listed crime. See 104 Pub. L. No. 208, § 321, 110 Stat. 3009-546, -628 (1996) (amending § 1101(a)(43)(A) by “inserting, ‘rape, or sexual abuse of a minor’ after ‘murder’ ”). “Congress decided to broaden 8 U.S.C. § 1101(a)(43)(A) from just murder to include rape and sexual abuse of a minor, implicitly signaling that it felt both of these latter two crimes were of similar severity and import.” Guerrero-Perez v. INS, 242 F.3d 727, 736 (7th Cir. 2001). ORS § 163.355 is not of “similar severity and import” to murder.
years old is subject to a lesser penalty than is generic “rape,” see Ariz. Rev. Stat. § 13-701(C)) (2004) (setting a presumptive penalty of a year for the first-time offender convicted of sexual intercourse with a minor who is at least 15 years old). 3634 RIVAS-GOMEZ v. GONZALES V
In sum, I conclude that the crime to which Rivas pled guilty was not an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(A).3 Therefore, I would grant Rivas’s petition for review and direct the IJ to reopen removal pro- ceedings and rescind the removal order.
3 The court relies on United States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir. 2002), for support. That reliance is misplaced. The statute under which the alien was convicted in Yanez-Saucedo — Rev. Code Wash. § 9A.44.060 — is not analogous to ORS § 163.355. Section 9A.44.060 criminalizes, in pertinent part, “sexual intercourse with another person, not married to the perpetrator . . . [w]here the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct.” Importantly, § 9A.44.060 requires that the victim clearly mani- fest her lack of consent, and it applies regardless of the age of the victim. In short, § 9A.44.060 does not criminalize statutory rape. Indeed, Wash- ington has a separate provision for that crime, Rev. Code Wash. § 9A.44.079 (criminalizing “[r]ape of a child in the third degree,” which the statute defines as “sexual intercourse with another who is at least four- teen years old but less than sixteen years old and not married to the perpe- trator and the perpetrator is at least forty-eight months older than the victim”), and it is that provision which is the proper analog of ORS § 163.355 (criminalizing “[r]ape in the third degree,” which the statute defines as “sexual intercourse with another person under 16 years of age”), compare ORS § 163.365 (criminalizing, as a class B felony, sexual inter- course with a person under the age of 14).