PC 261, 262, 286(i)

PC 261, 262, 286(i)

Offense

Rape

Aggravated Felony (AF)

Yes AF, regardless of sentence.1 See, e.g., Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000), finding that 261(a)(3) is the AF rape.
The BIA held that rape encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. It 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. Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

Crime Involving Moral Turpitude (CIMT)

Yes CIMT

Other Removal Grounds

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
A plea to a COV such as PC 245, 243(d), will be a deportable crime of DV if the V and D had a dating or other relationship covered by DV laws.

Advice and Comments

See PC 136.1(b)(1), 236/237, 243.4, PC 460(a) or (b), and probably 243.4 or 207 can take a sentence of more than 1 year without becoming an AF.

Adam Walsh Act. If V is a minor, conviction can prevent a USC or LPR from immigrating family members in the future. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

2020-05-19T17:54:01+00:00Updated January 29th, 2020|