Ishmahil Barrie v. U.S. Attorney General

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 1 of 31

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12504

____________________

ISHMAHIL BARRIE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A203-161-749

____________________

Before JORDAN, HULL, and MARCUS, Circuit Judges.

HULL, Circuit Judge:

In 2014, Ishmahil Barrie, a citizen of Sierra Leone and lawful

permanent resident (“LPR”), was convicted of attempted

first-degree sexual abuse and kidnapping, in violation of D.C. Code

§§ 22-3002(a)(1), 22-3018, and 22-2001. In 2021, after Barrie served

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 2 of 31

2 Opinion of the Court 24-12504

his prison sentence, the U.S. Department of Homeland Security

(“DHS”) initiated removal proceedings against him. Under the

Immigration and Nationality Act (“INA”), a non-citizen is

removable from the United States if he has been convicted of an

aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). DHS’s removal

petition alleged, inter alia, that Barrie was removable because his

District of Columbia (“D.C.”) conviction for attempted first-degree

sexual abuse was an aggravated felony under the definitions in 8

U.S.C. § 1101(a)(43)(A) and (U). Those definitions include

(1) “murder, rape, or sexual abuse of a minor,” and (2) “an

attempt . . . to commit an” aggravated felony. Id. § 1101(a)(43)(A), (U).

Barrie argued that his D.C. offense was not an aggravated

felony because (1) the D.C. Code § 22-3002(a)(1) offense

criminalized the lesser act of forceful digital penetration, i.e.,

penetration by finger, and (2) the generic federal definition of rape

required forceful sexual intercourse by at least slight penetration of

the penis into a vagina but did not cover digital penetration.

The Immigration Judge (“IJ”) rejected Barrie’s argument and

ordered him removed. The Board of Immigration Appeals (“BIA”)

affirmed. Barrie petitions for review.

After review, and with the benefit of oral argument, we

grant Barrie’s petition. We join our sister circuits in concluding

that the generic federal definition of “rape,” as used in

§ 1101(a)(43)(A), does not include digital penetration.

See Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012); Keeley v.

Whitaker, 910 F.3d 878 (6th Cir. 2018); Quito-Guachichulca v.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 3 of 31

24-12504 Opinion of the Court 3

Garland, 122 F.4th 732 (8th Cir. 2024). Because the offense of

attempted first-degree sexual abuse under D.C. Code

§ 22-3002(a)(1) includes digital penetration, that offense does not

categorically fit the generic definition of rape in § 1101(a)(43)(A).

Thus, the BIA erred in concluding that Barrie’s § 22-3002(a)(1)

offense fell within the federal generic definition of rape and was an

aggravated felony under § 1101(a)(43)(A).

While we vacate the BIA’s decision, we also remand this

case to the BIA to address additional issues relating to Barrie’s

removability, such as whether the § 22-3002(a)(1) conviction for

attempted first-degree sexual abuse qualifies as an attempted crime

of violence.

I. BACKGROUND

A. Entry into the United States

In 2001, Barrie was admitted into the United States on a B-2

non-immigrant visitor visa. In 2011, Barrie obtained a green card

and became an LPR.

B. D.C. Convictions

In December 2013, Barrie was charged in the Superior Court

of D.C. with (1) one count of first-degree sexual abuse, in violation

of D.C. Code § 22-3002(a)(1), and (2) one count of kidnapping, in

violation of D.C. Code § 22-2001. In March 2014, Barrie pled guilty

to attempted first-degree sexual abuse and kidnapping pursuant to

a written plea agreement.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 4 of 31

4 Opinion of the Court 24-12504

The plea agreement contained a proffer of facts, which

described Barrie’s offense conduct as follows. On December 23,

2013, Barrie entered the home of his ex-girlfriend without her

permission. Barrie went into her bedroom where she was sleeping

and confronted her, refusing to leave. Barrie dragged the victim

into a closet and detained her there for approximately two hours.

Barrie covered her mouth when she tried to scream for help and

prevented her from leaving the closet when she struggled to

escape.

Eventually, Barrie let the victim out of the closet, at which

point she returned to her bed. Barrie then dragged her from the

bed onto the floor where he “forcibly penetrated her vagina with

his fingers against her will,” and “forcibly penetrated [her] vulva

with his penis, against her will.” The victim ran out of the

apartment and called the police for help.

In May 2014, Barrie was sentenced to 60 months of

imprisonment for his sexual-abuse offense and a consecutive 48

months of imprisonment for his kidnapping offense, for a total of

108 months of imprisonment.

