Introduction: Matter of Keeley, 27 I&N Dec. 146 (BIA 2016)

On October 20, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Keeley, 27 I&N Dec. 146 (BIA 2017) [PDF version]. Matter of Keeley concerned the scope of the term “rape” in the aggravated felony provision found in section 101(a)(43)(A) of the Immigration and Nationality Act (INA).

The Board held that the term “rape” in section 101(a)(43)(A) “encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight.” In reaching this conclusion, the Board declined to follow the United States Court of Appeals for the Fifth Circuit decision in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) [PDF version]. The Board also held that “rape” in section 101(a)(43)(A) “requires that the underlying sexual act be committed without consent…” The Board held that the “without consent” requirement may be shown by evidence that “the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.”

In this article, we will examine the facts and procedural history of the case, the Board’s analysis and conclusions, how the decision differs from existing Fifth Circuit precedent, and what the decision will mean going forward.

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Factual and Procedural History: 27 I&N Dec. at 146-47

The respondent, a native and citizen of the United Kingdom, became a lawful permanent resident (LPR) of the United States on June 23, 1997.

The respondent was convicted of rape in violation of section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated on January 13, 2011.

On the basis of the respondent’s Ohio conviction, he was charged as removable under section 237(a)(2)(A)(iii) of the INA as an alien convicted of an aggravated felony. The Department of Homeland Security (DHS) took the position that the respondent’s Ohio conviction constituted the aggravated felony rape as specified in section 101(a)(43)(A) of the INA. The Immigration Judge determined that the respondent’s conviction was aggravated felony rape. The respondent made no applications for relief from removal. The Immigration Judge ordered him removed under section 237(a)(2)(A)(iii).

Relevant Statutes, Issues, and Arguments: 27 I&N Dec. at 147

The contested issue in Matter of Keeley was whether a conviction in violation of section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated was aggravated felony rape under section 101(a)(43)(A) of the INA.

The Board explained that the parties agreed that section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated “made it unlawful to ‘engage in sexual conduct’ with another with knowledge or reason to know of the fact that the other person’s ability to resist or consent is ‘substantially impaired because of a mental or physical condition or because of advanced age.’”

The Board excerpted the relevant portion of section 2907.02(A)(1)(c), which defined “sexual conduct” as:

Section 101(a)(43)(A) of the INA defines “murder, rape, or sexual abuse of a minor” as an “aggravated felony” under the immigration laws.

The Board noted that the parties “generally agree[d]” that “rape” as employed in section 101(a)(43)(A) “refers to an offense that encompasses some form of sexual act that is committed under certain prohibitive conditions, including incapacity to consent to the sexual act.”

However, the Board then explained that the parties disagreed on the following two points:

1. Whether “rape” in section 101(a)(43)(A) “encompasses digital or mechanic penetration or is confined to acts of vaginal, anal, or oral intercourse.”
2. Whether the “substantial impairment” standard in the Ohio statute of conviction “is synonymous with an incapacity to consent.”

Accordingly, the Board would resolve both of the contested points in its decision. It is worth noting that in footnote 2 of the decision, the Board made clear that it did not “purport to resolve all aspects of the definition of ‘rape’ in section 101(a)(43)(A) of the [INA].” Instead, the Board sought only to resolve the questions at issue in Matter of Keeley. Other issues involving section 101(a)(43)(A) may be addressed in subsequent cases.

Analysis and Conclusions: 27 I&N Dec. 147-58

The Board published extensive analysis on the questions presented in Matter of Keeley before it reached its conclusions, ruling in favor of the Government’s position on both questions. In the subsequent sub-sections, we will cover the various parts of the Board’s analysis.

Using the Categorical Approach: 27 I&N Dec. at 147

The Board stated that it was bound to apply the categorical approach set forth in the decision of the Supreme Court of the United States in Taylor v. United States, 495 U.S. 575 (1990) [PDF version] and subsequent Supreme Court decisions that followed Taylor. To learn more about the categorical approach, please see a collection of our articles on the issue [see article].

The Board explained that the categorical approach required it “to compare the scope of conduct punished as rape under section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated to the generic definition of ‘rape’ as employed in section 101(a)(43)(A) of the [INA].”

