Carlos Rene RIVAS-GOMEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, 441 F.3d 1072

TROTT, Circuit Judge. This petition for review raises the question of whether a conviction under Oregon Revised Statutes (“ORS”) § 163.355 (rape in the third degree), which criminalizes as a felony “sexual intercourse with another person under 16 years of age,” constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A). We conclude, as did the Immigration Judge (“IJ”), that it does. However, because the IJ erroneously applied a heightened standard when deciding whether to grant a waiver under 8 U.S.C. § 1159(c), we grant the petition in part and remand.

BACKGROUND Carlos Rene Rivas-Gomez (“Rivas”), a native and citizen of Guatemala, entered the United States in 1997 as an asylee. In 2001, Rivas pleaded guilty to felony rape in the third degree pursuant to ORS § 163.355. He was placed on three years’ formal probation under Oregon’s “Sex Offender Provisions.” These provisions made Rivas eligible under Oregon law for registration and supervision as a “predatory sex offender.” ORS § 181.585-181.592.

The charge arose out of a sexual relationship between Rivas, who was nineteen years old at the time, and a fourteen-year-old girl The Immigration and Naturalization Service (“INS”) initiated removal proceedings against Rivas pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which renders deportable “any alien who is convicted of an aggravated felony at any time after admission.” “Rape” is classified by federal law an aggravated felony. 8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony” as “murder, rape, or sexual abuse of a minor”).

The IJ terminated Rivas’s asylee status and ordered Rivas removed to Guatemala, finding that Rivas’s conviction for rape in the third degree constituted an aggravated felony, and denying Rivas’s application for a waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals summarily affirmed the immigration judge’s decision, rendering the IJ’s decision the final agency determination. Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005).

Rivas now appeals the IJ’s decision, arguing that his felony conviction for rape in the third degree under Oregon law does not fall within the ordinary, contemporary, and common meaning of the word “rape” because the crime does not require (1) force or fear or intimidation, and (2) a factual lack of consent. In supplemental briefing, Rivas argues also that the IJ erred when he applied a heightened standard to Rivas’s waiver application. STANDARD OF REVIEW We review de novo the issue of whether a particular offense constitutes an aggravated felony. See Park v. INS, 252 F.3d 1018, 1021 (9th Cir.2001).

Purely legal questions are also reviewed de novo. See de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). DISCUSSION We have jurisdiction to review questions of law raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). Therefore, we have jurisdiction to consider Rivas’s claims (1) that his criminal conviction does not constitute an aggravated felony, see Valencia v. Gonzales, 439 F.3d 1046, 1047 (9th Cir.2006), and (2) that the IJ erroneously applied the law in denying his waiver application. A.

Aggravated Felony In determining whether Rivas’s conviction qualifies as an aggravated felony, we apply the analytical model set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States, v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.2004). Under the Taylor categorical approach, “the issue is not whether [the defendant’s] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the statute the defendant violated] constitutes an aggravated felony.” United States v.

Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000) (alterations and in original) (quoting United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir.1994)). The Taylor categorical approach requires that we look to the “ordinary, contemporary, and common meaning” of the word “rape” to determine whether the conduct prohibited by ORS § 163.355 falls within that definition. See United States v.

Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999) (“[W]e must interpret the undefined term ‘sexual abuse of a minor’ by ‘employing the ordinary, contemporary, and common meaning of the words that Congress used.’ ”) (quoting Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999)). In so doing, we “look solely to the statutory definition of the crime, not to the name given to the offense or to the underlying circumstances of the predicate conviction.” Baron-Medina, 187 F.3d at 1146.

We have previously looked to Black’s Law Dictionary for the contemporary meaning of the word “rape,” as well as for other terms used in state statutes. See United States v. Yanez-Saucedo, 295 F.3d 991, 996 (9th Cir.2002) (citing Black’s Law Dictionary for the contemporary definition of “rape”); Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir.2000) (same); United States v. Pallares-Galan, 359 F.3d at 1100 (defining “sexual abuse”).

Black’s Law Dictionary defines “rape” as “[u]nlawful sexual activity ... with a person ... without consent and usu[ally] by force or threat of injury.” Black’s Law Dictionary 1288 (8th ed.2004) (emphasis added). Thus, the ordinary, contemporary, and common legal meaning of “rape”—-the gravamen of the offense—“contains at least the following elements:” that the defendant engage in sexual activity with another person and that the sexual activity is (1) unlawful and (2) without consent.

We conclude that the full range of the conduct prohibited by Oregon’s third-degree rape statute falls squarely .within the ordinary, contemporary, and common meaning of the word “rape.” First, the Oregon statute prohibits “sexual intercourse with another person under 16 years of age.” ORS § 163.355.

The statute criminalizes sexual intercourse with a minor, rendering such conduct “unlawful.” Second, as to the “without consent” element of the contemporary rape definition, Oregon’s criminal code provides that “[a] person is considered incapable of consenting to a sexual act if the person is ... [ujnder 18 years of age.” ORS § 163.315(l)(a); see also Wilson v. Tobiassen, 97 Or.App. 527, 777 P.2d 1379, 1384 (1989) (stating that “a person under eighteen is incapable of consenting to a sexual act”).

