Matter of Keeeley, 27 I&N Dec. 146 (BIA 2017)
BIA HEADNOTE:
(1) The term “rape” in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.
(2) The term “rape” also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement 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.
PANEL: Appellate Immigration Judges PAULEY, MALPHRUS, and MULLANE
DECISION BY: Judge Pauley
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Perhaps not surprisingly, the BIA chose not to follow the decision of the Fifth Circuit Court of Appeals in Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) which offered a rape definition slightly more favorable to respondents. The Fifth Circuit generally is known as an very conservative, pro-Government body, hardly the Ninth Circuit or even the Seventh Circuit. But, then, what do Article III Judges know about criminal law and statutory construction?
PWS
10-21-17