[00:00:20] Speaker 04:
Good morning, Your Honors, and may it please the court, Alyssa Cooley-Yonazawa for petitioner.

[00:00:25] Speaker 04:
I would like to reserve three minutes for rebuttal, please.

[00:00:28] Speaker 04:
This case presents a recurring question among the circuits.

[00:00:32] Speaker 04:
What did Congress mean in 1996 when it added rape as an aggravated felony to the INA?

[00:00:38] Speaker 04:
Four circuits have answered that question so far in terms of Matter of Keighley, and four have disagreed with the BIA's interpretation in Matter of Keighley.

[00:00:46] Speaker 04:
The fifth, sixth, eighth, and most recently, eleventh circuits have excluded digital penetration from the generic definition of rape.

[00:00:54] Speaker 04:
The government still asks this court to disagree with sister circuits, ignore the plain, unambiguous language of the INA, and to rewrite the generic definition to include conduct on the outer contours of the Nevada statute, conduct that is overbroad in several respects.

[00:01:11] Speaker 02:
When determining the generic definition of aggravated felonies as always we must start with the text in 1996 You go ahead judgment, okay, so Even if I were to agree with you as to Whether our sister circuits are correct

[00:01:34] Speaker 02:
I believe that we as a three-judge panel, and I apologize if I'm going to mispronounce the name of the petitioner in the 2018 case, but I believe we're bound as a three-judge panel under Miller v. Gammie by El Makhzoumi v. Sessions.

[00:01:55] Speaker 02:
I think that this issue was clearly before the panel.

[00:02:00] Speaker 02:
I think the panel's ruling was clear, including with its reliance on Healy.

[00:02:11] Speaker 02:
So how can we, as a three-judge panel, rule the way you want, given the Al-Lakzoumi case?

[00:02:21] Speaker 04:
Thank you, Your Honor.

[00:02:22] Speaker 04:
In El Mucasumi, as the court knows, it was a California sodomy statute.

[00:02:27] Speaker 04:
In Castro Bias in 2000, this court already examined the generic definition of rape in the INA, and it concluded that the generic definition was non-consensual sexual intercourse with a person.

[00:02:41] Speaker 04:
And then in 2018, under El Mucasumi, the court expanded that definition to include anal intercourse as part of the generic definition.

[00:02:48] Speaker 04:
The matter before the court right now is the Nevada sexual assault statute, which is far broader than the statute that was at issue in El Micazumi in 2018 and also in Castro Baez in 2000.

[00:03:02] Speaker 04:
The minimum conduct under the Nevada sexual assault statute is not whether vaginal intercourse is part of the generic definition or anal intercourse is part of the generic.

[00:03:11] Speaker 02:
I know my colleague has a question, but sort of counsel where I am on this is

[00:03:16] Speaker 02:
Maybe an in-bank court would agree with you.

[00:03:19] Speaker 02:
Maybe the Supreme Court would agree with you.

[00:03:23] Speaker 02:
But from my perspective, we're bound by El-Kazumi.

[00:03:27] Speaker 02:
And I don't find your argument as the way we can distinguish it convincing.

[00:03:32] Speaker 02:
But I'm able to judge Sanchez on the question.

[00:03:34] Speaker 01:
That was gonna be my first question of whether we're bound.

[00:03:39] Speaker 01:
El-Mexoumi was dealing with a sodomy statute, a California sodomy statute, so in expanding its notion of penetrative sexual conduct from Castro-Bias, it was reaching the question of, with a penis, but it didn't reach the issue of digital penetration, did it?

[00:04:03] Speaker 01:
But at least I would think that we're bound with the notion that whether it's vaginal or anal intercourse, that is covered by the generic definition of rape.

[00:04:19] Speaker 01:
Would you would you agree with that?

[00:04:20] Speaker 04:
I would agree that vaginal intercourse is

[00:04:24] Speaker 01:
Our position is that the generic definition of rape is- No, I mean under El Mekzumi, I'm trying to figure out what binds us, what binds this panel and what does not.

[00:04:36] Speaker 04:
In El Mekzumi, the court was referencing a 2014 Black's Law dictionary that included anal intercourse in the generic definition, or in the definition of rape.