Sexual activity with a person under the age of eighteen is, as a matter of Oregon law, “without consent.” Therefore, Oregon’s third-degree rape statute, which prohibits sexual intercourse with persons under the age of sixteen, contains an inherent “without consent” element. With respect to this element of rape, we see no material difference in this context between rape where the victim expresses a lack of consent, or is unconscious or asleep or duped, on one hand, and rape where the victim because of youth and vulnerability is, as a matter of law, incapable of consenting, on the other.

Nevertheless, Rivas argues that his conviction does not fall within the ordinary, contemporary, and common meaning of the word “rape” because the statute under which he was convicted does not contain a requirement that the victim’s resistance be overcome by force or fear. However, we have already rejected the argument that the contemporary definition of rape includes a forcible compulsion element. See Yanez-Saucedo, 295 F.3d at 996 (concluding that “third-degree rape under [Washington Revised Code] § 9A.44.060(

a) fits within a generic, contemporary definition of rape, which can, but does not necessarily, include an element of physical force beyond that required for penetration”) (emphasis added). In addition, the controlling federal statute does not draw an exclusionary distinction between the different ways that the crime of rape can be committed. As a general rule, neither force nor fear is an essential element of rape. In California, for example, rape is described as an “act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:”

(1) Where a person is incapable, because of a mental disorder or developmental disability, of giving legal consent.

(2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of ... injury on the person of another.

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: (

A) Was unconscious or asleep. (

B) Was not aware, knowing, perceiving, or cognizant that the act occurred. (

C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (

D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(5) Where a person submits under the brief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. Cal.Penal Code § 261. We are informed in this respect by our holding in Castro-Baez v. Reno, 217 F.3d at 1059, that a conviction under

Section 261(a)(3) of the California Penal Code for engaging in sexual intercourse with a victim who could not resist because of the ingestion of drugs or other intoxicants qualified as rape pursuant to

Section 1101(a)(43)(A), and was therefore an aggravated felony. We said, “In ordinary usage, rape-is understood to include the act of engaging in non-consensual sexual intercourse with a person whose ability to resist has been substantially impaired by drugs or other intoxicants.” Id. at 1059. Furthermore, under California law, a person 21 years of age or older who engages in

an act of unlawful sexual intercourse with a minor who is under 16 years of age is subject to either felony or misdemeanor prosecution and imprisonment of up to four years in prison. Cal.Penal Code § 261.5(d). The title of California’s crime is “Unlawful Sexual Intercourse,” but, as we learn from Baron^-Medina, we look to the conduct proscribed, not simply the title of the statute.

In Taylor, as here, the defendant attempted to subdivide Congress’ use of a word referencing a crime, i.e. “burglary,” into various subclasses, and to narrow or to restrict the term “burglary” to especially dangerous subclasses of burglaries, such as those where the “offender is armed, or the building is occupied, or the crime occurs at night.” Id. at 588, 110 S.Ct. 2143. This attempt failed.

The Court said, Congress presumably realized that the word “burglary” is commonly understood to include not only aggravated burglaries, but also run-of-the-mill burglaries involving an unarmed offender, an unoccupied building, and no use or threat of force. Id. at 597,110 S.Ct. 2143.

Looking at the full range of conduct covered by the statute here, it is sexual intercourse with a youthful person in need of protection and without adequate armor against the act, a person who, by virtue of age, vulnerability, and immaturity with respect to an appreciation of the potential consequences of the prohibited behavior, has been shielded by law from the serious ramifications and hazards of exploitive sexual intercourse.

The hazards of this behavior inflicted upon a minor, which include the physical risks of sexually transmitted disease as well as the burdens of teenage unmarried pregnancy, have been determined by Oregon’s legislative and executive branches of government to be serious enough to the present and future health and welfare of the victim taken advantage of to render the victim incapable of consenting to the act as a matter of law.

In addition, the conduct proscribed by law is sufficiently egregious that a person who violates it becomes a felon and is subject to the loss of liberty, with sexual offender supervision and registration conditions attached. It is the conduct proscribed by the Oregon statute which violates the physical integrity of the victim that drives our analysis, not the label. The petitioner has not brought to our attention any state cases wherein a person has been convicted of this crime without directly engaging in the prohibited conduct.

The crime, unlike the crime we analyzed in Palla/res-Galan, is not a simple misdemeanor; and it does not encompass a range of conduct so extensive that it includes peripheral behavior equivalent to “offering minor females a ride home, driving in the opposite direction, and refusing to let them out of the car until they have escaped,” or “repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her.” 359 F.3d at 1101.

Our respected dissenting colleague appears to have been led in his analysis by his judgment that rape of this kind is not generally regarded as serious as forcible rape. True, the punishment may be different, but this difference is not dispositive because all felony rape — whatever the methodology of the offender — appears to us to fall above the line that might separate aggravated from non-aggravated rape felonies — if there is such a thing.

