                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                          File Name: 18a0270p.06

                      UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT



 DAVID KEELEY,                                                ┐
                                                Petitioner,   │
                                                              │
                                                               >       No. 17-4210
         v.                                                   │
                                                              │
                                                              │
 MATTHEW G. WHITAKER, Acting Attorney General,                │
                                     Respondent.              │
                                                              ┘

                  On Petition for Review from the Board of Immigration Appeals;
                                       No. A 046 124 821.

                                       Argued: October 19, 2018

                               Decided and Filed: December 17, 2018

        Before: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*
                                _________________

                                               COUNSEL

ARGUED: Victoria Latus, AMERICAN UNIVERSITY, Washington, D.C., for Petitioner.
Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Amanda Frost, AMERICAN UNIVERSITY, Washington, D.C., for
Petitioner. Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. Charles Roth, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago,
Illinois, for Amicus Curiae.




       *The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
 No. 17-4210                                     Keeley v. Whitaker                                     Page 2


                                                 _________________

                                                       OPINION
                                                 _________________

        BERNICE BOUIE DONALD, Circuit Judge. This case requires us to use the tools of
statutory interpretation to determine whether a conviction for rape in Ohio is an aggravated
felony under the Immigration and Nationality Act (“INA”). The Fifth Circuit and the Board of
Immigration Appeals (“BIA”) previously considered this question and answered it in the
negative. In the case before us, though, the BIA reversed course in a published decision and
found that such a conviction is an aggravated felony under the INA. On review of all the
relevant materials, we disagree with the BIA. A conviction for rape in Ohio can be committed
by digital penetration, whereas the aggravated felony of rape under the INA cannot. Therefore,
the Ohio conviction does not categorically fit within the federal definition, and the petitioner’s
conviction is not an aggravated felony. Accordingly, we REVERSE.

                                                 I. BACKGROUND

        The petitioner David Paul Keeley (“Petitioner”) is a citizen of the United Kingdom and a
lawful permanent resident of the United States. He was convicted of two counts of rape in 2011
under Ohio Rev. Code § 2907.02(A)(1)(c) and (B).1 Subsequently, the Department of Homeland
Security charged him as being convicted of an aggravated felony under the INA and sought his
removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).2 The INA lists rape as an aggravated felony,
but it does not define the term. See § 1101(a)(43)(A). A conviction for an aggravated felony
carries the most severe immigration consequence possible: removal without the possibility of
relief. § 1229b(b).

        On August 8, 2016, an immigration judge found that Petitioner’s conviction was an
aggravated felony and held that Petitioner was removable without eligibility for relief. Petitioner
appealed the immigration judge’s order to the BIA.


        1The Petitioner was also convicted of two counts of gross sexual imposition in violation of Ohio Rev. Code
§§ 2907.05(A)(5) and (B), but those convictions are not at issue in this case.
        2All   further citations are to this title unless otherwise noted.
 No. 17-4210                                   Keeley v. Whitaker                                             Page 3


         Petitioner argued in his appeal to the BIA that his Ohio conviction is not an aggravated
felony because Ohio’s definition of rape includes digital penetration, whereas the INA’s does
not.3 The BIA disagreed. It found that the definition of rape, as used in the INA, includes digital
penetration, meaning the state-crime conduct categorically fit within the federal definition.
Accordingly, Petitioner had committed the aggravated felony of rape, making him ineligible for
the possibility of relief from removal. Petitioner timely appealed.

                                                 II. ANALYSIS

         To determine whether Petitioner’s conviction is an aggravated felony under the INA, we
employ the categorical approach and make three related inquiries. See Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1567-68 (2017). First, we identify the minimum conduct required for
a conviction of rape under the Ohio statute. See id. at 1568. This is easy enough as the relevant
elements are defined in the statute. Second, we identify the elements of rape as it is used in the
INA. See id. This is a more difficult task because Congress did not define the term in the
statute. Therefore, we consult the resources at our disposal, including the common law, state
statutes, and the Model Penal Code, to determine the elements of the generic crime at the time
Congress added the term to the statute. See Taylor v. United States, 495 U.S. 575, 580 (1990).
Third, we determine if the minimum conduct criminalized by the Ohio statute “categorically fits”
within the generic crime. Esquivel-Quintana, 137 S. Ct. at 1568. The state conviction can only
be an aggravated felony “if the least of the acts criminalized by the state statute falls within the
generic federal definition of [rape].” Id. As set forth below, we find that the Ohio statute
criminalizes digital penetration whereas the relevant generic crime does not; therefore,
Petitioner’s conviction is not an aggravated felony under the INA.