[00:04:49] Speaker 04:
Respectfully, in

[00:04:51] Speaker 04:
The definition that the court referred to was 2014.

[00:04:54] Speaker 04:
It was the Black's law edition that was not available at the time that Congress added.

[00:04:59] Speaker 02:
But that's an argument as to why it got it wrong.

[00:05:03] Speaker 04:
Correct, but we would still, even if this court would need to go en banc to adjust that decision to make a clarification in the El Muczumi case about the contemporaneous definition of rape at the time that Congress added it to the INA in 1996 and not using a source that wasn't available to Congress at that time,

[00:05:23] Speaker 04:
The Nevada statute is still much broader than the statute that was at issue in El Makizumi.

[00:05:28] Speaker 04:
The Nevada statute, the minimum conduct under the statute is digital or object penetration on an animal, not even of a person.

[00:05:36] Speaker 04:
And so the Nevada statute is broader than the definition in Castro-Bias.

[00:05:40] Speaker 02:
Have you pointed in that area to any case which Nevada has ever brought under this statute for some act with an animal?

[00:05:50] Speaker 04:
I know your honor we did not point to any case in the brief but that is because the Nevada statute is over brought in that regard on its face.

[00:05:58] Speaker 02:
But you've answered my question you have not found any case either in an appellate record or a trial court record that you brought to our attention where that was a charge actually brought by a prosecutor in Nevada.

[00:06:11] Speaker 04:
Not at this time, Your Honor.

[00:06:13] Speaker 04:
But again, it is over brought on its face.

[00:06:15] Speaker 04:
The Nevada statute says that penetration, forced penetration on another person or where a person forces another person to make a penetration on themselves or on a beast, on a beast.

[00:06:29] Speaker 04:
And in 1996, at the time that Congress added rape to the INA,

[00:06:35] Speaker 04:
no statute, no rape statute included forced penetration on a beast.

[00:06:40] Speaker 04:
And now the government points to some statutes in 1996 of the states that included penetration by a beast, but that is not the same as the language that the Nevada legislature used.

[00:06:52] Speaker 02:
But also your argument is that the agency's decision in Healy was just wrong.

[00:07:00] Speaker 04:
Yes, that is our argument.

[00:07:02] Speaker 02:
And that the El Mukzumi panel was also just wrong in relying on Keighley.

[00:07:08] Speaker 04:
Your Honor, the El Mukzumi panel didn't necessarily engage with matter of Keighley in the same ways that the 5th, 8th, 6th, and 11th Circuits did.

[00:07:18] Speaker 02:
Yeah, I agree with you.

[00:07:20] Speaker 02:
But it did engage with it.

[00:07:22] Speaker 02:
And it did say, for example, after

[00:07:24] Speaker 02:
An exhaustive survey of state rape and sexual assault laws, the BIA concluded that the generic definition of rape includes, at a minimum, acts of vaginal, anal, and oral intercourse.

[00:07:39] Speaker 02:
And we relied on that in this case.

[00:07:42] Speaker 02:
Perhaps wrongly, perhaps not, but that's part of the holding, right?

[00:07:47] Speaker 04:
Yes, but the question is, what does intercourse capture?

[00:07:51] Speaker 04:
The Elma Kazumi court did refer to the BIA when it said, at a minimum, generic rape includes vaginal, anal, or oral intercourse.

[00:08:02] Speaker 04:
What does intercourse mean?

[00:08:04] Speaker 04:
And I think this case presents an opportunity for the court to clarify what

[00:08:09] Speaker 04:
what intercourse, sexual intercourse, meant when the Ninth Circuit used it, both in Castro-Bias and El Macazumi.

[00:08:16] Speaker 04:
And I don't think that the court needs to go en banc to make that clarification, especially in light of later doctrinal developments, like S.E.O.L.

[00:08:26] Speaker 04:
Cantana, who laid out the steps, the statutory interpretation steps.

[00:08:32] Speaker 00:
I want to make sure we're not ships passing in the night.

[00:08:34] Speaker 00:
I read El Macazumi

[00:08:36] Speaker 00:
and I may be mispronouncing it, as holding that the ordinary, contemporary, and common meaning of rape as used in the statute is not limited to vaginal intercourse, but is inclusive of any physical sexual conduct, especially involving the penetration of the vagina by the penis.

