Carlos Rene Rivas-Gomez v. Alberto R. Gonzales, Attorney General

Citations: 441 F.3d 1072; 2006 U.S. App. LEXIS 8009; 2006 WL 846222Docket: 03-72087

Court: Court of Appeals for the Ninth Circuit; April 3, 2006; Federal Appellate Court

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A petition for review was filed by Carlos Rene Rivas-Gomez regarding his conviction under Oregon Revised Statutes, ORS 163.355, for third-degree rape, which involves sexual intercourse with someone under 16. The Ninth Circuit Court of Appeals examined whether this conviction qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(A). The court concurred with the Immigration Judge (IJ) that it does constitute an aggravated felony, as federal law classifies rape as such. However, the IJ incorrectly applied a heightened standard when evaluating Rivas's request for a waiver under 8 U.S.C. 1159(c), leading to the court granting the petition in part and remanding the case for further consideration.

Rivas, a Guatemalan citizen who entered the U.S. as an asylee in 1997, was convicted in 2001 and placed on probation, making him eligible for sex offender registration. The INS initiated removal proceedings based on his aggravated felony conviction. The IJ's decision to terminate Rivas's asylee status and order his removal was affirmed by the Board of Immigration Appeals. Rivas contended that his conviction does not align with the conventional understanding of rape, as it lacks elements of force, intimidation, or lack of consent, and asserted that the IJ misapplied the legal standard for his waiver application.

The court maintains jurisdiction to review legal questions raised in the petition, confirming that Rivas's claims regarding the aggravated felony classification and the waiver application denial are within its purview.

To determine if Rivas's conviction qualifies as an aggravated felony, the Taylor v. United States analytical model is applied, which focuses on whether the conduct encompassed by the violated statute constitutes an aggravated felony, rather than the defendant's specific actions. The Taylor categorical approach requires analyzing the ordinary, contemporary, and common meaning of terms like "rape" and "sexual abuse of a minor." According to Black's Law Dictionary, "rape" involves unlawful sexual activity without consent, typically by force or threat. Oregon's third-degree rape statute criminalizes sexual intercourse with individuals under 16, making such actions unlawful. Additionally, under Oregon law, individuals under 18 are considered incapable of consenting to sexual acts, thus fulfilling the "without consent" criterion inherent in the definition of rape. Consequently, the conduct prohibited by Oregon's statute aligns with the legal definition of rape, as it involves both unlawful sexual activity and acts performed without valid consent.

Rivas contends that his conviction does not align with the common understanding of 'rape' because the relevant statute lacks a requirement for the victim's resistance to be overcome by force or fear. However, this argument has been previously dismissed, as established in Yanez-Saucedo, which affirmed that third-degree rape under Washington law is consistent with a contemporary definition of rape that does not necessarily include a forcible compulsion element. Furthermore, federal law does not differentiate between the various means by which rape can occur. Generally, neither force nor fear is considered essential to the definition of rape. California law exemplifies this by outlining several circumstances under which sexual intercourse constitutes rape, including situations where the victim is incapable of giving consent due to mental or physical incapacitation, coercion, or deception. The law also recognizes that a victim may be considered unable to resist due to intoxication or being misled about the nature of the act. A conviction under California Penal Code section 261(a)(3) for sexual intercourse with a victim who could not resist due to drugs has been classified as rape, reinforcing that rape encompasses non-consensual intercourse with individuals whose ability to resist has been significantly impaired.

Under California law, individuals aged 21 or older who engage in unlawful sexual intercourse with minors under 16 face felony or misdemeanor charges, potentially leading to imprisonment for up to four years (Cal. Penal Code 261.5(d)). The statute is titled 'Unlawful Sexual Intercourse,' but the focus is on the prohibited conduct rather than the title. The text references case law, specifically Baron-Medina and Taylor, to illustrate that statutory language should be interpreted broadly to encompass various forms of the offense, rather than narrowly categorizing them into subclasses based on severity.

The document highlights the serious implications of such conduct on minors, who are legally deemed incapable of consenting due to age and vulnerability. The risks associated with sexual intercourse, including sexually transmitted diseases and the potential for teenage pregnancy, are recognized by Oregon’s legislative and executive branches as significant enough to warrant legal protection for minors. Violating this law results in felony status, loss of liberty, and mandatory sexual offender registration.

The analysis emphasizes that the offense is distinct from less serious behaviors, underscoring that the nature of the prohibited conduct itself, which violates the victim's physical integrity, is the primary concern. The author notes that no state cases have shown convictions for this crime without direct engagement in the prohibited acts, contrasting it with minor offenses like offering rides or making gestures, which are not equivalent in severity. Additionally, while there may be differences in punishment, all forms of felony rape are considered serious, and the distinction between types of rape does not diminish the gravity of the offense in question.

In the case of Rivas, it was determined that his conviction under ORS section 163.355 for unlawful sexual activity without consent qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(A), aligning with the legal definition of 'rape.' Despite this aggravated felony conviction, Rivas is eligible to apply for adjustment of status but requires a waiver due to his conviction being classified as a 'crime involving moral turpitude' under 8 U.S.C. 1182(a)(2)(A)(i)(I). Rivas argues that the Immigration Judge (IJ) incorrectly applied a heightened 'extreme hardship' standard when denying his waiver application, based on two points: first, that the Attorney General overstepped authority in implementing this standard as seen in Matter of Jean, and second, that the IJ should have evaluated whether Rivas's conviction was for a violent or dangerous crime before applying the heightened standard.

The Attorney General's decision in Matter of Jean established that waiver evaluations must consider the nature of the crime leading to inadmissibility, rejecting waivers for 'violent or dangerous individuals' except in extraordinary circumstances. Rivas's argument that the Attorney General exceeded statutory authority is countered by the precedent set in Ayala-Chavez v. INS, which upheld the Attorney General's discretion to impose standards for waiver applications. This standard is deemed rationally related to national immigration policy aimed at preventing the admission of potentially dangerous individuals into society.

The Immigration Judge (IJ) erred in applying the 'extreme hardship' requirement from the Jean standard without first determining whether Rivas's conviction was for a 'violent or dangerous' crime. The IJ assumed that Rivas's conviction triggered this analysis and concluded that Rivas did not meet the hardship standard set by the Attorney General. However, the Jean decision applies the heightened standard only to those with aggravated felony convictions who engage in violent criminal acts, and the Board of Immigration Appeals (BIA) has specifically limited this heightened waiver requirement to dangerous or violent crimes. As a result, the IJ's application of the 'extreme hardship' standard without factual determination of the nature of Rivas's crime was incorrect. The petition is granted in part, and the case is remanded for further proceedings consistent with this opinion. A dissenting opinion argues that the court's classification of Rivas's offense as an 'aggravated felony' is not agreed upon, suggesting that if the classification were accepted, the IJ's error in assessing the waiver application would still warrant remand. Rivas, originally from Guatemala, was charged at nineteen with 'rape in the third degree' related to a consensual relationship with a fourteen-year-old, for which he received a three-year probation.

The former Immigration and Naturalization Service (INS) commenced removal proceedings against Rivas, asserting that his guilty plea constituted an 'aggravated felony' that made him subject to deportation under 8 U.S.C. § 1227(a)(2)(A)(iii). The definition of 'aggravated felony' includes 'rape' as specified in 8 U.S.C. § 1101(a)(43)(A). An Immigration Judge determined that Rivas's conviction for 'rape in the third degree' under Oregon law qualified as 'rape' under federal law and ordered his deportation to Guatemala, a decision later affirmed by the Board of Immigration Appeals.

Rivas challenged the Immigration Judge's ruling, arguing that Oregon's 'rape in the third degree' should not be classified as 'rape' for the purposes of federal law. The court upheld the Immigration Judge's conclusion, indicating that the definition of 'rape' should reflect its ordinary meaning as found in Black's Law Dictionary, which defines it as 'unlawful sexual activity... without consent and usually by force or threat of injury.' The court asserted that ORS 163.355, which criminalizes sexual intercourse with individuals under 16, inherently lacks consent, thereby fitting the definition of 'rape.'

However, the dissenting opinion raised two critical points: first, it contended that the court misapplied the definition by not recognizing that ORS 163.355 pertains specifically to statutory rape, which is distinct from the broader definition of 'rape.' Statutory rape involves unlawful sexual activity with a person under the age of consent, regardless of consent, unlike 'rape' which typically implies force or lack of consent in a different context. Thus, the dissent argued that ORS 163.355 does not constitute a sub-category of 'rape' but rather a separate offense defined by the Oregon legislature.

The distinction between 'rape' and 'statutory rape' is clarified through various legal and dictionary sources. 'Rape' is defined as a crime involving non-consent, while 'statutory rape' involves sexual relations with someone below the age of consent, where consent is irrelevant. The Department of Justice characterizes 'rape' as forced sexual intercourse, which can occur through physical coercion or psychological manipulation. Oregon law further differentiates between degrees of rape, classifying first-degree rape as a Class A felony, punishable by up to 20 years in prison, while Rivas's conviction under ORS 163.355 is a Class C felony, with a maximum sentence of 5 years. The legal interpretation of whether Rivas's crime constitutes 'rape' under federal law, particularly in the context of deportation statutes, is critical. Congress expanded the definition of aggravated felonies in immigration law to include 'rape,' implying a level of severity akin to murder. However, it was noted that ORS 163.355 does not match the severity of murder, which raises questions about its classification as an aggravated felony.

Rivas's guilty plea does not classify as an 'aggravated felony' under 8 U.S.C. 1101(a)(43)(A). Consequently, Rivas's petition for review is granted, directing the Immigration Judge (IJ) to reopen removal proceedings and rescind the removal order. The document notes that several states, including Oregon, Alaska, Arizona, California, Nevada, and Washington, differentiate between generic 'rape' and 'statutory rape.' Examples include Alaska's first-degree sexual assault criminalizing non-consensual sexual penetration and sexual abuse of a minor defined by the age of the offender and the minor. Arizona's law describes sexual assault and provides varying penalties based on the minor's age. California defines rape with specific requirements for consent and distinguishes between different offenses involving minors. Nevada categorizes sexual assault as a category A felony while defining statutory sexual seduction for cases involving minors under 16.