         3Petitioner   also argued before the BIA and this Court that the Ohio statute is broader than the generic crime
vis-à-vis its ability-to-consent standard. Because the digital penetration issue is dispositive, we do not reach the
ability-to-consent question.
 No. 17-4210                                  Keeley v. Whitaker                                           Page 4


                                             Ohio’s Rape Statute

        Our first step is to identify the minimum conduct criminalized by Ohio’s rape statute.
See Esquivel-Quintana, 137 S. Ct. at 1568.4 Petitioner was found guilty of violating a specific
section of the statute,5 which reads as follows:

        (1) No person shall engage in sexual conduct with another who is not the spouse
        of the offender or who is the spouse of the offender but is living separate and
        apart from the offender, when any of the following applies:
        ...

        (c) The other person’s ability to resist or consent is substantially impaired because
        of a mental or physical condition or because of advanced age, and the offender
        knows or has reasonable cause to believe that the other person’s ability to resist or
        consent is substantially impaired because of a mental or physical condition or
        because of advanced age.

Ohio Rev. Code § 2907.02(A)(1)(c). The Ohio statute defines “sexual conduct” to include the
act of digital penetration. Id. § 2907.01(A). Digital penetration, therefore, is the “minimum
conduct” criminalized under the Ohio statute for purposes of our inquiry.

            The Generic Definition of Rape, as Limited by the Language of the INA

                                                         A.

        Our second step is to identify the elements of the crime in the federal statute. Because
Congress did not provide a definition of the term rape as used in § 1101(a)(43)(A), we must
“give the term its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566
(2012) (citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)). To give the term its
ordinary meaning, we utilize the “normal tools of statutory interpretation,” Esquivel-Quintana,

        4Although    the categorical approach is a well-worn test by now, we reiterate its defining features in this
footnote in the interest of completeness. When comparing the conviction with the federal statute, we “focus solely
on whether the elements of the crime of conviction sufficiently match the elements of [the term used by Congress],
while ignoring the particular facts of the case.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Indeed, we
presume that Petitioner received his conviction based on the “minimum conduct criminalized by the state statute,”
and then decide whether that minimum conduct categorically falls within the ambit of the federal statute.
Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).
         5There is no dispute that this statute is divisible pursuant to Descamps v. United States, 570 U.S. 254, 257
(2013), so we do not consider the statute’s alternative elements.
 No. 17-4210                              Keeley v. Whitaker                                 Page 5


137 S. Ct. at 1569, and discern how “[the term] was commonly understood” at the time Congress
used it, Descamps, 570 U.S. at 257. See also Taylor, 495 U.S. at 580 (considering the Model
Penal Code, state statutes, and the common law to identify the generic definition of an undefined
term).      Here, Congress added rape to the INA as an aggravated felony in 1996.             Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-
208, 110 Stat. 3009-546, 3009-627. Therefore, we must determine whether the generic crime of
rape in 1996 could be committed by digital penetration. Petitioner argues that it could not. The
BIA found that it could. We agree with Petitioner.

                                                   B.

