These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
rape
The Eighth Circuit has determined that Minnesota’s crime of third-degree criminal sexual conduct does not match the generic definition of rape because the Minnesota crime includes digital or mechanical penetration, which are outside the generic definition of rape.
The full text of Quito-Guachichulca v. Garland can be found here:
The Board of Immigration Appeals has confirmed that rape is a torture and is not a lawful sanction. “Rape clearly rises to the level of torture. It is an extreme form of cruel and inhuman treatment’ that causes severe pain or suffering and is therefore mistreatment sufficiently severe to qualify for protection under the CAT where the other elements are established. As the Immigration Judge noted, torture does not include pain or suffering arising from lawful sanctions. However, a lawful sanction must be judicially imposed or otherwise authorized by law. While incarceration is a lawful sanction, rape by fellow inmates is not. Additionally, a lawful sanction cannot ‘defeat the object and purpose of the Convention Against Torture to prohibit torture. Thus, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.”
The full text of Matter of H-C-R-C- can be found here:
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
The Eleventh Circuit has determined that a New York conviction for sexual misconduct is not categorically a rape aggravated felony. The court declined to determine if the conviction - which covers both statutory and forcible rape offenses - is divisible. Assuming divisibility, the court found that the complaint did not establish whether the petitioner was convicted of a forcible or statutory rape offense. The complaint alleged that he engaged in both types of rape, and the plea itself did not specify to which form of rape he pled.
The full text of George v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201814000.pdf
The Board of Immigration Appeals (BIA) has determined that a rape aggravated felony encompasses not only vaginal, oral, and anal intercourse, but also acts of digital or mechanical penetration of the vagina or anus, no matter how slight. The BIA has also determined that the required lack of consent can be established through 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. Such circumstances include where the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without his or her consent, typically by the defendant, and where the 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 full text of Matter of Keeley can be found here:
