Background
Ishmahil Barrie, a lawful permanent resident from Sierra Leone, was convicted in the District of Columbia in two thousand fourteen of attempted first-degree sexual abuse and kidnapping. In two thousand twenty-one, the Department of Homeland Security initiated removal proceedings, alleging Barrie was removable because his sexual abuse conviction constituted an aggravated felony of attempted rape under the Immigration and Nationality Act. The Immigration Judge and the Board of Immigration Appeals affirmed the removal order, relying on the view that the generic federal definition of rape included digital penetration. Barrie petitioned for review, arguing that the D.C. statute criminalized conduct broader than the federal definition of rape.
The court’s reasoning
The court applied the categorical approach to determine if the D.C. statute of conviction categorically fit within the generic federal definition of rape. The court looked to the ordinary meaning of the term rape as understood in nineteen ninety-six when Congress enacted the relevant provision. The court found that the traditional common-law definition of rape required sexual intercourse, specifically the penetration of the vagina by the penis, and did not include digital penetration. The court noted that Congress distinguished between the terms rape and sexual abuse in the statute, implying they have different meanings. The court also observed that while many states had broadened their sexual offense laws to include digital penetration, they typically did so under new names like sexual assault or sexual abuse rather than retaining the term rape. Therefore, the court concluded that the generic federal definition of rape does not include digital penetration.
What it means going forward
The decision clarifies that non-citizens convicted of offenses involving digital penetration under state laws that define rape narrowly may not be removable as aggravated felons based on a rape conviction. However, the case is remanded for the Board of Immigration Appeals to determine if the conviction qualifies as a crime of violence or if other grounds for removability apply.