To put it simply, the Board would be concerned exclusively with the language of the Ohio statute rather than the specific facts of the respondent’s conduct that resulted in his conviction. If the Board found that all conduct punishable by section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated would constitute “rape” under section 101(a)(43)(A) of the INA, then the Ohio statute would categorically define aggravated felony rape. If the Ohio statute punished additional conduct that would not constitute aggravated felony rape, than a conviction in violation of the statute would not constitute an aggravated felony under section 101(a)(43)(A) of the INA.

Origin of Aggravated Felony Rape Provision: 27 I&N Dec. at 148

The Board explained that “rape” was added to section 101(a)(43)(A) of the INA by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C. of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627.

However, the term “rape” is neither defined in the INA nor elsewhere in Federal law. Accordingly, the Board determined that it would have to “define the term [‘rape’] according to its ordinary, contemporary meaning in 1996, when ‘rape’ was added to section 101(a)(43)(A).” The Board cited to its published decision in Matter of Alvarado, 26 I&N Dec. 895 (BIA 2016) [see article], where it engaged in a similar inquiry with respect to section 101(a)(43)(S) of the INA.

Board’s Examination of the Meaning of “Rape” In Law: 27 I&N Dec. at 148-49

The Board began its analysis by stating that it would first have to “examine the evolution of rape offenses, and sex offenses in general, from their common law roots to Congress’ addition of the term to the [INA].” The following bullet points summarize the Board’s overview of common law rape and sex offenses along with the Board’s citations:

“Common law recognized two sexual offenses: rape and sodomy.” 1 Wayne R. LaFave, Substantive Criminal Law § 2.1 (2d ed.), Westlaw (database updated Oct. 2017).
Under the common law, rape was defined as “the carnal knowledge of a woman forcibly and against her will.” Laws prohibiting rape followed this definition for the first half of the 20th century. “Carnal knowledge” referred to the “physical act necessary for rape.” Specifically, this meant the “penetration of the female sex organ by the male organ.” 2 LaFave, supra, § 17.1.
The American legal definition of “sodomy” derived from the common law definition. Sodomy laws “prohibited anal intercourse between two men, including acts such as anal and oral intercourse between two males or a male and a female.” Model Penal Code §§ 213.0(3), 213.2 cmt. 1 at 357−62 (1980) (regarding “deviate sexual intercourse”).

The Board explained that the laws began to shift in the 1960s, as recognized by the Model Penal Code. First, the term “carnal knowledge” was generally replaced by the term “sexual intercourse.” Under Model Penal Code sec. 213(1) (1962), “sexual intercourse” included vaginal, anal, and oral intercourse. The Board added that this change “acknowledged the growing community consensus that intercourse was the defining act that separated rape from other forms of nonconsensual sexual contact.” The Board noted that this change “earmarked the use of ‘rape’ as an all-encompassing term to refer to offenses with the common characteristic of sexual intercourse.”

The Board stated that the meaning of “rape” in U.S. law continued to change over time, especially from the early 1970s onward. One change noted by the Board was that many jurisdictions began to make rape statutes gender-neutral. Furthermore, many states began to use different terms for “rape” offenses such as “sexual assault,” “sexual battery,” and “criminal sexual conduct.” It explained that the changes meant that the modern crime of “rape” bears little in common with the common law definition of the crime. (Board’s citations omitted in this section but available at 27 I&N Dec. at 149.)

Rejecting Fifth Circuit (and Respondent’s) Method for Examining 1996 Rape Statutes: 27 I&N Dec. at 149-52

The Board then moved to survey the relevant State statutes in effect at the time “rape” was added to the INA in 1996.

The respondent took the position that the analysis of the “ordinary, contemporary meaning of ‘rape’ in 1996 should be limited to examining the laws of 23 States that prohibited a crime specifically called ‘rape’ at that time.” Recall that the Board noted in the prior section that, beginning in the 1970s, many states had begun using other terms for offenses that may be broadly described as constituting “rape.”

The respondent’s position was identical to that taken by the Fifth Circuit in 2012 in Perez-Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012). The Fifth Circuit found that in 1996, less than a majority of the 23 states that had a crime specifically called “rape” included digital or mechanical penetration in their “rape” statutes. For this reason, the Fifth Circuit concluded that digital and mechanical penetration were not commonly considered rape in 1996. The respondent argued that the Board should adopt the same conclusion. However, the Board stated that it “respectfully disagree[d] with this conclusion.”