[00:08:57] Speaker 00:
Do you agree that l-moxomy stands for that proposition?

[00:09:05] Speaker 04:
I agree that it does, but what's important to note in that case is that the Black's law dictionary that the court was referring to was issued in 2014 and the definition that it that it relies on had varied substantially since 1990.

[00:09:21] Speaker 04:
the edition that the Castro-Bias Court relied on.

[00:09:24] Speaker 04:
And so while it considered the same source, Black's Law Dictionary, for that definition, it was a different version almost 20 years in the future.

[00:09:33] Speaker 00:
The 1999 version of Black's Law Dictionary, though, was substantially the same as what the Elmach-Zaomi Court relied upon from later, correct?

[00:09:49] Speaker 04:
The 1999 edition of Blacks, which also post-dates the addition of rape as an aggravated felony, though by many years, starts with the common law definition.

[00:10:07] Speaker 04:
Unlawful sexual intercourse is committed by a man with a woman, not his wife, through force and against her will.

[00:10:12] Speaker 04:
The common law crime of rape required at least a slight penetration of the penis into the vagina.

[00:10:17] Speaker 04:
The second definition,

[00:10:18] Speaker 04:
which was added since 1990, and again, this definition wasn't available in 1996 when Congress added rape as an aggravated felony, said unlawful sexual activity, especially intercourse with a person, usually a female without consent, and usually by force or threat of injury.

[00:10:37] Speaker 04:
so usually if the definition of rape usually included forced sexual intercourse of the insertion of the male sex organ into the female organ can we say that Congress in 1996 when an added rape as an aggravated felony took the impression that sometimes usually it's its penetration by a penis into a vagina or a

[00:11:03] Speaker 00:
But you're back to arguing why Elmach-Zaumi was wrong because it was looking at the wrong year.

[00:11:10] Speaker 04:
Yes, that's correct.

[00:11:11] Speaker 00:
And yet we can't do anything about that.

[00:11:16] Speaker 00:
It is binding precedent for us.

[00:11:18] Speaker 04:
That's correct, this panel can't do anything about the fact that Elma Kazumi relied on the wrong dictionary definition almost 20 years in the future.

[00:11:28] Speaker 01:
Well, this panel did rely on a different year of the Black's Law Dictionary than Castro Baez had, because Castro Baez actually looked at the 1990 version of the

[00:11:39] Speaker 01:
Black's Law Dictionary for its source.

[00:11:43] Speaker 01:
So I don't know that we're necessarily constrained to just have to rely on the 2014 definition, but I guess here's my question.

[00:11:51] Speaker 01:
all these different definitions are a little bit all over the map.

[00:11:54] Speaker 01:
Your definition doesn't seem to coincide with a common law definition of rape.

[00:12:01] Speaker 01:
Would you agree?

[00:12:02] Speaker 01:
Because you're expanding it beyond just vaginal intercourse between a man and a woman.

[00:12:08] Speaker 01:
So where are you getting your definition from?

[00:12:12] Speaker 04:
Your honor, our definition is the common law definition.

[00:12:16] Speaker 02:
So under your definition,

[00:12:18] Speaker 02:
Any statute that, for example, considered rape as a woman raping a woman or a man raping a man would be overbroad because the common law recognized rape as a crime of a man having vaginal intercourse with a woman, yes?

[00:12:42] Speaker 03:
Yes, that'd be correct.

[00:12:43] Speaker 02:
So every state.

[00:12:46] Speaker 02:
or virtually every state includes within rape that it can be committed by a person of any gender, yes?

[00:12:55] Speaker 03:
That's correct, Your Honor.

[00:12:57] Speaker 02:
So your definition would throw those all out?

[00:13:00] Speaker 04:
Well, we have to look at what Congress intended.

[00:13:05] Speaker 02:
But my question is your definition would throw all those out, yes?

[00:13:08] Speaker 04:
Yes.

[00:13:09] Speaker 02:
All right.

[00:13:10] Speaker 02:
On a completely different topic and quite possibly an irrelevant topic, and I apologize, but I do want to just factually get this.

[00:13:23] Speaker 02:
As I understand it, your client's request for deferral under CAT was granted.