In this respect, we do not disagree at all with our dissenting colleague’s statements that “[ajssimilating Rivas’s crime to generic rape is in a sense understandable,” and that “Rivas’s crime is called a type of rape.” Our recent decision in Valencia v. Gonzales, 439 F.3d 1046 (9th Cir.2006) does not compel a different conclusion.

In Valencia, we considered only whether a California felony conviction for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” Cal.Penal Code § 261.5(c), constituted a “crime of violence” under a different subsection of 8 U.S.C. § 1101(a)(43), subsection (F). We concluded that the petitioner’s conviction was not a “crime of violence” under subsection (

F) because it did not involve a “substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. at 1049. We did not decide whether statutory rape was “rape” and thus an aggravated felony under subsection (A). Because ORS

section 163.355 prohibits sexual activity that is both (1) unlawful and (2) without consent as a matter of law, we conclude that a conviction under that statute falls within the ordinary, contemporary, and common meaning of the word “rape.” Rivas’s conviction therefore constitutes an aggravated felony within the meaning of 8 U.S.C. § 1101(a)(43)(A). B. Waiver Standard Despite his aggravated felony conviction, Rivas remained eligible to apply for adjustment of status.

However, because his conviction was for a “crime involving moral turpitude,” 8 U.S.C. § 1182(a)(2)(A)(i)(I), Rivas was not admissible unless he obtained a waiver under 8 U.S.C. § 1159(c), which provides that the Attorney General “may waive” application of § 1182 “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” Rivas asserts that the IJ erred when he applied the heightened, “extreme hardship” standard when he denied Rivas’s waiver application, raising two legal arguments. First, he asserts that in Matter of Jean, 28 I. & N.

Dec. 378 (A.G.2002), the Attorney General exceeded his statutory authority by imposing a heightened waiver standard for aliens convicted of violent or dangerous crimes. Second, he argues that the IJ erred in applying the heightened standard in his case without first determining that Rivas’s aggravated felony conviction was for a violent or dangerous crime. Jean concerned a § 1182 waiver for a female alien who had been convicted of second-degree manslaughter in connection with the death of a nineteen-month-old child that had been left in her care.

Reversing the BIA’s grant of the waiver, the Attorney General determined that “evaluations of requests for waivers of inadmissibility ... cannot ... focus solely on family hardships, but must consider the nature of the criminal offense that rendered an alien inadmissible in the first place.” Id. at 383.

The Attorney General stated that “violent or dangerous individuals” would not be granted a waiver “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship.” Id. Rivas’s first argument that the Attorney General exceeded statutory authority by adopting a heightened standard is foreclosed by our decision in Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991).

Ayala-Chavez upheld the Attorney General’s requirement that waiver applicants under former § 212(c), 8 U.S.C. § 1182(c), with serious drug offense convictions demonstrate “outstanding equities.” Id. Under Ayala-Chavez the Attorney General has broad discretion to grant or deny waivers and may establish general standards governing the exercise of such discretion “as long as these standards are rationally related to the statutory scheme.” Id.

Here, the Attorney General’s heightened waiver standard for aliens convicted of violent or dangerous crimes is rationally related to the national immigration policy of not admitting aliens who would be a danger to society. The second argument raised by Rivas, that the IJ erred when he applied the Jean “extreme hardship requirement” without first determining that Rivas’s conviction was for a “violent or dangerous” crime has merit.

While the government argues that the IJ merely balanced the equities when he denied the waiver, the IJ assumed from the beginning of the proceeding that Rivas’s conviction triggered the Jean analysis, and concluded by stating: So the Court wishes to make its analysis plain. I believe that [the Jean] standard applies to him and the primary basis for my decision, which I cannot grant it, is because I do not believe that he had met that burden. I am not denying [the waiver] because of his either lack of accounting for the crime and the other things the Court is commenting on those.

But the Court is denying it because it does not meet the hardship standard indicated by the Attorney General. Thus, we consider Rivas’s legal argument. In Jean, the Attorney General did not impose the heightened “extreme hardship” standard on all aliens with aggravated felony convictions, only on those who “engage in violent criminal acts.” Jean, 23 I. & N. Dec. at 384. The determination in Jean was fact-based, not categorical. Moreover, in a subsequent decision the BIA specifically limited Jean’s heightened waiver requirement to “dangerous or violent crimes.” In re K-A-, 23 I. & N. Dec. 661, 666 (BIA 2004).

Therefore, the IJ erred when he applied the “extreme hardship” standard without first making a determination based on the facts underlying Rivas’s conviction that Rivas’s crime was violent or dangerous. Thus, we grant the petition in part and remand for further proceedings consistent with this opinion. PETITION DENIED IN PART AND GRANTED IN PART. REMANDED. . Pursuant to the Department of Homeland Security Reorganization Plan, as of March 1, 2003, the INS was abolished and its functions were transferred to the Department of Homeland Security. See 6 U.S.C. § 542. .

In Taylor, the Court followed this analytical process and determined that, "[a]lthough the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. . The BIA also stated that "even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.” Id.