The Board concluded that the respondent’s argument and the Perez-Gonzalez decision rested on a “faulty proposition”: “[T]hat the laws of 27 States and the District of Columbia that used terms other than ‘rape’ to refer to crimes prohibiting forms of nonconsensual sexual intercourse in 1996 are irrelevant to determining the generic definition of ‘rape.’” Here, the Board cited to multiple sources to support its proposition that “[t]he community consensus in 1996 was that the newly denominated crimes of ‘sexual assault,’ sexual battery,’ and ‘criminal sexual conduct’ were synonymous with ‘rape.’” For example, the Board cited to Black’s Law Dictionary 1267 (7th ed. 1999), which stated that “rape” is “[a]lso termed (in some statutes) unlawful sexual intercourse; sexual assault; sexual battery; [and] sexual abuse.” The Board added that many jurisdictions that used terms other than “rape” to cover these offenses treated them as “synonymous” or “equivalent.” See 27 I&N Dec. at 150 n.5 for a list of examples provided by the Board. The Board found particularly pertinent the Illinois Supreme Court decision in In re Detention of Lieberman, 776 N.E.2d 218, 226 (Ill. 2002), which stated that the crimes were renamed “to take a hodgepodge of preexisting statutes and fit them into a consistent coherent whole which is a spectrum of sex offenses … [and] create[] one comprehensive law that reflects the fact that rape encompasses all types of sexual assault” (excerpted by the Board).

The Board then explained that the Federal Government had likewise renamed offenses that had previously used the term “rape.” For example, the Federal crime of “rape” under 18 U.S.C. 2301 (1982) was replaced with “aggravated sexual abuse” and “sexual abuse,” codified at 18 U.S.C. 2241 and 2242 (1988). The Board cited to the Congressional Record, which noted that Congress had made these changes to “modernize[] and reform[] Federal rape laws.” 132 Cong. Rec. H11,291, H11, 292 (daily ed. Oct. 17, 1986). The Board concluded that Congress’ renaming of the Federal rape statute “was intended to remove barriers associated with the traditional understanding of rape and to bring Federal law in line with the growing consensus among the States that the term ‘rape’ refers to a broader range of unacceptable conduct than a male coercing a female to engage in sexual intercourse.” Accordingly, the Board concluded that Congress still viewed the renamed offenses as being forms of “rape.”

The Board found support for its reading of Congress’ design in statutes passed subsequent to 1988. First, a Federal sentence enhancement statute codified at 18 U.S.C. 3559(c)(2)(A) (1994) defined “assault with intent to commit rape” as including the elements of “engaging in physical contact with another … with intent to commit aggravated sexual abuse or sexual abuse (codified in sections 2241 and 2242).” The Board also noted that in 42 U.S.C. 15609(9) (2006), Congress defined an offense of “rape” as covering the same sexual misconduct elsewhere labeled as “aggravated sexual abuse” and “sexual abuse.” The Board took this as additional evidence that “aggravated sexual abuse” and “sexual abuse” in Federal law both referred to “rape” offenses. At 27 I&N Dec. at 152 n.7, the Board recognized that Congress could have used the term “sexual abuse” in section 101(a)(43)(A) in lieu of “rape.” However, it stated that “it is not persuasive that … Congress meant to return to a narrow common law definition that it rejected a decade earlier…”

The Board then cited to the Supreme Court decision in Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1570 (2017) [see article], which addressed the “sexual abuse of a minor” provision in section 101(a)(43)(A) of the INA. The Board stated that it is unlikely that, in defining one of “the most heinous crimes” as an aggravated felony, Congress thereby “intended to exclude comparably heinous offenses that were outlawed by the majority of jurisdictions … merely because they were labeled differently.” The Board saw no reason to exclude offenses not labeled as “rape” that nevertheless were “substantially similar” to laws in other jurisdictions that used the term “rape.” It took the position that “such a label-centric approach runs counter to the very purpose of the categorical approach.”