[00:13:35] Speaker 02:
Is that still the status quo?

[00:13:38] Speaker 03:
Yes, your honor.

[00:13:38] Speaker 02:
So your client does not face, at this point, deportation?

[00:13:42] Speaker 04:
Currently no, but as Your honors may know that the the government has still been deporting cat recipients and withholding of removal sippy recipients to third countries And so he could still be deported just as he faced any type of threat of that I know that you may not be Up on all of those facts, and I'm gonna ask your friend this question too, but as far as you know I

[00:14:08] Speaker 03:
Not at this time, Your Honor.

[00:14:10] Speaker 02:
And I would like to reserve... Yeah, we've taken up an awful lot of your time.

[00:14:13] Speaker 02:
How much did you ask for for the rebuttal?

[00:14:15] Speaker 03:
I asked for three, Your Honor.

[00:14:16] Speaker 02:
We'll give you three minutes.

[00:14:17] Speaker 02:
Thank you, Counsel.

[00:14:35] Speaker 05:
Good morning, Your Honors, and may it please the Court, Melissa Lott on behalf of the United States Attorney General.

[00:14:41] Speaker 05:
This Court should deny the petition for review because Nevada sexual assault is generic aggravated felony rape.

[00:14:48] Speaker 05:
Rape is a common law offense, but the common law version of the offense was obsolete by the time rape was added to the INA in 1996.

[00:14:56] Speaker 05:
So we have to look at what the commonly understood elements of rape are, and that is sexual intercourse without consent.

[00:15:03] Speaker 05:
At the time rape was added in 1996, Congress would have understood rape to have its generic contemporary meaning as understood in most states under the Supreme Court's decision in Taylor.

[00:15:15] Speaker 05:
And to understand what the meaning was in the states, we have to look past the label that the states use.

[00:15:21] Speaker 01:
Council, can we start actually with our Ninth Circuit precedent and to get your views on to what extent are we bound by the prior panel's decisions?

[00:15:32] Speaker 01:
What is your view of El Mekzumi and its binding effect on this panel?

[00:15:37] Speaker 05:
Yes, Your Honor.

[00:15:37] Speaker 05:
In El Mekzumi, the court decided that non-consensual anal intercourse was generic rape.

[00:15:49] Speaker 05:
It cited matter of Keeley favorably.

[00:15:53] Speaker 05:
However, it didn't affirmatively reach the issue of digital penetration.

[00:15:58] Speaker 01:
Which is the issue before us.

[00:15:59] Speaker 01:
Correct.

[00:16:00] Speaker 01:
So in your view, we're not bound by it because there's a bit of an open space with that issue.

[00:16:05] Speaker 05:
I would agree that El Matsumi is the starting point and it is binding on the issue of that aggravated felony rape includes anal intercourse, but it does not because it doesn't address the issue of digital intercourse.

[00:16:19] Speaker 01:
Well, let me ask you this.

[00:16:21] Speaker 01:
It's clear that there's at least a conflict between El Maksumi and the Fifth Circuit with respect to that point, because as Gonzalez said, it's just common law rape, which only occurs between a man and a woman and excludes sodomy.

[00:16:38] Speaker 01:
Would you agree with that?

[00:16:39] Speaker 05:
Yes, and I would also agree that Barry, the recent 11th Circuit case, the 11th Circuit also said that they are adopting a common law definition.

[00:16:52] Speaker 01:
Okay, and so what is your, because there are now four circuits that have disagreed with the government's position on whether rape encompassed broader forms of sexual assault, sexual battery, other things, and Barry's the most recent iteration of that.

[00:17:12] Speaker 01:
So why are all those courts wrong in your view?

[00:17:17] Speaker 05:
In the government's view, those courts are wrong because they, I think, two things.

[00:17:25] Speaker 05:
One is they are starting from the assumption that because

[00:17:36] Speaker 05:
They're starting from the assumption that rape, I'm sorry, let me back up.

[00:17:45] Speaker 01:
Well, let me, here, I'll just, because I've spent some time with this, thinking about this.

[00:17:50] Speaker 01:
The main points from those circuit courts seem to be, start with the plain language of the INA, and there's the word rape, and then there's

[00:17:58] Speaker 01:
sexual assault of a minor, and if Congress intended for those to be synonymous, then it would make sexual assault of a minor superfluous.

