Summary
The Eleventh Circuit granted Ishmahil Barrie’s petition for review of a Board of Immigration Appeals removal decision. The court held that the generic federal definition of “rape” under 8 U.S.C. § 1101(a)(43)(A) does not include digital penetration, so Barrie’s conviction for attempted first-degree sexual abuse under D.C. law did not categorically qualify as attempted rape. The court vacated the BIA’s decision and remanded for consideration of additional removability issues, including whether the conviction qualified as an attempted crime of violence.
Topics
Practice areas
Questions Presented
- Whether the generic federal definition of rape in 8 U.S.C. § 1101(a)(43)(A) includes digital penetration.
- Whether Barrie's conviction under D.C. Code § 22-3002(a)(1), which includes digital penetration among the acts criminalized, categorically matches the federal generic definition of rape.
- Whether unresolved issues concerning divisibility of the D.C. statute, the alternative sexual-act definition underlying Barrie's conviction, and whether the conviction qualifies as an aggravated-felony crime of violence should be remanded to the BIA.
Holdings
- The generic federal definition of rape, as used in 8 U.S.C. § 1101(a)(43)(A), does not include digital penetration.
- Barrie's conviction under D.C. Code § 22-3002(a)(1) is not a categorical match for the generic federal definition of rape because the D.C. offense includes digital penetration.
- The unresolved issues concerning divisibility, the alternative sexual-act definition underlying the conviction, and the aggravated-felony crime-of-violence ground must be remanded to the BIA for consideration in the first instance.
Key quotations
“digital penetration is not included in the federal generic definition of rape” (29)
“thus Barrie’s D.C. Code § 22-3002(a)(1) conviction is not a categorical match for the federal generic definition of rape.” (29)
“PETITION GRANTED, VACATED AND REMANDED.” (31)
Factual background
Barrie, a citizen of Sierra Leone and lawful permanent resident, was convicted in the District of Columbia of attempted first-degree sexual abuse and kidnapping. The D.C. sexual-abuse statute criminalizes sexual acts accomplished by force and defines a sexual act to include penetration by a penis and digital penetration. DHS initiated removal proceedings alleging that the attempted sexual-abuse conviction was an aggravated felony of attempted rape and a crime of violence. The BIA treated the conviction as attempted rape because it concluded that the generic federal definition of rape included digital penetration.
Procedural history
The Immigration Judge determined that Barrie's D.C. conviction for attempted first-degree sexual abuse was an aggravated felony of attempted rape and ordered him removed, while rejecting his crime-involving-moral-turpitude charge and not addressing the crime-of-violence charge. The BIA affirmed the attempted-rape removability determination and denied a waiver of inadmissibility, but remanded the CAT claim for aggregation analysis. On remand, the IJ denied CAT relief and again ordered removal; the BIA affirmed and declined to revisit removability. Barrie petitioned the Eleventh Circuit for review, which granted the petition, vacated the BIA's decision, and remanded for consideration of unresolved removability issues.
Remand instructions
The BIA must consider in the first instance whether D.C. Code § 22-3002(a)(1) is divisible; if divisible, which alternative definition of sexual act formed the basis of Barrie's conviction; whether that alternative categorically matches generic federal rape; and whether Barrie's conviction qualifies as the aggravated-felony crime of violence. The court did not reach the waiver-of-inadmissibility or CAT-relief issues.