C. Notice to Appear

In September 2021, DHS served Barrie with a notice to

appear (“NTA”) for removal proceedings. The government

alleged that Barrie was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) because he had been convicted of an

“aggravated felony” of (1) attempted rape as stated in 8 U.S.C.

§ 1101(a)(43)(A) and (U), and (2) a crime of violence as stated in 8

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 5 of 31

24-12504 Opinion of the Court 5

U.S.C. § 1101(a)(43)(F). The NTA also alleged that Barrie was

removable under 8 U.S.C. § 1227(a)(2)(A)(i) because he had been

convicted of a crime involving moral turpitude (“CIMT”)

committed within 5 years of admission into the United States. 1

D. Removability

Barrie admitted to the factual allegations in the NTA but

denied the removability allegations. Barrie argued that he was not

removable based on a CIMT conviction because his 2014 D.C.

convictions occurred more than five years after he was admitted

into the United States. Barrie also asserted that the offenses of his

2014 D.C. convictions did not qualify as aggravated felonies.

Specifically, he contended that (1) the D.C. offenses were not

“crimes of violence,” and (2) the D.C. offense of first-degree sexual

abuse was not a “rape” because that offense criminalized forceful

digital penetration, while the generic federal definition of rape

did not.

In its written brief, the government argued that the D.C.

sexual-abuse offense constituted an aggravated felony as both (1) a

crime of violence and (2) a rape.

The IJ concluded that Barrie was removable because the

D.C. offense of attempted first-degree sexual abuse was an

aggravated felony of attempted rape. But the IJ rejected the CIMT

1 The NTA originally charged Barrie with a theft aggravated felony conviction,

but it was amended to omit that charge and replace it with the crime of

violence charge.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 6 of 31

6 Opinion of the Court 24-12504

charge because the D.C. convictions occurred more than five years

after Barrie’s admission into the United States. The IJ, however,

did not address whether Barrie’s two D.C. convictions fell within

the crime of violence definition of an aggravated felony. The

CIMT and crime of violence issues were not litigated further in the

removal proceedings.

E. Requests for Relief from Removal

In 2022, Barrie then filed applications for (1) a waiver of

inadmissibility under 8 U.S.C. § 1182(h) based on the exceptional

and extremely unusual hardship his U.S. citizen wife and LPR

parents would suffer if he was removed to Sierra Leone;

(2) adjustment back to LPR status based on his marriage to a U.S.

citizen; and (3) deferral of removal under the United Nations

Convention Against Torture (“CAT”).

As to CAT relief, Barrie argued that it was more likely than

not that he would be tortured if he was removed to Sierra Leone

because of (1) his father’s political associations with the two major

political parties in Sierra Leone; (2) his mental health issues; and

(3) his status as a criminal deportee based on his D.C. convictions.

At an evidentiary hearing, the IJ heard testimony from

Barrie, his wife, his parents, and a series of expert witnesses in

forensic psychology, clinical psychology, and country conditions.

F. First IJ Order of Removal

On February 16, 2023, in a written order, the IJ denied

Barrie’s requests for relief from removal and ordered him removed

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 7 of 31

24-12504 Opinion of the Court 7

to Sierra Leone. The IJ found that Barrie failed to establish his

entitlement to a waiver of inadmissibility or CAT relief on any

ground.2 The IJ did not address the issue of removability and only

stated that the court already had determined that Barrie was

removable under § 1227(a)(2)(A)(iii).

G. First Appeal to the BIA

Barrie appealed the IJ’s removal order to the BIA. Barrie

argued that the IJ erred by concluding that the D.C. offense of

first-degree sexual abuse constituted an aggravated felony of rape

because the D.C. offense criminalized digital penetration, while the

generic federal definition of rape did not.3 Barrie asserted that the

BIA should overrule its precedential decision in Matter of Keeley, 27

I. & N. Dec. 146 (BIA 2017), rev’d sub nom., Keeley v. Whitaker, 910

F.3d 878 (6th Cir. 2018), in which it concluded that the generic

federal definition of rape included digital penetration. Barrie also

argued that the IJ erred by denying his requests for a waiver of

inadmissibility and CAT relief.

On August 11, 2023, the BIA dismissed Barrie’s appeal in part

but also remanded the case to the IJ for further proceedings. The

BIA concluded that Barrie was removable because his D.C.