[00:18:08] Speaker 01:
And there's no cross-referencing.

[00:18:11] Speaker 01:
And then you have other sort of dictionary definitions, which I think, a little bit of a moving target, but they generally don't ever get into digital penetration when they talk about things, at least not explicitly.

[00:18:25] Speaker 01:
And then thirdly, depending on how you look at the different state surveys, if you were to just look at the states that have rape in a codified way, virtually none of them have digital or object penetration in those provisions.

[00:18:41] Speaker 01:
And where they do criminalize it, it's in these broader provisions for sexual assault and sexual battery.

[00:18:46] Speaker 01:
So I think I'm summarizing some of the main pieces of what the through line with the different circuit courts.

[00:18:52] Speaker 01:
So maybe you can kind of react to those and tell me why those are wrong.

[00:18:55] Speaker 05:
Yes, so rape and sexual abuse, as it's used in sexual abuse of a minor in the INA, those do have distinct meanings.

[00:19:06] Speaker 05:
Rape is sexual intercourse without consent.

[00:19:09] Speaker 05:
That's the generic meaning.

[00:19:11] Speaker 05:
And sexual abuse of a minor, sexual abuse, it's much broader.

[00:19:16] Speaker 05:
It can include those sexual contact crimes.

[00:19:19] Speaker 05:
If you just focused on the states,

[00:19:26] Speaker 05:
When you look at the states, because well before 1996, so many states had relabeled the crime of rape.

[00:19:35] Speaker 05:
And they did that because they wanted to emphasize that it was a crime of violence, not a crime of uncontrollable passion.

[00:19:41] Speaker 05:
And so you had 26 states plus Washington DC that relabeled the crime.

[00:19:48] Speaker 05:
So they called it things like sexual assault, sexual battery, again, to emphasize that it was violent.

[00:19:55] Speaker 05:
And they overhauled all of their sexual crimes.

[00:20:09] Speaker 01:
But I guess what's interesting about that is it's kind of the meaning behind that is almost in the eye of the beholder because some of these circuits have said yes, we agree that these things have been expanded and that's a reason to indicate that Congress understood the difference between rape and these broader definitions for sexual assault and other things.

[00:20:29] Speaker 01:
And so when Congress used the word rape textually in the INA, it had a specific meaning, something either akin to or closer to the common law meaning.

[00:20:39] Speaker 05:
And so, Your Honor, where I think that the other courts, what they have overlooked is that in those states that relabeled the crime, they didn't legalize rape, they didn't get rid of rape.

[00:20:54] Speaker 05:
What they did was they just renamed the offenses, but you can still find, you can still identify rape within those offenses.

[00:21:02] Speaker 05:
And you can do that by finding the sexual intercourse or sexual penetration crimes.

[00:21:06] Speaker 05:
So some states use the definition of sexual intercourse, some use sexual penetration.

[00:21:10] Speaker 05:
It's just states use one or the other.

[00:21:12] Speaker 05:
And so you can find it by looking at the definition.

[00:21:16] Speaker 05:
And then they set the rape crimes out either through the definition, through grading them in different degrees.

[00:21:25] Speaker 05:
And so you can differentiate the rape crimes in these state statutes

[00:21:30] Speaker 05:
from the sexual contact crimes, those crimes that would fall under sexual abuse of a minor.

[00:21:36] Speaker 01:
But this is, I guess I would say this is the concern that I have with this, is the government seems to have chosen, and the BIA under the matter of Keeley, a certain line to draw somewhere and then gone and looked at state statues to kind of fit that category.

[00:21:53] Speaker 01:
But to take the El-Mexoumi definition of sexual touching, that could be much broader than penetration, for example.

[00:22:00] Speaker 01:
And as you just said, there are different degrees to sexual assault crimes in different states.

[00:22:07] Speaker 01:
So why is it that we should impute into Congress this particular line drawing that the government chose as opposed to something else?

[00:22:17] Speaker 01:
Because sexual touching, sexual activity, those are all pretty malleable phrases.

[00:22:23] Speaker 05:
Well, Your Honor, I would push back on that just a little bit.