           It is undisputed that the generic understanding of the term “rape” in 1996 did not include
digital penetration. Several tribunals, including the BIA, have considered this exact proposition
and concluded the same. Perez-Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012) (finding
that digital penetration was not commonly considered rape in 1996); In Re: Esau Rodriguez,
No. A73 692 631, 2005 WL 698373, at *5 (BIA Feb. 14, 2005) (“[W]e cannot conclude that the
commonly understood meaning of the term at that time necessarily included digital
penetration.”); see also Sixto Delgado, No. A075 423 408 (BIA Jan. 2, 2015) (finding that the
common law definition of rape, which does not include digital penetration, is the controlling
definition for purposes of the term as it is used in the INA). Indeed, the BIA in the underlying
case conceded that several of the controlling data points we consider show that the generic
definition of rape does not include digital penetration: for instance, the common-law crime of
rape required intercourse, the majority of state statutes criminalizing “rape” in 1996 did not
include digital penetration, and the federal crime of rape (extant until 1986) did not include
digital penetration. Matter of David Paul Keeley, 27 I&N Dec. 146, 148–51 (BIA 2017).
Furthermore, the contemporary versions of Black’s Law Dictionary similarly defined “rape” as
not including digital penetration.      See Black’s Law Dictionary 1267 (7th ed. 1999) (“The
common-law crime of rape required at least a slight penetration of the penis into the vagina.”),
Black’s Law Dictionary 1260 (6th ed. 1990) (“Unlawful sexual intercourse with a female without
her consent. The unlawful carnal knowledge of a woman by a man forcibly and against her
will.”).
 No. 17-4210                                 Keeley v. Whitaker                                          Page 6


        Nevertheless, the BIA changed course and found that the generic crime of rape in
1996 did include digital penetration because, around 1996, the understanding of what constituted
rape was expanding, and accordingly, rape was starting to be criminalized under more
comprehensive and expansive statutes titled “sexual abuse” rather than “rape.” Matter of David
Paul Keeley, 27 I&N Dec. at 151. Because sexual abuse included digital penetration, the
generic crime of rape also included digital penetration, according to the BIA. Id. at 151-54.
As described below, this effort to shoehorn sexual abuse conduct into the bounds of rape cannot
be reconciled with the language of the INA.

                                                        C.

        In its opinion, the BIA ignored the most important guiding factor to statutory
interpretation—the language of the statute—which shows that Congress did not consider rape
and sexual abuse to be coextensive. When a court discerns the intent of Congress, “[o]ur
analysis begins with the language of the statute.”                Esquivel-Quintana, 137 S. Ct. at 1569
(emphasis added) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). When defining what
crimes constituted aggravated felonies in the INA, Congress included “rape” and “sexual abuse
of a minor” separately. § 101(a)(43)(A). The only conclusion we can draw from this drafting is
that Congress intended for the terms to describe different aggravated felonies.

        The BIA’s approach is impermissible because it would strip meaning from the statute’s
words. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole,
giving effect to each word and making every effort not to interpret a provision in a manner that
renders other provisions of the same statute inconsistent, meaningless or superfluous.” Menuskin
v. Williams, 145 F.3d 755, 768 (6th Cir. 1998) (quoting Lake Cumberland Trust, Inc. v. U.S.
E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992)). To accept the BIA’s position that Congress
intended for rape and sexual abuse to be synonymous would render meaningless Congress’
decision to utilize the two different terms—rape and sexual abuse—to describe two different
aggravated felonies.6 Congress clearly intended to penalize a more expansive set of sex crimes


        6The   Government argues that Congress’ decision to use these different terms “[a]t most, [reveals that]
Congress intended a broader scope of sexual offenses against children to be aggravated felonies: it reveals nothing
about the scope of ‘rape.’” Respondent Br. at 27. The Government’s argument does not flow logically. If Congress
 No. 17-4210                                   Keeley v. Whitaker                                            Page 7


committed against minors than against adults; and to effectuate that intent, Congress used the
term “rape” as to adults and “sexual abuse” as to minors. The BIA ignored the language of the
statute.7 Its holding cannot stand.

         The primary error the BIA committed was to place the states’ treatment of the crime
above the language of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842–43 (1984) (holding that we must discern the intent of Congress when
interpreting a federal statute).8 Even accepting as true that many of the states treated rape and
sexual abuse as “interchangeable” in 1996, we cannot impute such an understanding to Congress.
The language of the INA prohibits us from doing so.

         Congress considered rape to be a separate crime from sexual abuse. When defining the
generic crime of rape, therefore, we are limited to what was understood to be rape, but not sexual
abuse, in 1996. As explained above, it is undisputed that the generic crime of rape in 1996—
without considering sexual abuse statutes and definitions—did not include digital penetration.
See Perez-Gonzalez, 667 F.3d at 627. Accordingly, Petitioner’s conviction, which could be
committed by digital penetration, is not an aggravated felony under the INA.

