Rivas-Gomez v. Gonzales ( 2006 )

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).