27 I. & N. Dec. 146
BIA2017Background
- Respondent David Paul Keeley, a U.K. national and U.S. lawful permanent resident, was convicted (2011) in Ohio of rape under Ohio Rev. Code § 2907.02(A)(1)(c).
- Immigration Judge found the Ohio conviction to be an aggravated felony “rape” under 8 U.S.C. § 1101(a)(43)(A) and ordered removal; respondent appealed to the BIA.
- The Ohio statute in effect defined the prohibited acts as “sexual conduct,” including vaginal, anal, oral intercourse and insertion (however slight) of body parts or objects; § 2907.02(A)(1)(c) criminalized sex with a person whose ability to resist or consent is “substantially impaired because of a mental or physical condition.”
- Two primary legal disputes: (1) whether the federal term “rape” includes digital or mechanical penetration (beyond vaginal/anal/oral intercourse), and (2) whether Ohio’s “substantially impaired” standard equates to the generic incapacity-to-consent required by the federal definition.
- The BIA applied the categorical approach (Taylor v. United States) and surveyed federal and state laws as of 1996 (when “rape” was added to the aggravated-felony list) to determine the ordinary contemporary meaning of “rape.”
Issues
| Issue | Plaintiff's Argument (Respondent Keeley) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether federal "rape" includes digital or mechanical penetration | Keeley: "Rape" should be limited to vaginal/anal/oral intercourse; digital/mechanical penetration not within the generic meaning | Govt/BIA: "Rape" should be defined by consensus across jurisdictions and includes digital/mechanical penetration; labels (rape vs. sexual assault) cannot narrow the generic term | Held: "Rape" includes vaginal, anal, oral intercourse and digital or mechanical penetration (however slight) |
| Whether Ohio's "substantially impaired" standard equals generic incapacity-to-consent | Keeley: "Substantially impaired" is broader than "incapable" of consent and may cover lesser impairments; thus Ohio statute overbroad for aggravated-felony "rape" | Govt/BIA: "Substantially impaired" targets inability to appraise nature of conduct and is essentially synonymous with incapacity to give meaningful consent | Held: Ohio's "substantially impaired" formulation aligns with the generic concept of incapacity to consent (victim unable to appraise nature of conduct), so conviction fits aggravated-felony "rape" |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (establishes the categorical approach for defining generic offenses)
- Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) (contrasting court that limited "rape" and is expressly not followed by the BIA)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (guides interpretation of aggravated-felony sexual offenses and cautions against overly narrow readings)
- Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000) (discusses lack of consent and prohibitive conditions relevant to deportation law)