Eleventh Circuit Rule: “Rape” in INA § 1101(a)(43)(A) Does Not Include Digital Penetration

1. Introduction

Ishmahil Barrie v. U.S. Attorney General addresses a recurring aggravated-felony question in immigration law: what “rape” means in the Immigration and Nationality Act (“INA”) aggravated-felony definition, 8 U.S.C. § 1101(a)(43)(A). The petitioner, Ishmahil Barrie, is a Sierra Leone citizen and lawful permanent resident (“LPR”) convicted in the District of Columbia of attempted first-degree sexual abuse and kidnapping under D.C. law.

After Barrie served his sentence, the Department of Homeland Security initiated removal proceedings alleging, among other grounds, that his attempted first-degree sexual abuse conviction was an aggravated felony as an attempted “rape” under § 1101(a)(43)(A) and § 1101(a)(43)(U). Barrie’s central argument was categorical: the D.C. sexual-abuse statute reaches forcible digital penetration (penetration by finger), but the federal “generic” meaning of “rape” does not.

The Immigration Judge ordered removal, and the BIA affirmed removability relying on Matter of Keeley, which treated digital penetration as within generic “rape.” The Eleventh Circuit granted review, rejected that interpretation, vacated, and remanded for the BIA to address other removability theories (including “crime of violence”).

2. Summary of the Opinion

The Eleventh Circuit held that the generic federal definition of “rape” in 8 U.S.C. § 1101(a)(43)(A)—fixed at the time Congress added “rape” in 1996—does not include digital penetration. Because D.C. Code § 22-3002(a)(1), via its “sexual act” definition in § 22-3001(8)(C), includes digital penetration, the offense is not a categorical match to generic “rape.”

The court therefore ruled the BIA erred in finding Barrie removable on the “attempted rape” aggravated-felony ground, vacated the BIA decision, and remanded for the agency to consider unresolved removability issues—especially whether the conviction qualifies as an attempted crime of violence.

3. Analysis

3.1 Precedents Cited

The opinion is notable both for the authorities it adopts and for how it positions the Eleventh Circuit within an emerging consensus against the BIA’s prior approach.

A. Circuit decisions defining generic “rape”

• Perez-Gonzalez v. Holder (5th Cir. 2012): Cited for the proposition that, as commonly understood in 1996, “rape” did not include digital penetration. The Eleventh Circuit expressly “join[s]” this reasoning.
• Keeley v. Whitaker (6th Cir. 2018): Cited as rejecting the BIA’s broader definition (from Matter of Keeley) and concluding generic “rape” in 1996 excluded digital penetration.
• Quito-Guachichulca v. Garland (8th Cir. 2024): Cited for the same conclusion and for the critique of “reverse engineering” a definition of “rape” to fit a broad set of “rape-analogous” statutes.

B. Administrative precedent targeted by the court’s holding

• Matter of Keeley (BIA 2017): The BIA relied on this decision to treat digital penetration as within generic “rape.” The Eleventh Circuit’s statutory interpretation directly undermines that position (at least within the Eleventh Circuit), while not reaching ancillary questions about the BIA’s continued adherence to its own precedent on remand.

C. Supreme Court and Eleventh Circuit methodology cases (categorical approach and interpretation)

• Esquivel-Quintana v. Sessions (2017): Supplies the categorical-approach framework: compare the statute of conviction to the generic federal offense, presuming conviction on the least culpable conduct.
• Descamps v. United States (2013) and Mathis v. United States (2016): Define when the modified categorical approach applies and the elements/means divisibility inquiry. The court flagged (but did not decide) potential divisibility issues under D.C. law.
• Loper Bright Enters. v. Raimondo (2024): Central to the court’s posture toward the BIA; the Eleventh Circuit states it must determine the statute’s “single, best meaning” “without deferring to the BIA.”
• Taniguchi v. Kan Pac. Saipan, Ltd. (2012) and Pugin v. Garland (2023): Support use of ordinary meaning and interpretive sources (dictionaries, federal/state laws, Model Penal Code) for undefined INA aggravated-felony terms.
• Cintron v. U.S. Att'y Gen. (11th Cir. 2018): Provides de novo standard for whether a conviction is an aggravated felony under § 1101(a)(43).
• United States v. Davis (11th Cir. 2017): Quoted to highlight the categorical approach’s sometimes counterintuitive requirement to ignore actual conduct.
• TRW Inc. v. Andrews (2001) and Pulsifer v. United States (2024): Canons of construction (avoid surplusage; different terms have different meanings).
• Kousisis v. United States (2025) and Stokeling v. United States (2019): “Old soil” principle—terms with common-law roots presumptively carry traditional meaning.
• Garcia-Celestino v. Ruiz Harvesting, Inc. (11th Cir. 2016): Reinforces presumption that Congress intends traditional meaning when using common-law terms.

