dissenting from Part A:

If I agreed with the court’s determination that the offence to which petitioner Rivas pled guilty, and, for which he received a sentence of probation, constituted, an “aggravated felony” within the meaning of 8 U.S.C. § 1101 (a)(43)(A), and hence that he should be removed to his native Guatemala, I would join the court’s determination that the Immigration Judge erred in assessing Rivas’s waiver application and that the matter should be remanded for further proceedings. But I am not in agreement with the court’s ruling that Rivas’s offense constituted an “aggravated felony.” Therefore, I would grant Rivas’s petition for review with direction to remand this matter to the IJ to reopen removal proceedings and to rescind the removal order.

I

At the age of fifteen, petitioner Rivas, a native of Guatemala, was admitted to the United States as an asylee. Four years later, Rivas, then nineteen and residing with his family in Oregon, was charged with the crime, under Oregon law, of “[rjape in the third degree,” which is defined as “sexual intercourse with another person under 16 years of age.” ORS § 163.355. The charge grew out of Rivas’s sexual relationship with a fourteen-year old schoolmate. Rivas pled guilty and was sentenced to a three-year probationary term.

Thereupon the former Immigration and Naturalization Service (“INS”, which was one of the agencies whose functions were absorbed into the new Department ■ of Homeland Security in 2003), initiated removal proceedings against Rivas. The asserted ground of removal was that the crime to which Rivas had pled guilty was an “aggravated felony,” conviction for which, “at any time after admission,” renders one subject to deportation. 8 U.S.C. § 1227 (a)(2)(A)(iii). The term “aggravated felony” means “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101 (a)(43)(A).

Concluding that the crime to which Rivas pled guilty was an “aggravated felony” as defined by 8 U.S.C. § 1101 (a)(43)(A), the Immigration Judge entered an order of removal directing that Rivas be deported to his native Guatemala. The Board of Immigration Appeals summarily affirmed.

*1080 II

Rivas’s petition for review argues that the Immigration Judge erred as a matter of law in finding that ORS § 163.355 is an “aggravated felony.” It is Rivas’s submission that Oregon’s “rape in the third degree” is not “rape” as that word is used in the trilogy of “aggravated felon[ies]” specified in 8 U.S.C. § 1101 (a)(43)(A). If Rivas is right, the Immigration Judge’s order of removal must be set aside.

This court concludes that the crime to which Rivas pled guilty — Oregon’s “rape in the third degree” — is “rape” within the meaning of the federal statutory phrase “murder, rape, or sexual abuse of a minor,” 8 U.S.C. § 1101 (a)(43)(A), and hence the court denies Rivas’s petition for review. For the reasons that follow, I disagree.

III

The court is correct in following the path marked out by Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990) in inquiring whether an offense is an “aggravated felony.” The Taylor inquiry, as the court explains, “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,” ante at 1074 (citing United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999)). The court then proceeds to consult Black’s Law Dictionary to find the “ordinary, contemporary, and common meaning” of “rape.” The court quotes the Black’s Law Dictionary definition: “[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). From this the court distills what it finds to be the two ingredients of “rape”- — -“that the sexual activity is (1) unlawful and (2) without consent,” ante at 1074. The court then states that ORS § 163.355 “falls squarely within the ordinary, contemporary, and common meaning of the word ‘rape.’ ” Ante at 1075. This is so, according to the court, because, first, ORS § 163.355 expressly proscribes — thus making “unlawful”— “sexual intercourse with another person under 16 years of age,” and, second, another Oregon statute — ORS § 163.315(l)(a)— provides that “[a] person is considered incapable of consenting to a sexual act if the person is ... [u]nder 18 years of age.” Thus, the court reasons, ORS § 163.355 “contains an inherent ‘without consent’ element.” Ante at 1075. The court then goes on to state: “With respect to [the ‘without consent’] element of rape, we see no material difference in this context between rape where the victim expresses a lack of consent ... and rape where the victim ... is, as a matter of law, incapable of consenting.” Ante at 1075.

There are two difficulties with the court’s analysis:

(1) The first difficulty inheres in the court’s assimilation of ORS § 163.355 to the Black’s Law Dictionary definition of “rape.” A more apt Black’s Law Dictionary definition would be that of “statutory rape,” to which the court does not refer. “Statutory rape”- — -“[ujnlawful sexual activity with a person under the age of consent (as defined by statute) regardless of whether it is against that person’s will,” Black’s Law Dictionary 1288 (8th ed.2004) — is, quite clearly, the prototype offense of which ORS § 163.355 is an example. “Statutory rape,” as exemplified by ORS § 163.355, is not a sub-set of the generic offense called “rape.” It is a distinct offense, separately codified by the Oregon legislature. Compare ORS § 163.355 with ORS § 163.375(1) (“A person who has sexual intercourse with another person commits the crime of rape in the first degree if ... [t]he victim is subjected *1081 to forcible compulsion by the person” or “the victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.”). 1 Reference sources other than Black’s Law Dictionary confirm the distinction between generic “rape” as an offense keyed to non-consent and “statutory rape” as an offense in which the absence of consent is not an issue. Thus, the American Heritage Dictionary defines “rape” as “[t]he crime of forcing another person to submit to sex acts, especially sexual intercourse,” American Heritage Dictionary of the English Language 1498 (3d ed.1992), while defining “statutory rape” as “[s]exual relations with a person who has not reached the age of consent,” id. at 1757. And the Encyclopedia Britannica instructs that “rape” is “sexual intercourse with a woman by a man without her consent, either through force or the threat of force or through fraud,” and that “[sjexual intercourse with a female who is below consenting age is termed statutory rape, and consent is no longer relevant.” 9 New Encyclopedia Britannica: Micropaedia 941 (1998). Moreover, in determining the “ordinary, *1082 contemporary, and common meaning” of “rape,” it would seem of particular interest that the Department of Justice, in its annual National Crime Victimization Survey, characterizes “rape” as “forced sexual intercourse including both psychological coercion, as well as physical force.” Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice, National Crime Victimization Survey Interviewing Manual for Field Representatives, http://www.ojp.usdoj.gov/bjs/pub/ as-cii/manual.txt (May 5, 2003).