[00:22:26] Speaker 05:
I don't think that the government is doing this line drawing.

[00:22:31] Speaker 05:
I think that when you look at the Supreme Court's decision in Taylor, if a common law

[00:22:39] Speaker 05:
If a common law version of a crime has become obsolete, then the Supreme Court has said that that's not how the term should be construed.

[00:22:48] Speaker 05:
And this is the case with rape.

[00:22:50] Speaker 05:
So we know that the common law version of the crime, carnal knowledge of a woman forcibly against her will, that is obsolete.

[00:22:59] Speaker 05:
And in fact, well before 1996, most states had gotten rid of the

[00:23:04] Speaker 05:
the Common Law Act as the meaning of rape in their statutes.

[00:23:11] Speaker 05:
Only 12 states use the Common Law Act in their statutes.

[00:23:19] Speaker 05:
And so, but we know that the core of the offense, the core actus reus is sexual intercourse without consent.

[00:23:26] Speaker 05:
And so that is the line drawing.

[00:23:27] Speaker 05:
That is the core of rape.

[00:23:30] Speaker 05:
And so you can see that in, if you look at all of the states, that you can go by the definition.

[00:23:36] Speaker 05:
And so even if they've called it different things, that is what rape is.

[00:23:40] Speaker 05:
And if you look at the Taylor, if you look at the Taylor decision, you know, the Supreme Court has said that

[00:23:48] Speaker 05:
that the generic contemporary meaning of a term, it has to be defined separate from the vagaries of state law labels.

[00:24:05] Speaker 05:
And in Taylor, they give the example of Michigan burglary, which had been

[00:24:14] Speaker 05:
you know, placed in, it had been renamed breaking and entering, and you know, graded into different.

[00:24:22] Speaker 01:
Well, I mean, would you agree that if we were to conclude that digital penetration is part of the definition of genetic rape, we would be the first circuit to do that?

[00:24:32] Speaker 01:
We would be creating that split on this particular point about digital and object penetration?

[00:24:39] Speaker 05:
I would agree with that, Your Honor, but I would also, I would say that that is the correct result because the majority of states, that is how they categorize it.

[00:24:49] Speaker 05:
They categorize it as sexual intercourse or sexual penetration.

[00:24:52] Speaker 05:
They do not put it into the broader category of sexual contact, which would fall under the sexual abuse of a minor crime.

[00:25:00] Speaker 02:
So am I reading your brief correctly that the government is asking us

[00:25:04] Speaker 02:
putting aside the issue of whether or not El Maksoumi is binding on us that the government is asking us, I think you have it, 15 or 16 in your brief to afford Skidmore deference to the Keeley decision?

[00:25:20] Speaker 05:
I think that, yes, Your Honor, I think that either you could reach it as a best read issue, but also, yes, I think that because it's a persuasive decision,

[00:25:33] Speaker 05:
because it is the best read.

[00:25:35] Speaker 05:
I think that you could also give it Skidmore respect.

[00:25:48] Speaker 02:
And I'm still not in the same place as the government is on whether El Maksumi is binding, but I thank you for your candor as to the government's position.

[00:25:59] Speaker 02:
The question I asked your friend is, are you aware of any facts which would indicate that the government is seeking to deport the petitioner?

[00:26:07] Speaker 05:
Your Honor, that is, so to my knowledge, that's not at issue at this time.

[00:26:16] Speaker 05:
And if you need anything further, I'm happy to follow up.

[00:26:20] Speaker 00:
So I'm going to follow up on Judge Sanchez's questions.

[00:26:27] Speaker 00:
Your argument here before us, for you to prevail, is your argument logically inconsistent with the holdings from the other four circuits, Perez, Keeley, Keto, and the Eighth Circuit, and Barry?

[00:26:46] Speaker 00:
it absolutely logically inconsistent?

[00:26:49] Speaker 00:
Is there any threading the needle?

[00:26:53] Speaker 00:
Is there any way to say are you arguing necessarily that those four circuits got it wrong?

[00:27:00] Speaker 05:
I'm arguing that those circuits read the states that relabeled rape, that they read those states as not punishing rape as discreet offenses, that they read those as just sort of catch-all sexual assault or sexual battery crimes.

