Offense
Rape by fraud
Aggravated Felony (AF)
Might not be an AF as rape. See Advice
Section 286(f), 289(d) should have the same analysis
Crime Involving Moral Turpitude (CIMT)
Yes CIMT
Other Removal Grounds
No other removal ground, since this is not a crime of violence and does not have minor age as an element.
Advice and Comments
PC 261(a)(4)
See Advice on other pleas at PC 261, above
AF. The Ninth Circuit remanded to the BIA the question of whether rape by fraudulent representation, PC 261(a)(4)(D), meets the generic definition of rape. If it does not, then no conviction under 261(a)(4) is rape, because (4) is not divisible between the subsections (A) – (D).1Pen C § 261(a)(4) might not be an aggravated felony as rape. To be an aggravated felony as rape (INA § 101(a)(43)(A)), the elements of an offense must meet the federal generic definition of rape. PC 261(a)(4) is defined as sexual intercourse accomplished at the time the V is unconscious of the nature of the act due to various conditions, including intoxication, inability to understand, and, in 261(a)(4)(D), “due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose” (e.g., a doctor fraudulently represents that the conduct serves a medical purpose). The question is, does that come within the definition of “generic” rape?
In Valdez v. Garland, 28 F.4th 72, 81–82 (9th Cir. 2022), the Ninth Circuit found that 261(a)(4) is not divisible between its (A)–(D) subsections. Under the categorical approach, that means that if 261(a)(4)(D) or any other 261(a)(4) subsection of reaches conduct that is outside the generic definition of rape, then no conviction of 261(a)(4) is an AF as rape. The court noted that in 2012 the BIA had held that 261(a)(4)(D) does not meet the generic definition of rape. However, because of subsequent changes in California law and clarification of the categorical approach, the Ninth Circuit decided to remand the case to the BIA so that the BIA could newly address the question, “Does the generic federal definition of rape include consensual intercourse obtained through fraud?” Valdez at 81.
The BIA could go in either direction. The panel indicated that it would owe Chevron deference to the BIA’s holding. For this reason, defenders should advise clients there is no guarantee that 261(a)(4)(or (a)(4)(D)) will not be held to be the AF rape. However, if a plea to 261 can’t be avoided, then 261(a)(4) is the best choice. Removal defense advocates should preserve the argument that no conviction of 261(a)(4) is an aggravated felony.
Section 261(a)(4) should not be held a crime of violence, because it has no element of use or threat of physical force. Therefore, it would not be an AF as a crime of violence even if a year is imposed, and it would not be a deportable crime of domestic violence. It is a CIMT, and of course in any discretionary application it would be considered a very severe negative factor. The same language appears in 286(f) and 289(d).
Because the BIA could hold that this is rape and the Ninth Circuit could defer, defense counsel should not rely on this defense – but if 261 is inevitable, a plea to (a)(4) is best. Removal defense advocates should raise and preserve the argument pending a BIA and then Ninth Circuit opinion.