2 The IJ also concluded that Barrie was not entitled to adjustment of status

because (1) his D.C. convictions rendered him inadmissible, and (2) he was not

entitled to a waiver of inadmissibility.

3 Barrie also argued that his D.C. kidnapping conviction was not a basis for

removal, and that the D.C. attempted sexual-abuse offense did not constitute

a crime of violence.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 8 of 31

8 Opinion of the Court 24-12504

conviction for attempted first-degree sexual abuse was for the

aggravated felony of attempted rape under 8 U.S.C.

§ 1101(a)(43)(A) and (U). The BIA reasoned that under Matter of

Keeley the generic federal offense of rape included digital

penetration, so the D.C. offense of sexual abuse was not

categorically broader than the generic rape offense. The BIA

declined to reach any of the other charges as to Barrie’s

removability. The aggravated felony of “rape” was a sufficient

basis alone for removal.

The BIA also adopted and affirmed the IJ’s denial of Barrie’s

request for a waiver of inadmissibility. However, the BIA

determined that the IJ erred in denying Barrie’s request for CAT

relief. The BIA concluded that the IJ (1) did not clearly err in its

analysis of any of the individual risks of torture that Barrie alleged

but (2) erred in failing to consider the aggregate risk of torture that

each individual risk posed when taken together. The BIA therefore

remanded the case to the IJ for the limited purpose of conducting

the necessary aggregation analysis for Barrie’s CAT claim.

H. CAT Remand Proceedings Before IJ

On remand, Barrie argued that it was more likely than not

that he would be tortured if he was removed to Sierra Leone when

the individual alleged risks of torture were considered in the

aggregate. Barrie’s brief again argued that his 2014 D.C.

sexual-abuse conviction was not for an aggravated felony of

attempted rape.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 9 of 31

24-12504 Opinion of the Court 9

In December 2023, the IJ held another evidentiary hearing

to hear further testimony and arguments relating to Barrie’s CAT

claim. At the hearing, the IJ declined to hear Barrie’s arguments as

to removability because that was outside of the scope of the BIA’s

limited remand directions.

On February 6, 2024, the IJ entered a written order denying

Barrie’s request for CAT relief and ordering him removed to Sierra

Leone. The IJ found that Barrie was not entitled to CAT relief

because he failed to establish that it was more likely than not that

he would be tortured if he was removed to Sierra Leone. The IJ

reasoned that the alleged risks of torture did not satisfy the standard

for CAT relief when considered either individually or in the

aggregate.

I. Second Appeal to the BIA

Barrie again appealed the IJ’s removal order to the BIA.

Barrie argued that the IJ erred (1) by denying his request for CAT

relief, and (2) by not addressing his removability arguments.

On July 29, 2024, the BIA affirmed the IJ’s order of removal.

The BIA adopted and affirmed the IJ’s denial of Barrie’s CAT claim.

The BIA determined that Barrie failed to show that it was more

likely than not that he would be tortured if he was removed to

Sierra Leone when his alleged risks of torture were considered

either individually or in the aggregate.

The BIA declined to address Barrie’s removability

arguments because its earlier remand was limited solely to the

CAT aggregation issue.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 10 of 31

10 Opinion of the Court 24-12504

On August 2, 2024, Barrie filed a timely petition for review

in this Court challenging the BIA’s July 29, 2024 order.

II. STANDARD OF REVIEW

This appeal requires us to decide whether the D.C. offense

of attempted first-degree sexual abuse in D.C. Code § 22-3002(a)

constitutes an aggravated felony of attempted rape as stated in

§ 1101(a)(43)(A) and (U).

We review de novo whether a non-citizen’s crime of

conviction constitutes an aggravated felony under § 1101(a)(43).

Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383 (11th Cir. 2018). We

review only the BIA’s decision regarding removability because it

did not adopt the IJ’s decision on that issue.4 Id. at 1383 n.2.

As this case involves an issue of statutory interpretation, we

must decide for ourselves the statute’s “single, best meaning”

without deferring to the BIA. Loper Bright Enters. v. Raimondo, 603

U.S. 369, 400, 412–13 (2024). We use the traditional tools of

statutory construction to “determine the best reading of [each]

statute.” Id. at 400.