D. Remand/administrative-law “ordinary remand rule”

• Talamantes-Enriquez v. U.S. Att'y Gen. (11th Cir. 2021): Supports remanding issues the BIA did not decide (here, crime-of-violence and related removability questions).
• Ruiz v. Gonzales (11th Cir. 2007): General rule about reviewing BIA and IJ decisions depending on adoption.

E. Historical federal “rape” usage

• United States v. Smith (9th Cir. 1978): Example of courts interpreting prior federal “rape” statute (18 U.S.C. § 2031) according to common-law rape.

3.2 Legal Reasoning

The court’s reasoning proceeds in a structured statutory-interpretation sequence: (1) determine the relevant “least acts” under the categorical approach, (2) fix the ordinary meaning of “rape” as of 1996, and (3) decide whether the D.C. offense is a categorical match.

A. The categorical hook: the D.C. statute reaches digital penetration

D.C. Code § 22-3002(a) criminalizes engaging in a “sexual act” by force. “Sexual act” includes, in § 22-3001(8)(C), “penetration ... of the ... vulva by a hand or finger.” The parties agreed digital penetration is the “least” conduct criminalized. Therefore, the aggravated-felony “rape” theory succeeds only if “rape” in § 1101(a)(43)(A) includes digital penetration.

B. Ordinary meaning of “rape” in 1996: narrow, common-law rooted

Because Congress did not define “rape” in the INA, the court treated it as an undefined term with common-law roots and applied ordinary-meaning tools. It emphasized that Congress’s use of a common-law term typically imports traditional content (“old soil”). The court relied on contemporaneous dictionary definitions (including Black’s Law Dictionary (6th ed. 1990) and Webster’s (1996)) associating “rape” with forcible sexual intercourse (penile-vaginal penetration) rather than digital penetration.

C. Textual inference from § 1101(a)(43)(A): “rape” versus “sexual abuse of a minor”

A key move is internal textual contrast: Congress listed “murder, rape, or sexual abuse of a minor.” The court reasoned that placing “rape” next to “sexual abuse of a minor” signals Congress intended different meanings. If “rape” were read broadly to cover any forced penetrative sexual act (including digital penetration), it risks collapsing into the “sexual abuse” concept and producing redundancy—contrary to the anti-surplusage canon invoked via TRW Inc. v. Andrews.

D. Congress’s demonstrated ability to broaden “rape” when it wants to

The court reinforced its textual reading by pointing to nearby federal legislative practice:

• 1986 repeal of the federal “rape” law and replacement with “sexual abuse” statutes: Congress repealed 18 U.S.C. § 2031 “rape” and enacted “sexual abuse”/“aggravated sexual abuse” provisions that expressly define “sexual act” to include digital penetration. The court treated this as strong evidence Congress distinguishes “rape” (traditional) from “sexual abuse” (broader), and that when Congress wants breadth, it uses different labels and definitions.
• Violent Crime Control and Law Enforcement Act (1994): Congress sometimes defined “assault with intent to commit rape” by explicit reference to “aggravated sexual abuse or sexual abuse” (18 U.S.C. §§ 2241 and 2242), showing it can legislate a broad, rape-adjacent concept when it supplies definitional cross-references. In 1996 INA § 1101(a)(43)(A), Congress did not.
• Prison Rape Elimination Act (2003): Congress expressly defined “rape” broadly to include “sexual assault with an object,” and separately defined that concept to include hand/finger penetration. The court used this as a later-in-time demonstration of legislative drafting capacity: Congress knows how to expand “rape” beyond common-law content by saying so.

E. State-law and Model Penal Code context: the name “rape” tended to remain narrower

The court canvassed how states labeled and defined sex offenses in 1996. While acknowledging “flux,” it drew a pattern: where jurisdictions retained an offense called “rape,” most did not include digital penetration in that definition; where jurisdictions wanted broader coverage (including digital penetration), they often used different names such as “sexual assault” or “sexual abuse.” The Model Penal Code likewise did not define “rape” to include digital penetration, while separately addressing other sex offenses.