For this reason, the Board saw fit to examine the Federal law and laws of all 50 states, not just those of the states that used the term “rape” specifically in order to determine the meaning of “rape” as used in section 101(a)(43)(A) of the INA in 1996. The Board here followed Esquivel-Quintana, 137 S.Ct. at 1570-72.

Rule: “Rape” Includes Digital and Mechanical Penetration: 27 I&N Dec. at 152-54

The Board found that “[t]he consensus among the States in 1996 was that rape entailed not only acts of vaginal, anal, and oral intercourse but also digital and mechanical penetration of the vagina or anus.”

It noted that in 1996, 32 state jurisdictions included both mechanical and digital penetration in its definition of the crime of rape. An additional four jurisdictions included mechanical penetration but not digital penetration. The Board therefore concluded that, because a majority of jurisdictions included both mechanical and digital penetration in 1996, “such offenses are also covered by the definition of ‘rape’ in section 101(a)(43)(A) of the [INA].”

The Board cited to Matter of M-W-, 25 I&N Dec. 748, 752 n.5 [PDF version], in noting that it is proper to rely “to a significant degree” on the Federal definition of an offense in formulating the generic definition of a term in the immigration laws. Accordingly, the Board also noted that 18 U.S.C. 2246(2)(C) (1994) defined “sexual act” in part as “the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object.” This definition was relied upon in the Federal statutes proscribing “aggravated sexual abuse” and “sexual abuse,” which we discussed in the previous subsection.

For the foregoing reasons, the Board concluded that “’rape’ under section 101(a)(43)(A) of the [INA] includes an act of vaginal, anal, or oral intercourse or digital or mechanical penetration of the vagina or anus, no matter how slight.”

At 27 I&N Dec. at 154 n.9, the Board stated that it is unclear how many jurisdictions in 1996 would conform to the Fifth Circuit’s definition of aggravated felony rape set forth in Perez-Gonzalez had the Fifth Circuit examined the laws of all 50 States rather than only 23. However, the Board took the position that the Fifth Circuit’s narrow definition did not comport with “a ‘general consensus’ of the laws throughout the country in 1996.” To this effect, the Board cited to Esquivel-Quintana, 137 S.Ct. at 1572, which held that the categorical approach should not be applied as to prevent the INA from applying to a majority of state offenses (see also Torres v. Lynch, 136 S.Ct 1619, 1628 (2016) [PDF version]).

Rule: Defining the Scope of “Consent”: 27 I&N Dec. at 155-58

Both parties in Matter of Keeley agreed that rape occurs when “the [victim’s] resistance is overcome by force or fear, or under other prohibitive conditions.” Black’s Law Dictionary 1260 (6th ed. 1990) (emphasis added by the Board). Citing again to the 6th edition of Black’s Law Dictionary, the Board explained that the lack of consent element may be satisfied when the victim does not assent to the sexual act. Additionally, the element may be satisfied even when the victim “agrees” to the sexual act provided that there are “other prohibitive conditions.” Such “prohibitive conditions” may include age, physical or mental health, “or other factors that negate consent.”

The question before the Board was “how to define lack of consent generally and when a victim’s mental condition amounts to a ‘prohibitive condition’ that makes the underlying act of sexual penetration unlawful.”

The Board found that, in 1996, the prevailing view in U.S. law was that the victim’s mental condition was prohibitive in either of the following two circumstances:

1. “[T]he victim’s mental capacity is substantially impaired as the result of an intoxicant administered without his or her consent, typically by the defendant.”
2. “[T]he victim is incapable of giving consent as a result of a mental disease or defect, and the defendant knew or had reason to know of the victim’s condition.”

The Board cited to Model Penal Code sections 213.1(b)(1980); Appendix B and 213.1(2)(b); Appendix C respectively for the above circumstances.

The Board determined that the Ohio statute of conviction in the instant case “is structured to include these two circumstances.” The Board noted that the section 2907.02(A)(1)(a), (c) defines rape as the commission of a sexual act where either:

1. [T]he victim’s mental capability is substantially impaired as the result of an intoxicant administered without his or her consent by the defendant[;] or
2. [T]he victim’s mental capacity is substantially impaired and the defendant knew or had reason to know of the impairment.