4 When the BIA adopts the IJ’s decision, we review both the BIA’s and IJ’s

decisions. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). The BIA

adopted the IJ’s denial of a waiver of inadmissibility in the first appeal and the

denial of CAT relief in the second appeal. We, however, do not reach these

issues in this appeal.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 11 of 31

24-12504 Opinion of the Court 11

III. RELEVANT STATUTES

A. D.C. Code §§ 22-3002(a) and 22-3001(8)

The parties do not dispute that Barrie was convicted of

attempted first-degree sexual abuse under D.C. Code

§§ 22-3002(a)(1) and 22-3018. Section 22-3002(a) makes it a crime

when a “person engages in or causes another person to engage in

or submit to a sexual act . . . [b]y using force against that other

person.” D.C. Code § 22-3002(a) (2014) (emphasis added). In turn,

§ 22-3018 criminalizes attempts to commit sexual offenses,

including sexual abuse. Id. § 22-3018.

Section 22-3002 does not define the term “sexual act.”

Rather, D.C. Code § 22-3001 defines “sexual act” by a list of these

three alternatives:

(A) “The penetration, however slight, of the anus or

vulva of another by a penis;”

(B) “Contact between the mouth and the penis, the

mouth and the vulva, or the mouth and the anus;” or

(C) “The penetration, however slight, of the anus or

vulva by a hand or finger or by any object, with an

intent to abuse, humiliate, harass, degrade, or arouse

or gratify the sexual desire of any person.”

Id. § 22-3001(8)(A)–(C) (emphasis added). Subsection (D) of

§ 22-3001(8) further states, “The emission of semen is not required

for the purposes of subparagraphs (A)–(C) of this paragraph.” Id.

§ 22-3001(8)(D). We now turn to the statutory definition of

aggravated felony.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 12 of 31

12 Opinion of the Court 24-12504

B. 8 U.S.C. § 1101(a)(43) and the Categorical Approach

The INA lists twenty-one alternative definitions for

aggravated felony. 8 U.S.C. § 1101(a)(43). The first of these

definitions states that aggravated felony means “murder, rape, or

sexual abuse of a minor.” Id. § 1101(a)(43)(A). And an attempted

aggravated felony is itself an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(U).

The pivotal issue in this appeal thus becomes only whether

Barrie’s first-degree sexual abuse conviction was for the aggravated

felony of rape under § 1101(a)(43)(A).

In analyzing whether Barrie’s D.C. sexual abuse conviction

constitutes the aggravated felony of rape, we apply a doctrine

called the categorical approach. Esquivel-Quintana v. Sessions, 581

U.S. 385, 389 (2017). The categorical approach requires that we

look to the statute of conviction rather than the specific facts

underlying the crime. Id. We must ask whether the D.C. statute

defining the crime of conviction “categorically fits within the

generic federal definition” of rape. Id. (quotation marks omitted).

“In other words, we presume that the state conviction rested upon

the least of the acts criminalized by the statute, and then we

determine whether that conduct would fall within the federal

definition of the crime.” 5 Id. (quotation marks omitted and

alteration adopted).

5 For some statutes we must apply the modified categorical approach.

Descamps v. United States, 570 U.S. 254, 261–64 (2013) (a divisible statute lists

alternative elements and creates different crimes). If the statute of conviction

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 13 of 31

24-12504 Opinion of the Court 13

The parties agree that digital penetration is the least of the

acts criminalized by the D.C. statute. D.C. Code §§ 22-3002(a)(1),

22-3001(8)(C). Therefore, Barrie’s § 22-3002(a)(1) offense is an

aggravated felony of rape under § 1101(a)(43)(A) only if the generic

federal offense of rape includes digital penetration.

IV. GENERIC FEDERAL DEFINITION OF RAPE

In 1996, Congress added the term “rape” to the INA as an

aggravated felony. See Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-627.

Congress did not define “rape” or give a cross-reference to a

corresponding federal offense. So we must give the term “rape” its

ordinary meaning in 1996. See Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560, 566 (2012); Ins. Mktg. Coal. Ltd. v. Fed. Commc’ns

Comm’n, 127 F.4th 303, 313 (11th Cir. 2025).

To give the term “rape” its ordinary meaning, we use “the

normal tools of statutory interpretation.” Esquivel-Quintana, 581

U.S. at 391 (explaining that we interpret undefined terms in the list

of aggravated felonies using the normal tools of statutory

is divisible and creates different crimes—and does not instead simply

enumerate “various factual means of committing a single element”—then we

must determine which crime the non-citizen was convicted of by looking at a

limited class of documents. Mathis v. United States, 579 U.S. 500, 505–06 (2016).