F. Rejection of the government’s “rape-analogous offenses” approach

The government urged the court to define generic “rape” by reference to a majority of “rape-analogous” state statutes (even if not labeled “rape”) that included digital penetration. The court rejected this as inconsistent with the statutory text and as effectively “reverse engineer[ing] a definition” to include statutes Congress did not name. Echoing Quito-Guachichulca v. Garland, the court emphasized: “Congress said ‘rape.’”

G. Result and scope: categorical mismatch; remand for other grounds

The holding is limited: generic “rape” under § 1101(a)(43)(A) excludes digital penetration, so D.C. Code § 22-3002(a)(1) is not categorically “rape.” But the court expressly left open additional removability theories, including: (1) divisibility and potential modified categorical analysis, and (2) whether the offense is an aggravated-felony “crime of violence” under § 1101(a)(43)(F) and 18 U.S.C. § 16. Under Talamantes-Enriquez v. U.S. Att'y Gen., those questions go back to the BIA first.

3.3 Impact

• Eleventh Circuit alignment with other circuits: The decision expressly joins the Fifth, Sixth, and Eighth Circuits, strengthening an inter-circuit consensus that INA aggravated-felony “rape” (1996) excludes digital penetration.
• Reduced reliance on Matter of Keeley within the Eleventh Circuit: Although the court did not formally “overrule” the BIA’s decision (it cannot), its “single, best meaning” holding effectively prevents the BIA from applying Matter of Keeley to treat digital penetration as “rape” in Eleventh Circuit cases, absent a different statutory basis.
• Shifts litigation to alternative aggravated-felony categories: DHS/BIA may pursue removability under “crime of violence” (§ 1101(a)(43)(F)) or other aggravated-felony prongs, and will likely litigate divisibility/modifed-categorical questions where state/D.C. statutes have multiple “sexual act” alternatives.
• Greater emphasis on textualism and non-deference post-Loper Bright Enters. v. Raimondo: The court’s refusal to defer to the BIA underscores a broader shift: undefined INA terms will be resolved by courts using traditional tools, limiting agency latitude.
• Practical consequence: Some convictions involving highly coercive sexual conduct may not qualify as aggravated-felony “rape” if the statute of conviction covers digital penetration at the minimum, even when the underlying facts involve penile penetration—an effect the court candidly acknowledged as a byproduct of the categorical approach.

4. Complex Concepts Simplified

• Aggravated felony (immigration): A term of art in the INA covering many offenses listed in § 1101(a)(43). An aggravated felony can make a noncitizen removable under § 1227(a)(2)(A)(iii) and can limit relief.
• Generic federal definition: When Congress lists an offense name (like “rape”) without defining it, courts identify the offense’s “generic” meaning—often the ordinary, commonly understood meaning at enactment.
• Categorical approach: A comparison of statutory elements, not real-world facts. Courts assume the conviction could rest on the least conduct criminalized by the statute and ask whether that conduct matches the generic offense.
• Modified categorical approach: Used only if the statute is divisible (separate crimes with different elements). Then a court may consult a limited set of conviction documents to identify which elements formed the conviction. Here, the Eleventh Circuit noted possible divisibility but did not decide it because the BIA/IJ had not.
• Divisible statute (elements vs. means): If alternatives are different elements (jury must agree), it’s divisible; if they are just different methods of satisfying one element, it’s not.
• Canon against surplusage: Courts try to avoid interpreting statutes so that words become redundant. The court used this to support reading “rape” and “sexual abuse of a minor” as distinct.
• “Old soil”/common-law term: When Congress uses a term with a well-established common-law meaning, courts presume Congress intended that traditional content unless the statute indicates otherwise.
• Ordinary remand rule: If the BIA has not decided an issue, courts usually remand for the agency to address it first.

5. Conclusion

Ishmahil Barrie v. U.S. Attorney General establishes a clear Eleventh Circuit rule: for INA aggravated-felony purposes, the generic meaning of “rape” in 8 U.S.C. § 1101(a)(43)(A), fixed in 1996, excludes digital penetration. Because the D.C. offense of attempted first-degree sexual abuse encompasses digital penetration, it is not categorically “rape,” and the BIA’s removability determination on that ground cannot stand.

At the same time, the opinion is institutionally careful: it vacates and remands for the BIA to evaluate other removability pathways (including “crime of violence” and potential divisibility/modified-categorical issues). The decision’s broader significance lies in its textual, historically grounded methodology and its explicit non-deference approach under Loper Bright Enters. v. Raimondo, both of which are likely to shape future INA aggravated-felony interpretation.