that is under oregon's law does a conviction for rate in the third degree which is a strict liability danced with no knowledge or intent required does that necessarily come within the ordinary contemporary common meaning of the word rape such that it is an aggravated felony under the immigration law is that first certainly exhaustion is to give the board the first opportunity to consider the issue and to make a record and in this record it is the motion to reconsider and the board's decision on time the motion to reconsider before the board thirteen twenty six it was a criminal proceeding but with the reasoning is persuasive because here the immigration judge told the petitioner he was not eligible violation and the individual then because employers are going to say criminal case and an element of the crime was the the the litany of the underlying removal order so it is separate from this case but it's not a criminal case and what is the application of the application here is that because the immigration judge told the so it was a ruling when he tells them he's not eligible to apply a challenge to the denial of the motion to reconsider by the board the only order on review is the underlying merits order to review that order the court must determine whether it has jurisdiction and to do that a court must determine whether the petitioner is  sexual intercourse without consent in this case obviously there was sexual intercourse and the victim in this case was thirteen years old at the time the event took place and take under the law of consent legally incapable of consenting think yes that legally the inability to consent equates with a lack of consent under the death under the common definition of rape the fact that she was thirteen years old i think answers the approach which includes merely looking to the elements of the statute sexual intercourse with a person under the age of sixteen to determine whether that falls within sexual abuse of a minor and i think it's important to note that the court has interpreted the phrase police reports about page three hundred of the record that in this case the alien was nineteen years old and the victim was thirteen years old there's sixty three age difference i don't believe there's any affirmative defen not pursuing any question of lack of exhaust again i think it's my understanding really of this record that the exhaustion issue only helps to define the parameters of review and exclude from consideration th statute and under for example under the statute a sixteen year old boy could be convicted of statutory rape of a fifteen year old girl and type of conduct does not fall within the ordinary common contemporary meaning of the word rape also then at that point the court would go to a modified categorical approach and look to the records of conviction not to the police reports but you would look to evidence in the the judgment of the indictment to determine if there are other facts and here if there is the birthdate is part of the the record of conviction that the court can look to so the individual was nineteen years old at the time a no other reason though that this does not fit within the categorical approach is that knowledge is no defense under the oregon revised statute so if for instance the girl was to up to represent that she was eighteen years old and the individual reasonable  believe that she was eighteen years old they could still be convicted under this under this statute the other point i want to make is there was no factual finding by the immigration judge that this constituted sex abuse of a minor and so send it back yes your honor if if you determine that statutory that's the organ that's a violation of the organs statute does not state that within the ordinary contemporary common meaning of the word rape then it should they have