David Keeley v. Matthew Whitaker
910 F.3d 878
| 6th Cir. | 2018Background
- Petitioner David Paul Keeley, a U.K. citizen and U.S. lawful permanent resident, was convicted in Ohio of two counts of rape under Ohio Rev. Code § 2907.02(A)(1)(c), (B) (2011).
- The Department of Homeland Security charged Keeley with being convicted of an aggravated felony (rape) under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(43)(A), and sought removal under 8 U.S.C. § 1227(a)(2)(A)(iii).
- Ohio law defines “sexual conduct” to include digital (finger) penetration, so the Ohio rape statute can be satisfied by digital penetration.
- The INA lists “rape” as an aggravated felony but does not define the term; the court therefore applies the categorical approach to compare the minimum conduct criminalized by the Ohio statute to the generic federal definition of rape as of 1996.
- The Board of Immigration Appeals (BIA) held that the generic federal meaning of rape included digital penetration; the Sixth Circuit reversed, concluding the generic 1996 understanding of rape did not include digital penetration and that Congress separately listed “sexual abuse” in the INA.
Issues
| Issue | Keeley’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether an Ohio rape conviction that can be committed by digital penetration is an INA aggravated felony of “rape” | Ohio’s statute covers digital penetration; generic federal rape (as of 1996) did not include digital penetration, so the conviction is not an aggravated felony | The generic meaning of rape in 1996 had expanded (through statutes labeled sexual assault/sexual abuse) to include digital penetration, so the conviction is an aggravated felony | Held for Keeley: Ohio rape (allowing digital penetration) does not categorically match the INA’s rape and therefore is not an aggravated felony |
| Whether ambiguities should be resolved by Chevron deference or rule of lenity | Any ambiguity favors the defendant; rule of lenity applies | BIA’s interpretation merits Chevron deference | Court found statute unambiguous in context; neither Chevron nor lenity was necessary to resolve the case |
Key Cases Cited
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (describing categorical approach and interpreting undefined sexual-offense terms)
- Taylor v. United States, 495 U.S. 575 (1990) (using common law, state statutes, and Model Penal Code to define generic crimes)
- Descamps v. United States, 570 U.S. 257 (2013) (divisibility and categorical approach principles)
- Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) (finding digital penetration not within generic rape definition)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (focus on elements and minimum conduct under categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presumption about conviction based on minimum conduct)
- Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012) (giving undefined statutory terms their ordinary meaning)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (statutory interpretation begins with text)