(2) As noted above, the court states that it “see[s] no material difference in this context between rape where the victim expresses a lack of consent ... and rape where the victim ... is, as a matter of law, incapable of consenting,” ante at 1075. But it appears that the State of Oregon sees a difference. Under Oregon law, one “who has sexual intercourse with another person” when “[t]he victim is subjected to forcible compulsion by the person” or “is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness” is guilty of “the crime of rape in the first degree,” which “is a Class A felony.” ORS § 163.375. But ORS § 163.355 — the crime to which Rivas pled guilty — “is a Class C felony.” For a Class A felony, the maximum fíne is $375,000, ORS § 161.625, and “the maximum term of an indeterminate sentence of imprisonment” is 20 years, ORS § 161.605; for a Class C felony, the maximum fine is $125,000, ORS § 161.625, and the maximum prison term is 5 years, ORS § 161.605. 2 (As noted above, Rivas was sentenced to three years’ probation).

IV

Assimilating Rivas’s crime to generic “rape” is in a sense understandable. Ri *1083 vas’s crime is called a type of “rape”-“rape in the third degree.” But we have been admonished not to be misled by the tyranny of labels. In inquiring into the “ ‘ordinary, contemporary, and common meaning of the words that Congress used,’ ” Baron-Medina, 187 F.3d at 1146 (quoting Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1174 (9th Cir.1999)), and comparing that meaning with the crime asserted to be an “aggravated felony,” we are to “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,” id. (emphasis added).

The question to be determined is whether Rivas’s crime is “rape” within the meaning of the word as Congress used it, in the statutory grouping “murder, rape, or sexual abuse of a minor,” 8 U.S.C. § 1101 (a)(43)(A), to define the category of “aggravated felonfies]” conviction for which would be ground for deportation. Prior to amendment of the statute in 1996, “murder” was the one listed crime. See 104 Pub.L. No. 208, § 321, 110 Stat. 3009 -546, -628 (1996) (amending § 1101(a)(43)(A) by “inserting, ‘rape, or sexual abuse of a minor’ after ‘murder’ ”). “Congress decided to broaden 8 U.S.C. § 1101 (a)(43)(A) from just murder to include rape and sexual abuse of a minor, implicitly signaling that it felt both of these latter two crimes were of similar severity and import.” Guerrero-Perez v. INS, 242 F.3d 727, 736 (7th Cir.2001). ORS § 163.355 is not of “similar severity and import” to murder.

V

In sum, I conclude that the crime to which Rivas pled guilty was not an “aggravated felony” within the meaning of 8 U.S.C. § 1101 (a)(43)(A). 3 Therefore, I would grant Rivas’s petition for review and direct the IJ to reopen removal proceedings and rescind the removal order.