Although there is an issue as to whether D.C. Code § 22-3002(a)(1) is divisible

based on the alternative definitions of “sexual act” in § 22-3001(8), we do not

address the divisibility issue in this appeal because neither the IJ nor the BIA

did so.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 14 of 31

14 Opinion of the Court 24-12504

interpretation). We must discern how the term “rape” was

“commonly understood” in 1996 at the time Congress used it.

Descamps v. United States, 570 U.S. 254, 257 (2013); see also Loper

Bright, 603 U.S. at 400 (“[E]very statute’s meaning is fixed at the

time of enactment.” (citation omitted)). To do so, we look to

relevant sources such as “[d]ictionary definitions, federal laws, state

laws, and the Model Penal Code.” Pugin v. Garland, 599 U.S. 600,

604 (2023); Esquivel-Quintana, 581 U.S. at 395–97 (reviewing “state

criminal codes for additional evidence about the generic meaning

of sexual abuse of a minor.”).

The Fifth, Sixth, and Eighth Circuits have considered the

issue, and each has concluded the federal generic definition of

“rape” in 1996 did not include digital penetration. For the reasons

stated below, we join our sister circuits. See Perez-Gonzalez, 667

F.3d at 625–27 (holding that digital penetration was not commonly

considered rape in 1996); Keeley, 910 F.3d at 882–84 (“[T]he generic

crime of rape in 1996 . . . . did not include digital penetration.”);

Quito-Guachichulca, 122 F.4th at 735–39 (“[T]he aggravated-felony

version of ‘rape’ excludes digital or mechanical penetration.”).

A. Statutory Text

The text of the INA itself is the most important guiding

factor to our statutory interpretation. Two features of the text of

§ 1101(a)(43)(A) are key here.

First, it is significant that Congress used the specific word

“rape.” That is because “[w]hen Congress uses a term with origins

in the common law, we generally presume that the term brings the

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 15 of 31

24-12504 Opinion of the Court 15

old soil with it.” Kousisis v. United States, 605 U.S. 114, 124 (2025)

(quotation marks omitted); see also Stokeling v. United States, 586

U.S. 73, 80 (2019) (“If a word is obviously transplanted from

another legal source, whether the common law or other

legislation, it brings the old soil with it.” (quotation marks omitted

and alteration adopted)). When Congress uses a term with a

traditional, common-law definition, we presume it intended to

invest the term with its traditional meaning as opposed to an

alternative one. See Garcia-Celestino v. Ruiz Harvesting, Inc., 843

F.3d 1276, 1291 (11th Cir. 2016).

The parties correctly do not dispute that the traditional

common-law definition of rape does not include digital

penetration. For example, the 1990 edition of Black’s Law

Dictionary defines “rape” as “[t]he unlawful carnal knowledge of a

woman by a man forcibly and against her will.” Rape, Black’s Law

Dictionary (6th ed. 1990). “Carnal knowledge” means “the act of a

man having sexual bodily connections with a woman” or “sexual

intercourse,” which occurs “if there is the slightest penetration of

the sexual organ of the female by the sexual organ of the male.”

Carnal Knowledge, Black’s Law Dictionary (6th ed. 1990). The 1999

edition of Black’s Law Dictionary describes this definition as the

“common law” definition. Rape, Black’s Law Dictionary (7th

ed. 1999).

Likewise, the traditional meaning of “rape” was also

contained in the 1996 edition of Webster’s Dictionary, which

defined “rape” as “the act of physically forcing a woman to have

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 16 of 31

16 Opinion of the Court 24-12504

sexual intercourse.” Webster’s Encyclopedic Unabridged Dictionary of

the English Language 1191 (1996). “Sexual intercourse” was

separately defined as “genital contact, . . . esp. the insertion of the

penis into the vagina followed by ejaculation.” Id. at 1308.

Consequently, Congress’s use of the word “rape” in

§ 1101(a)(43)(A)—without any other language suggesting that the

word should be defined differently from its common-law

meaning—demonstrates that Congress intended to define “rape”

according to that traditional meaning.

Second, and more importantly, in the same provision in

which it included “rape” in the definition of “aggravated felony,”

immediately after Congress used the term “sexual abuse of a

minor.” 8 U.S.C. § 1101(a)(43)(A) (defining “aggravated felony” as

“murder, rape, or sexual abuse of a minor”). By using the word

“rape” immediately preceding “sexual abuse of a minor,” Congress

distinguished between two separate but overlapping generic

offenses.

The fact that Congress used “rape” and “sexual abuse” next

to each other in the same provision indicates that it intended for

the two terms to have different, distinctive meanings. See Pulsifer

v. United States, 601 U.S. 124, 149 (2024) (“In a given statute, the

same term usually has the same meaning and different terms

usually have different meanings.”) (citing Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 170-71

(2012)). Given that Congress intended to give “rape” and “sexual

abuse” different meanings in § 1101(a)(43)(A), the best way to

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 17 of 31

24-12504 Opinion of the Court 17

distinctively define those two terms is (1) to presume that “rape,”

as a word with common-law roots, bears its traditional meaning,

and (2) to read “sexual abuse” as covering a broader range of sexual

acts than traditional rape, including digital penetration, as

discussed below.

Tellingly too, if “rape” and “sexual abuse” were to share the

same meaning in § 1101(a)(43)(A), then “sexual abuse of a minor”

would be unnecessary surplusage because it would be subsumed

by “rape,” which is not limited to a specific category of victims. A

broad reading of “rape” is thus contrary to the doctrine against

surplusage. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“We

are reluctant to treat statutory terms as surplusage in any setting.”

(quotation marks omitted)).

Accordingly, we conclude that the federal generic term

“rape” in § 1101(a)(43)(A) bears its narrow, traditional

common-law meaning and does not include digital penetration.

The text of § 1101(a)(43)(A) strongly, perhaps conclusively, yields

this result, but our conclusion is cemented by how Congress

differentiated between the words “rape” and “sexual abuse” in the

enactment and repeal of other statutes, as discussed below.

B. 1986 Repeal of Federal Rape Law

Prior to 1986, Congress criminalized the commission of

“rape” “within the special maritime and territorial jurisdiction of

the United States.” Pub. L. No. 80-772, 62 Stat. 683, 795 (1948)

(codifying “rape” at 18 U.S.C. § 2031). At that time, Congress did

not specifically define the word “rape” in § 2031, and courts

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 18 of 31

18 Opinion of the Court 24-12504

interpreted it based on its common-law definition. See, e.g., United

States v. Smith, 574 F.2d 988, 990 (9th Cir. 1978) (“Section 2031 of

title 18 has been interpreted to punish rape as defined at common

law, that is, carnal knowledge of a female by force or threat of

force.” (footnote omitted)).

In 1986, however, Congress repealed the federal offense of

“rape” and replaced it with the offenses of “sexual abuse” and

“aggravated sexual abuse.” Criminal Law and Procedure

Technical Amendments Act of 1986, Pub. L. No. 99-646, 100 Stat.

3592, 3620–23 (codified at 18 U.S.C. §§ 2241 and 2242). Congress

defined “aggravated sexual abuse” as “knowingly caus[ing] another

person to engage in a sexual act—(1) by using force against that

other person; or (2) by threatening or placing that other person in

fear that any person will be subjected to death, serious bodily

injury, or kidnapping.” 18 U.S.C. § 2241(a).

Like in D.C. Code § 22-3002(a), “sexual act” in the new 1986

federal law was defined to include both penetration by penis and

digital penetration. 18 U.S.C. § 2246(2)(A), (C). Unlike

common-law rape, the new federal offense of aggravated sexual

abuse (1) did not require that the perpetrator be a man and the

victim a woman; (2) did not necessarily require the use of force;

and (3) covered a broader range of sexual acts than just sexual

intercourse, including digital penetration. Id. §§ 2241,

2246(2)(A)–(D).

This change to the federal rape law, which occurred only ten

years prior to the 1996 amendment to the INA, clearly

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 19 of 31

24-12504 Opinion of the Court 19

demonstrates that Congress distinguished between the terms

“rape” and “sexual abuse.” By replacing the traditional offense of

“rape” with broader offenses called “sexual abuse,” Congress

proscribed a broader range of sexual acts than are covered by the

traditional definition of rape.

To effect this intent, Congress (1) used the term “sexual

abuse” instead of “rape” to make sure that courts would not

interpret the new offense according to the common-law definition

of rape, and (2) included an explicit definition for “sexual abuse”

rather than leaving it for courts to interpret. Compare Pub. L. No.

80-772, 62 Stat. 683, 795 (1948), with Pub. L. No. 99-646, 100 Stat.

3592, 3620–23 (Nov. 10, 1986). The 1986 amendment reflects

Congress’s understanding that a statute like the old federal rape

law, which used the word “rape” alone without any clarifying

definition, would lead courts to interpret the word “rape” based on

its common-law roots. See id.