[00:27:24] Speaker 05:
So I think that because those

[00:27:29] Speaker 05:
The other circuits, they didn't consider the states that had relabeled the crime, and they looked at a state survey of only the states that kept the rape label.

[00:27:47] Speaker 05:
Then that just, that, I guess,

[00:27:52] Speaker 05:
that's a completely different, you get completely different numbers with a state survey that way.

[00:27:56] Speaker 05:
And so it's a completely different way.

[00:27:57] Speaker 00:
But I'm not sure what your answer to my question was.

[00:27:59] Speaker 00:
If we rule in your favor, if we affirm, are we necessarily setting up a circuit split, or is there something different about this case where your argument can be, yes, those four circuits got it right, but you can still win here because of something?

[00:28:16] Speaker 00:
Is there any something, or is,

[00:28:21] Speaker 00:
I think that's a good question.

[00:28:21] Speaker 00:
If you win is there necessarily a circuit split on the issue of digital penetration.

[00:28:25] Speaker 05:
Yes, there is necessarily a circuit split.

[00:28:27] Speaker 05:
But again, I think that the result is correct.

[00:28:33] Speaker 05:
I would just emphasize that with the states that kept the rape label, 12 of those were common law rape.

[00:28:45] Speaker 05:
A handful of those included sodomy, and seven included digital and object penetration.

[00:28:55] Speaker 05:
But overall, 31 states plus Washington DC

[00:29:01] Speaker 05:
total included digital and object penetration in their statutes.

[00:29:24] Speaker 04:
Thank you, Your Honors, for giving me three minutes.

[00:29:27] Speaker 04:
The government argues that Congress, because the term rape was only used in 24 statutes, Congress would understand rape based on how the states interpreted it.

[00:29:42] Speaker 04:
But this court and the US Supreme Court has always said that the interpretation of federal law is not to be dependent on state law.

[00:29:52] Speaker 04:
Congress had already walked away from the term rape in other parts of its code, particularly criminal code.

[00:30:00] Speaker 04:
It also added the Sexual Abuse Act, where it included the essential elements of rape, but broadened it and added more catch-all sex crimes, as the government noted.

[00:30:13] Speaker 04:
And so if Congress had walked away from the term rape,

[00:30:17] Speaker 04:
leading up to 1996, and the states had walked away, more of the states had walked away from the term rape, then why would Congress, when it had limitless possibilities, when it added rape, when it sought to expand what constituted an aggravated felony in 1996, why did Congress still stick with rape?

[00:30:39] Speaker 04:
If the term was obsolete and if Congress didn't mean what it said, then why did it say just rape?

[00:30:45] Speaker 04:
And I think that is the critical flaw that the BIA makes in matter of Keighley, is that it put the state's interpretation of an act above what the actual text said and put the state's interpretation above what Congress's interpretation was.

[00:31:03] Speaker 01:
Council, before we let you go, I wanted to switch gears for a second and ask about one of the arguments about consent and the know or should have known mens rea.

[00:31:14] Speaker 01:
That argument was, I believe, not brought up before the IJ and the BIA declined to reach it because it was waived.

[00:31:24] Speaker 01:
So why is that something that we would be able to hear now?

[00:31:28] Speaker 04:
As this court has held, claims are waived, not arguments.

[00:31:35] Speaker 04:
It's important to remember that Petitioner was a lawful permanent resident charged with deportability before the IJ.

[00:31:42] Speaker 04:
It was the department's burden to prove that the Nevada sexual assault statute was a categorical match to the aggravated felony rape offense.

[00:31:51] Speaker 04:
And all that Petitioner had to do was object.

[00:31:54] Speaker 04:
He just had to contest that it was overbroad.

[00:31:56] Speaker 04:
And he did put forth arguments that the act, the sexual act, was overbroad and also the mental states were overbroad.

[00:32:02] Speaker 04:
And that meets his burden of preserving any claims.

[00:32:09] Speaker 04:
The claim was that the Nevada sexual assault statute was overbroad, and he preserved that.

[00:32:14] Speaker 04:
And so the arguments about negligence as a mens rea is properly before this court.

[00:32:21] Speaker 02:
All right, we thank council for their arguments.

[00:32:25] Speaker 02:
The case just argued is submitted and we'll take a 10 minute break.