. Oregon is not alone in classifying the offense having the elements of generic “rape” separately from the offense constituting "statutory rape.” In this Circuit, Alaska, Arizona, California, Nevada, and Washington do so as well. Compare Alaska Stat. § 11.41.410 (a)(1) (Michie 2005) (criminalizing "sexual penetration with another person without consent of that person” as first-degree sexual assault) with Alaska Stat. § 11.41.436 (a) (Michie 2005) (characterizing as sexual abuse of a minor in the second degree the act of an offender "16 years of age or older ... [who] engages in sexual penetration with a person who is 13, 14, or 15 years of age and'at least three years younger than the offender”); Ariz. Rev.Stat. § 13-1406 (2004) (criminalizing as a class 2 felony sexual assault, defined as "sexual intercourse or oral sexual contact with any person without consent of such person”) with Ariz.Rev.Stat. § 13-1405 (2004) (criminalizing "sexual intercourse or oral sexual contact with any person who is under eighteen years of age,” and characterizing that offense as a class 2 felony where the minor is under 15 years of age, or a class 6 felony where the minor is at least 15 years of age); Cal.Pen.Code § 261 (Deering 2004) (defining "rape” as a crime requiring force, duress, trickery, or an absence of actual consent (e.g., because the victim was sleeping or intoxicated)) with Cal. Pen.Code § 261.5(c) (Deering 2004) (criminalizing, as a misdemeanor or felony, sexual intercourse with a minor who is more than three years younger than the offender); Nev.Rev.Stat. § 200.366 (2004) (characterizing as a category A felony "sexual assault,” which the statute defines as "subjecting] another person to sexual penetration, or [] forc[ing] another person to make a sexual penetration on himself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct ....”) with Nev.Rev.Stat. § 200.368 (2004) (characterizing as a gross misdemean- or sexual intercourse committed by one who is between the ages of 18 and 21 with a minor under the age of 16, which Nevada terms “statutory sexual seduction,” § 200.364); and Rev.Code Wash. § 9A.44.060(a) (2004) (criminalizing as a class C felony unconsented sexual intercourse where the "lack of consent was clearly expressed by the victim's words or conduct”) with Rev.Code Wash. § 9A.44.079 (2004) (criminalizing as a class C felony sexual intercourse with a minor between the ages of 14 and 16 where the offender is at least forty-eight months older). By contrast, three states in this Circuit treat generic "rape” and "statutory rape” as different aspects of the same offense. See Haw.Rev.Stat. § 707-730 (2004) (characterizing as a class A felony both sexual penetration resulting from strong compulsion and sexual intercourse with a minor between the ages of 14 and 16 where the offender is at least five years older); Idaho Code § 18-6101 (2004) (defining "rape” as, inter alia, sexual penetration of a female under the age of 18, as well as sexual penetration of a female who resists but whose resistance is overcome by force or violence); Mont.Code Ann. § 45-5-501 (2004) (defining “without consent” as used in § 45-5-503 (Montana’s provision for "sexual intercourse without consent”) as, inter alia, sexual intercourse compelled by force, and sexual intercourse with a minor less than 16 years old.)

. Like Oregon, other states in this Circuit that classify the offense of generic "rape” in a separate provision from the offense of "statutory rape” tend to characterize "rape” as a significantly more serious crime. Compare Alaska Stat. § 12.55.125 (I)(1) (Michie 2005) (setting the sentencing range for first-degree sexual assault, § 11.41.410(a)(1), at between 8 and 40 years) with § 12.55.125(I)(3) (setting the sentencing range for sexual abuse of a minor in the second degree, § 11.41.436(a), at between 5 and 20 years); Cal. Pen.Code § 264 (Deering 2004) (stating that the crime of "rape” as defined in § 261, see supra note 1, is "punishable by imprisonment in the state prison for three, six, or eight years”) with Cal. Pen.Code § 261.5(c) (Deering 2004) (positing one year as the maximum term of imprisonment for sexual intercourse with a minor who is more than three years younger than the offender); and Nev.Rev.Stat. § 200.366 (setting the minimum penalty for sexual assault, a category A felony, at 25 years imprisonment, with a maximum of life without parole) with § 200.368(2) (classifying "statutory sexual seduction” by one under the age of 21 years as a gross misdemeanor, punishable "by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $ 2,000, or by both fine and imprisonment,” § 193.140).

But this pattern appears not to obtain in Washington and Arizona. Washington criminalizes both unconsented sexual intercourse, Rev.Code Wash. § 9A.44.060(a), and intercourse with a minor, § 9A.44.079, as class C felonies, subject to a maximum term of imprisonment of five years, § 9A.20.021(l)(c). In Arizona, sexual intercourse with a minor less than 15 years old is subject to a harsher penalty than is generic "rape,” compare Ariz. Rev.Stat. § 13-604.01(C) (2004) (setting the presumptive sentence for the first-time offender convicted of sexual conduct) (including sexual intercourse, see § 13-1405 with a minor at twenty years if the minor is less than 15 years old) with Ariz.Rev.Stat. § 13-1406 (2004) (setting the statutory minimum penalty for sexual assault committed by a first-time offender, a class 2 felony, at 5.25 years, with a presumptive sentence of 7 years); by contrast, sexual intercourse with a minor who is at least 15 years old is subject to a lesser penalty than is generic “rape,” see Ariz.Rev.Stat. § 13-701(C) (2004) (setting a presumptive penalty of a year for the first-time offender convicted of sexual intercourse with a minor who is at least 15 years old).

. The court relies on United States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir.2002), for support. That reliance is misplaced. The statute under which the alien was convicted in Yanez-Saucedo — Rev. Code Wash. § 9A.44.060 — is not analogous to ORS § 163.355. Section 9A.44.060 criminalizes, in pertinent part, "sexual intercourse with another person, not married to the perpetrator ... [wjhere the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct.” Importantly, § 9A.44.060 requires that the victim clearly manifest her lack of consent, and it applies regardless of the age of the victim. In short, § 9A.44.060 does not criminalize statutory rape. Indeed, Washington has a separate provision for that crime, Rev.Code Wash. § 9A.44.079 (criminalizing "[r]ape of a child in the third degree,” which the statute defines as "sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim"), and it is that provision which is the proper analog of ORS § 163.355 (criminalizing "[r]ape in the third degree,” which the statute defines as "sexual intercourse with another person under 16 years of age”), compare ORS § 163.365 (criminalizing, as a class B felony, sexual intercourse with a person under the age of 14).