In stark contrast, in the INA’s amended § 1101(a)(43)(A),

Congress used the word “rape” without any clarifying definition in

1996, like it did in the old federal rape law. Congress thus knew in

1996 that using the word “rape” without any explanation would

lead courts to interpret the word in light of its common-law roots.

This is powerful support for our statutory interpretation of the

“rape” and “sexual abuse” language in § 1101(a)(43)(A).

C. Violent Crime Control and Law Enforcement Act in 1994

How Congress used the word “rape” in other laws passed in

the years surrounding the 1996 amendment to the INA also

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 20 of 31

20 Opinion of the Court 24-12504

supports our statutory interpretation. In 1994, Congress passed the

Violent Crime Control and Law Enforcement Act (“VCCLEA”),

which, among other things, mandated that defendants convicted of

a serious violent felony be sentenced to life imprisonment if they

had previous convictions for serious violent felonies. Pub. L. No.

103-322, 108 Stat. 1796, 1982–84 (1994) (amending 18 U.S.C.

§ 3559). That law classified “assault with intent to commit rape” as

a serious violent felony. 18 U.S.C. § 3559(c)(2)(F)(i) (1994).

Notably, though, the law then broadly defined “assault with

intent to commit rape” as “an offense that has as its elements

engaging in physical contact with another person or using or

brandishing a weapon against another person with intent to

commit aggravated sexual abuse or sexual abuse (as described in

sections 2241 and 2242).” Id. § 3559(c)(2)(A) (1994). Congress thus

sometimes did define “rape” in more expansive terms. In the 1996

INA amendment, however, Congress gave no such broader

definition to “rape.”

Moreover, “rape” does not stand alone in § 1101(a)(43)(A); it

is paired with a reference to “sexual abuse of a minor.” And

because Congress undoubtedly meant to cover a broader range of

sex offenses against minors, “rape” must be the narrower of the

two terms and cannot have the same definition that it does in the

VCCLEA.

D. Prison Rape Elimination Act

That Congress knows how to define rape in broader terms

is also shown by the Prison Rape Elimination Act, enacted in 2003.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 21 of 31

24-12504 Opinion of the Court 21

In that Act, Congress again broadly defined “rape” as “the carnal

knowledge, oral sodomy, sexual assault with an object, or sexual

fondling of a person, forcibly or against that person’s will.” Pub. L.

No. 108-79, 117 Stat. 972, 988 (2003) (codified at 42 U.S.C.

§ 15609(9)(A), now 34 U.S.C. § 30309(9)(A)). The 2003 law then

defined “sexual assault with an object” to include the penetration,

however slight, of the victim’s “genital or anal opening of the

body” by the use of a hand, finger, or other object. 42 U.S.C.

§ 15609(10) (2003) (now 34 U.S.C. § 30309(10)).

In sum, all three of these laws show that Congress well

understood that if it wanted to give the word “rape” a definition

broader than its traditional, common-law meaning, it needed to

explicitly say so. See Quito-Guachichulca, 122 F.4th at 737 & n.2.

Otherwise, courts would continue to incorporate the narrow,

common-law definition according to the normal tools of statutory

interpretation, as we do here.

E. Dictionary Definitions

As already noted, dictionary definitions as of 1996 also

indicate that rape was still usually associated with its narrow,

traditional, common-law meaning, which did not include digital

penetration.

But by 1999 the entry for “rape” in Black’s Law Dictionary

did include both the narrow, common-law definition as well as a

broader definition. Rape, Black’s Law Dictionary (7th ed. 1999).

The latter definition was “[u]nlawful sexual activity (esp.

intercourse) with a person (usu. a female) without consent and usu.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 22 of 31

22 Opinion of the Court 24-12504

by force or threat of injury.” Id. That entry, however, explained

that most states had broadened the definition of “rape” in a similar

way, and some state statutes now called “rape” names like

“unlawful sexual intercourse,” “sexual assault,” “sexual battery,”

and “sexual abuse.” Id. The 1999 edition also defined “sexual

abuse” as “[a]n illegal sex act, esp. one performed against a minor

by an adult,” and cited to the broader definition of “rape.” Abuse,

Black’s Law Dictionary (7th ed. 1999). Some state statutes may

have adopted new statutory terms and definitions, but the fact

remains that the INA in 1996 had used only the traditional

word “rape.”

