The Board of Immigration Appeals (BIA) has determined that a rape aggravated felony encompasses not only vaginal, oral, and anal intercourse, but also acts of digital or mechanical penetration of the vagina or anus, no matter how slight.  The BIA has also determined that the required lack of consent can be established through 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.  Such circumstances include where the victim’s mental capacity is substantially impaired as the result of an intoxicant administered without his or her consent, typically by the defendant, and where the victim is incapable of giving consent as a result of a mental disease or defect, and the defendant knew or had reason to know of the victim’s condition.  

The full text of Matter of Keeley can be found here: