Introduction

In immigration law, the label attached to a state conviction is rarely the end of the analysis. The Immigration and Nationality Act (INA) uses short, high-impact terms—like “rape”—to define “aggravated felonies.” But Congress did not define “rape” in the aggravated felony statute, and state criminal codes do not use uniform definitions. That mismatch creates a recurring question: when a state statute criminalizes conduct that many people would understandably describe as rape, does it automatically count as “rape” for aggravated felony purposes?

On February 19, 2026, the Eleventh Circuit answered an important piece of that question in Barrie v. U.S. Att’y Gen.: the “generic” federal definition of “rape” in INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), does not include digital penetration (penetration by a finger). Barrie v. U.S. Att’y Gen., No. 24-12504, slip op. at 2, 16 (11th Cir. Feb. 19, 2026). The court vacated the Board of Immigration Appeals’ (BIA) removability ruling—which had relied on the BIA’s broader definition in Matter of Keeley, 27 I. & N. Dec. 146 (BIA 2017)—and remanded for the agency to consider other possible removal grounds. Barrie, slip op. at 2–3.

For practitioners and affected immigrants, the immediate importance is obvious: in the Eleventh Circuit (Alabama, Florida, Georgia), a conviction under a statute that reaches digital penetration may no longer “categorically” match aggravated felony “rape.” The deeper importance is structural. Barrie is a reminder that aggravated felony litigation often turns on (1) the categorical approach’s insistence on elements over facts and (2) how courts interpret Congress’s choice to use one word (“rape”) rather than another (“sexual abuse”), especially in a statutory scheme where those words appear side-by-side.

The case and the posture that made the definition decisive

Ishmahil Barrie, a lawful permanent resident from Sierra Leone, pleaded guilty in the District of Columbia in 2014 to attempted first-degree sexual abuse and kidnapping. Barrie, slip op. at 1–4. Years later, DHS placed him in removal proceedings and alleged he was removable as an aggravated felon, including under the “rape” aggravated felony and the INA’s “attempt” provision. See INA § 101(a)(43)(A), (U), 8 U.S.C. § 1101(a)(43)(A), (U); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

The dispute that reached the Eleventh Circuit was sharply focused. Barrie argued that the D.C. statute is overbroad because it criminalizes “sexual acts” that include digital penetration, and that digital penetration is not part of generic “rape” as Congress used that term in 1996 when it added “rape” to the aggravated felony list. Barrie, slip op. at 1–3, 12–13. The parties agreed that digital penetration was the least conduct criminalized by the D.C. statute, making the definitional question outcome-determinative on the “rape” charge. Barrie, slip op. at 13.

The IJ and the BIA rejected Barrie’s argument by following the BIA’s decision in Matter of Keeley, where the Board concluded that aggravated felony “rape” includes vaginal, anal, or oral intercourse and digital or mechanical penetration. Matter of Keeley, 27 I. & N. Dec. at 147. The Eleventh Circuit disagreed and held that, for the INA aggravated felony provision, “rape” remains limited to a narrower, traditional meaning that does not reach digital penetration. Barrie, slip op. at 2, 16.

Why the categorical approach makes “least conduct” so powerful

The categorical approach is often described as technical, but its core idea is simple: immigration consequences generally turn on what the statute of conviction necessarily required, not on what happened in the real-world incident. See Esquivel-Quintana v. Sessions, 581 U.S. 385, 389–90 (2017). Courts “presume” the conviction could rest on the minimum conduct the statute covers, and then ask whether that minimum conduct fits within the generic federal offense. Id.

That framing matters because sexual offense statutes often cover a spectrum of conduct. A single provision may include penile-vaginal intercourse, oral sex, anal sex, and digital penetration. Some of those may match a “generic” federal offense; others may not. Under the categorical approach, if any non-matching conduct is covered by the statute’s elements—and if the statute is not divisible in a way that allows the adjudicator to identify a narrower element-set—then the conviction cannot be treated as that generic aggravated felony.

In Barrie, the Eleventh Circuit did not have to decide divisibility because the parties agreed on the least conduct point: the D.C. statute reaches digital penetration, and digital penetration is the minimum act. Barrie, slip op. at 13. That agreement effectively forced the case into a single question: does “rape” in INA § 101(a)(43)(A) include digital penetration? Barrie, slip op. at 2–3.

For a practitioner-oriented explanation of divisibility and the modified categorical approach after Descamps, see MyAttorneyUSA.com, “Descamps v. United States and its Effects on Immigration Law.”

The Eleventh Circuit’s definition of generic “rape” in 1996

Because Congress did not define “rape” in INA § 101(a)(43)(A), the court treated the task as one of statutory interpretation: what did “rape” ordinarily mean when Congress added it to the aggravated felony list in 1996? Barrie, slip op. at 14–16. The court’s reasoning is best understood as a convergence of four ideas.

  1. Congress used a word with common-law roots—and did not redefine it

The court emphasized that “rape” is a traditional term with a long common-law lineage, and that when Congress uses such a term without redefining it, courts ordinarily presume Congress intended the traditional meaning. Barrie, slip op. at 14–16. The court looked to contemporaneous legal and ordinary dictionaries and noted that the traditional definition centered on “carnal knowledge” and sexual intercourse, not digital penetration. Barrie, slip op. at 14–15.

  1. “Rape” appears in the INA next to “sexual abuse of a minor,” suggesting different meanings

In INA § 101(a)(43)(A), Congress listed “murder, rape, or sexual abuse of a minor.” The Eleventh Circuit treated that drafting choice as meaningful: different terms placed side-by-side usually signal different concepts. Barrie, slip op. at 15–16. If “rape” were interpreted so broadly that it swallowed the kinds of conduct captured by “sexual abuse” categories, the neighboring phrase “sexual abuse of a minor” risks becoming redundant in the statute’s architecture. The court invoked the familiar anti-surplusage canon to reject that outcome. Barrie, slip op. at 16.

The practical takeaway is not that “rape” and “sexual abuse” are mutually exclusive in everyday speech; they plainly overlap. The point is that Congress used both terms and, in the Eleventh Circuit’s view, did so to maintain distinct legal boundaries for the aggravated felony label.

  1. Congress itself drew a “rape”/“sexual abuse” line in federal criminal law before 1996

The opinion’s most concrete structural argument traces Congress’s own word choices in federal criminal statutes. The court noted that Congress historically criminalized “rape” in a statute that courts interpreted according to the common-law meaning. Barrie, slip op. at 16–17. In 1986, Congress repealed the federal “rape” offense and replaced it with “sexual abuse” and “aggravated sexual abuse,” expressly defining “sexual act” in a way that included digital penetration. Barrie, slip op. at 17–18 (discussing 18 U.S.C. §§ 2241–2242 and § 2246(2)). The Eleventh Circuit treated that sequence as a strong signal: when Congress wanted broader coverage (including digital penetration), it used the language of “sexual abuse” and defined it; when it used the standalone word “rape,” it expected courts to read it in its traditional, narrower sense. Barrie, slip op. at 18.

  1. Surveying 1996 state statutes supported a narrower “rape” baseline

The Eleventh Circuit also examined how states used the label “rape” in 1996. The opinion describes that only a minority of states with an offense expressly called “rape” included digital penetration within that offense, while many states covered digital penetration under differently labeled crimes (often “sexual assault,” “sexual abuse,” or similar) even when “rape” itself remained focused on intercourse. Barrie, slip op. at 23–27. That pattern fit the court’s larger point: around 1996, criminal law was evolving and expanding protections, but the word “rape” was not yet a reliable umbrella for every form of nonconsensual penetration across jurisdictions.

The court’s treatment of the BIA’s Matter of Keeley

The BIA in Matter of Keeley took the view that aggravated felony “rape” should include a broader set of penetrative acts, including digital penetration, and the Board reasoned in part that statutory modernization had shifted many jurisdictions away from the narrow common-law framing. Matter of Keeley, 27 I. & N. Dec. at 147–53.

The Eleventh Circuit rejected that approach in direct terms. It joined the Fifth, Sixth, and Eighth Circuits in holding that generic “rape” in 1996 did not include digital penetration. Barrie, slip op. at 2, 13. In other words, the Eleventh Circuit treated Keeley not as a persuasive modernization of a generic definition, but as an expansion that conflicted with Congress’s textual and historical choices.

For a detailed discussion of the BIA’s reasoning in Keeley and the “aggravated felony rape” framework the Board adopted, see MyAttorneyUSA.com, “Matter of Keeley: Clarifying Scope of Aggravated Felony Rape.”

What Barrie does—and does not—decide

It is easy to overread Barrie as “saving” an immigrant from deportation. The decision is narrower and more procedural than that.

What it does decide: The Eleventh Circuit held that “rape” in INA § 101(a)(43)(A) does not include digital penetration, and therefore a conviction under a statute that reaches digital penetration does not categorically match aggravated felony “rape.” Barrie, slip op. at 2, 16. That holding invalidated the BIA’s decision to sustain removability on the aggravated felony rape theory. Barrie, slip op. at 2–3.

