The Ninth Circuit has determined that a California conviction for rape of an unconscious person is not an aggravated felony because it includes intercourse with someone whose consent was procured by fraud. The court found the statute to be overbroad and indivisible.
The court, however, gave the Board of Immigration Appeals another opportunity to decide if the generic definition of rape includes consensual intercourse obtained through fraud. It seems likely that this conviction will again be found to be an aggravated felony after the Board’s decision on remand.
The full text of Valdez Amador v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/09/13-71406.pdf