                                       Canon Against Absurd Results

         The Government also argues that the BIA’s decision should stand because it avoids an
absurd result. Br. of Respondent at 24. Central to this argument is the fact that, in 1996, most
states did not have “rape” statutes.               Instead, those states enacted statutes with “sexual
assault/abuse” headings and treated those as their rape statutes (although they criminalized a
broader set of conduct than was traditionally considered rape). According to the Government,
this Court’s holding would permit an absurd result because it would render a conviction for rape-


demonstrated its intent to punish a broader scope of sexual offenses by using the term “sexual abuse” instead of
“rape,” the only conclusion that may be drawn is that “rape” is more limited than “sexual abuse.”
         7The BIA mentioned only once—and in a footnote without analysis—that the statute included the crime of
sexual abuse of a minor.
         8Admittedly,   part of our task is to determine how the states defined rape when ascertaining the generic
definition because Congress did not provide an explicit definition; however, when the words of the federal statute
conflict with the states’ laws, the words of the federal statute must prevail. Here, the statute treats rape and sexual
abuse as different crimes. We are not permitted to find that they are the same for purposes of the INA.
 No. 17-4210                          Keeley v. Whitaker                                  Page 8


like conduct in most states not to be an aggravated felony. We disagree that such a result must
be avoided as absurd.

       The canon against absurd results should not be used to create an ambiguity in the text of a
statute where none exists, such as the case here. Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004).
As discussed above, Congress clearly considered “rape” and “sexual abuse” to be different
crimes, as evidenced by Congress listing them as separate crimes. It is not absurd to conclude
that Congress intended to impose only the severest of immigration consequences—removal
without the possibility of relief—on those individuals who committed the very specific and
heinous crime of rape. Indeed, in the case before us, although Petitioner has not been convicted
of an aggravated felony, he could still be subject to removal for committing a crime involving
moral turpitude. See § 1227(a)(2)(A)(i).

       Moreover, two senators vocalized the same concern on the Senate floor as the
Government has here, but to no avail. Senators Coverdell and Dole proposed an amendment to
the INA in 1996 and suggested adding the following enumerated offenses as grounds for
removal:

       [C]onviction of a crime of domestic violence; violation of a judicial protection
       order in a domestic violence context; conviction for stalking; conviction for child
       abuse, child sexual abuse, child neglect, or child abandonment, and conviction of
       rape, aggravated sodomy, aggravated sexual abuse, sexual abuse, abusive
       sexual contact, or other crimes of sexual violence.

142 Cong. Rec. S4058-02, 1996 WL 196292 (Apr. 24, 1996) (emphases added).                 Senator
Coverdell stated that the proposed amendment was, among other things, made to address the
possibility that crimes such as sexual abuse may not be considered grounds for removal and
because the lack of uniformity in state laws would likely cause a variation in the application of
the INA:

       [W]hile some of these offenses may be deportable under existing headings of
       crimes of moral turpitude or aggravated felony, they are not necessarily covered.
       Uniformity is also a problem. Whether a crime is one of moral turpitude is a
       question of State law and thus varies from State to State. An offense may be
       deportable in one State and not deportable in another.
 No. 17-4210                                Keeley v. Whitaker                                        Page 9


Id. (emphases added). Congress did not enact the proposed amendment. We cannot use the
doctrine of absurd results to pass legislation that Congress did not.

                                 Chevron Deference or Rule of Lenity

        Finally, the parties disagree on the appropriate standard of review. Petitioner argues that
the rule of lenity applies to any ambiguity in the statute, whereas the Government contends that
the BIA’s opinion should receive Chevron deference;9 but there is “no need to resolve whether
the rule of lenity or Chevron receives priority in this case because the statute, read in context,
unambiguously forecloses the [BIA]’s interpretation. Therefore, neither the rule of lenity nor
Chevron applies.” Esquivel-Quintana, 137 S. Ct. at 1572.

                                           III. CONCLUSION

         For the aforementioned reasons, Petitioner’s conviction for rape under Ohio Rev. Code
§ 2907.02(A)(1)(c), (B) is not an aggravated felony under the INA. We thus REVERSE the
decision of the BIA.




         9The Court also considered the well-drafted amici brief filed jointly by the National Immigrant Justice
Center, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild.