The respondent argued that the term “substantial impairment” in the context of generic “rape” is limited only to cases in which an intoxicant was administered to the victim without his or her consent. He took the position that other situations that are premised instead on the victim’s mental inability to consent should trigger a higher standard of being “incapable” of consent. Based on the respondent’s preferred reading, a victim’s mental capacity may be “substantially impaired” without going so far as to render him or her “incapable” of consenting. To support his assertion, the respondent cited to the fact that in 1996, what the Board described as an “overwhelming majority” of jurisdictions and the Model Penal Code had used the term “incapable” when defining the “prohibitive condition” required.

However, the Board noted that it was “not clear what meaning the respondent ascribe[d] to the concept of being ‘incapable’ of consenting.” It suggested that respondent “attribute[d] to this term a meaning that requires complete incapacitation, or an inability to vocalize consent.” The Board found such a narrow reading to be “flatly at odds with the consensus in 1996,” citing to Model Penal Code sec. 213,1 cmt 1 at 276, which rejected a view that would require the victim to suffer “from extreme retardation or some catastrophic psychological disability [that renders him or her] incapable of expressing a judgment in the sense of saying ‘yes.’”

The Board further found that, in 1996, “numerous States required that the victim’s mental condition rendered him or her capable of giving effective or meaningful consent.” Id. The Board rephrased this as requiring that “the victim’s mental condition had to prevent him or her from making a reasonable judgment about the nature and consequences of the underlying sexual act.” Id. sec. 2.11(3)(b).

The Board thus declined to read “incapable” as “indicating an absolute inability to consent.” The Board determined that the “meaningful consent” standard is consistent with the consensus of numerous States in 1996, which “defined the victim as being ‘incapable of appraising’ or incapable of appreciating’ the nature of his or her conduct.” The Board quoted the following passage from the New York Court of Appeals decision in People v. Easley, 364 N.E.2d 1328, 1332 (N.Y. Ct. App. 1977) [PDF version]: “An ability to ‘appraise’ is, of course, a qualitative matter, all the more so when the appraisal is one to be made of the ‘nature’ of ‘conduct’, with the variety of factors that one ‘appraising’ may have to take into account for such purposes.” The Board noted, therefore, that “the term ‘incapable’ lacks an unconditional quality when used in conjunction with relative concepts like ‘appraising’ or ‘appreciating.’” People v. Ardilla, 647 N.E.2d 1355, 1355-56 (N.Y. Ct. App. 1995). Citing again to Easley, the Board stated that the key question in determining whether a victim is “incapable of appraising is whether he or she is “substantially able to understand what [he or] she was doing.” Easley, 364 N.E.2d at 1332. Note that at 27 I&N Dec. at 157 n.14, the Board cites to many other state court decisions that it found reached similar conclusions.

The Board stated that “[t]here is no meaningful distinction between these approaches and those adopted by States, such as Ohio, that consider victims to have a prohibitive condition if their ability to appraise the nature of the sexual act is ‘substantially impaired.’” The Board rejected the respondent’s claim that the statute of his conviction applied to “any reduction or diminution in the victim’s ability to appraise the nature of the sexual activity…” Instead, the Board cited to multiple decisions of the Ohio Court of Appeals which made clear that the impairment must be substantial.

Accordingly, the Board concluded that “[r]equiring that the victim’s impairment be substantial is essentially synonymous with requiring that the impairment be of such a degree as to deprive the victim of the ability to provide meaningful consent.” Accordingly, the Board adopted the standard that “incapable of consent” refers to the inability to provide meaningful consent, not outright incapacitation.

Board’s Conclusion: 27 I&N Dec. at 158

The Board concluded that section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated categorically defined aggravated felony rape under section 101(a)(43)(A). Accordingly, it dismissed the respondent’s appeal.

Learn More About the Board’s Reasoning: 27 I&N Dec. at 159-67

The Board’s decision included multiple appendices of the State statutes it examined in reaching its conclusions on the meaning of “rape” in 1996. You may examine these statutes and the Board’s extensive footnotes within the body of the decision to learn more about how it came to its definition of “rape” in the context of section 101(a)(43)(A).

Conclusion

The key points in Matter of Keeley are that the Board (1) read aggravated felony rape as encompassing “digital or mechanical penetration, no matter how