What it does not decide: The court did not hold that Barrie is not removable under any theory. DHS had also alleged a crime of violence aggravated felony, and the court remanded for the BIA to address other removability questions, including whether the attempted D.C. offense qualifies as an attempted crime of violence. Barrie, slip op. at 2–3. Depending on what the agency does on remand, Barrie could still face removal under a different aggravated felony ground or other deportability provisions.

For a broader primer on how aggravated felonies operate in removal proceedings (including why one aggravated felony theory can matter even when other charges remain), see MyAttorneyUSA.com, “Aggravated Felonies in the Immigration Context.” For background on the “crime of violence” aggravated felony definition in the wake of Sessions v. Dimaya, see MyAttorneyUSA.com, “Supreme Court Strikes Down One Clause of Aggravated Felony Crime of Violence Definition.”

How Barrie fits into Eleventh Circuit doctrine

The Eleventh Circuit has previously dealt with aggravated felony “rape” questions in a way that highlights the recurring role of divisibility. In George v. U.S. Att’y Gen., the court addressed a New York “sexual misconduct” statute that could cover both nonconsensual intercourse and age-based offenses, and the analysis turned on whether the statute was divisible and whether the modified categorical approach could identify the relevant element-set. George v. U.S. Att’y Gen., No. 18-14000, slip op. at 3–6 (11th Cir. Mar. 26, 2020).

Barrie is different. It is not primarily a divisibility case. It is a generic-definition case—one in which the court fixed the boundary of the generic offense itself. That distinction matters because generic-definition holdings travel broadly: once the circuit defines the generic meaning of “rape” in the INA, that definition becomes the measuring stick for a wide range of state statutes, not just the D.C. provision at issue.

Practical implications

Implications for the issue (generally). Barrie reinforces a trend in federal courts: aggravated felony labels do not automatically expand simply because state criminal codes broaden or modernize terminology. The Eleventh Circuit’s approach is text-first and time-bound. If Congress used “rape” in 1996 without redefining it, the court will anchor the generic definition to what that term ordinarily conveyed at that time—while recognizing that Congress used other, broader terms (like “sexual abuse”) when it wanted broader coverage.

In practical terms, litigating aggravated felony “rape” in the Eleventh Circuit now starts with a clear proposition: if the statute of conviction reaches digital penetration, the government cannot treat the conviction as aggravated felony “rape” unless it can narrow the statute through divisibility and the modified categorical approach.

For defense counsel advising noncitizens pre-plea, this matters in charge selection and plea negotiations. A statute (or subsection) that includes digital penetration as an element may avoid the “rape” aggravated felony label post-Barrie in the Eleventh Circuit—but counsel still must screen for other aggravated felony pathways (crime of violence; “sexual abuse of a minor” when age is an element; obstruction; controlled substance grounds; firearms grounds; etc.), and for CIMT and inadmissibility consequences.

Implications for the immigrant (specifically). For someone in Barrie’s position, the immediate benefit is procedural and strategic: the government’s “rape” aggravated felony theory fails on the categorical match the BIA relied on, so the removal order premised on that theory cannot stand as-is. Barrie, slip op. at 2–3. That can change the posture of the case on remand, potentially affecting detention arguments, eligibility for certain forms of relief, and the government’s leverage in litigating removability.

But the immigrant is not automatically “safe.” The government may press alternative theories—especially the aggravated felony crime of violence theory the Eleventh Circuit flagged for remand consideration. Barrie, slip op. at 2–3. The practical lesson for immigrants and counsel is to treat Barrie as a powerful tool for narrowing one aggravated felony category, not as a universal shield. The next step should be a careful, element-by-element audit of every charged ground of removability and every potentially applicable aggravated felony or CIMT theory—because Barrie can open a door, but what happens after that depends on what other legal pathways remain.

Endnotes (sources)

  1. Barrie v. U.S. Att’y Gen., No. 24-12504 (11th Cir. Feb. 19, 2026).
  2. Matter of Keeley, 27 I. & N. Dec. 146 (BIA 2017).
  3. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012).
  4. Keeley v. Whitaker, 910 F.3d 878 (6th Cir. 2018).
  5. Quito-Guachichulca v. Garland, 122 F.4th 732 (8th Cir. 2024).
  6. George v. U.S. Att’y Gen., No. 18-14000 (11th Cir. Mar. 26, 2020).