We recognize that the 1995 edition of Bryan Garner’s “A

Dictionary of Modern Legal Usage” defined “rape” according to its

narrow, traditional common-law meaning but also included a

broader definition. See Bryan A. Garner, A Dictionary of Modern

Legal Usage 733–34 (2d ed. 1995). Even so, that entry also explained

that the broader definition was now included because in the 1980s

a number of states had “abolished rape as a separate offense” and

created a new offense called “sexual assault” that covered a broader

range of sexual activity than traditional rape. Id.

Lastly, there’s the 1996 edition of Merriam-Webster’s

Dictionary of Law, which defined “rape” as “unlawful sexual

activity and usu. sexual intercourse carried out forcibly or under

threat of injury against the will usu. of a female or with a person

who is beneath a certain age or incapable of valid consent.”

Merriam-Webster’s Dictionary of Law 404 (1996). That entry then

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 23 of 31

24-12504 Opinion of the Court 23

included the common-law definition, which it explained “required

at least slight penetration of the penis into the vagina.” Id. There

was no mention of digital penetration. See id. The entry also

acknowledged that, while some states maintained the

common-law definition, most states had broadened the offense’s

scope, “esp. in terms of the . . . nature of the acts involved.” Id.

The INA in 1996 did no such thing.

F. Model Penal Code

The Model Penal Code (“MPC”) also did not define “rape”

to include digital penetration. In 1962, the MPC defined “rape” as

when a male “has sexual intercourse with a female not his wife,”

where the offender, among other alternatives, compels the victim

to submit by force. Model Penal Code § 213.1(1) (Am. L. Inst.,

Proposed Official Draft 1962). The MPC separately defines “sexual

intercourse” as including “intercourse per os [mouth] or per anum

[anus], with some penetration however slight.” Id. § 213.0(2).

The 1985 explanatory note to the rape provision explains

that the definition of “rape” “retains the traditional limitation of

rape to the case of male aggression against a female who is not his

wife,” but extends the traditional definition to include “intercourse

per os or per anum.” Id. § 213.1 explanatory note.

It is worth noting that the MPC separately criminalized

“deviate sexual intercourse by force or imposition” and “sexual

assault.” Id. §§ 213.2, 213.4. The latter of these offenses proscribed

“offensive” sexual contact, id. § 213.4, which shows that the

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 24 of 31

24 Opinion of the Court 24-12504

American Law Institute distinguished between the narrow offense

of “rape” and broader sexual offenses with different names.

G. State Statutes

To be sure, the law of sex offenses in the states was in a flux

in 1996. Nonetheless, the term “rape” in 1996 was generally

understood to not cover digital penetration. As of 1996,

twenty-four states still had an offense specifically called “rape,” and

of those states, only seven included penetration by finger or other

body part in the definition of the “rape” offense. 6

6 The states that had an offense called “rape” that did not include digital

penetration in its definition were Alabama, California, Georgia, Idaho,

Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New York,

North Carolina, Oklahoma, Oregon, Pennsylvania, Utah, and Virginia. See

Ala. Code §§ 13A-6-60, -61 (1996); Cal. Penal Code § 261 (1996); O.C.G.A.

§ 16-6-1 (1996); Idaho Code § 18-6101 (1996); Ind. Code § 35-42-4-1 (1996); Ky.

Rev. Stat. Ann. §§ 510.010, 040 (1996); La. Stat. Ann. §§ 14:41, 42 (1996); Md.

Ann. Code art. 27, §§ 462, 463 (1996); Miss. Code Ann. § 97-3-65 (1996); Mo.

Rev. Stat. § 566.030 (1996); N.Y. Penal Law §§ 130.00, 35 (1996); N.C. Gen.

Stat. § 14-27.2 (1996); Okla. Stat. tit. 21, § 1111 (1996); Or. Rev. Stat. § 163.375

(1996); 18 Pa. Cons. Stat. § 3121 (1996); Utah Code Ann. § 76-5-402 (1996); Va.

Code Ann. § 18.2-61 (1996).

The states that had an offense called “rape” that included digital penetration

were Arkansas, Kansas, Massachusetts, Ohio, South Dakota, Tennessee, and

Washington. See Ark. Code Ann. §§ 5-14-101, -103 (1996); Kan. Stat. Ann.

§§ 21-3501, -3502 (1996); Mass. Gen. Laws ch. 265, § 22 (1996); Ohio Rev. Code

Ann. §§ 2907.01, 02 (1996); S.D. Codified Laws §§ 22-22-1, -2 (1996); Tenn.

Code Ann. §§ 39-13-501, -502 (1996); Wash. Rev. Code §§ 9A.44.010, 040

(1996).

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 25 of 31

24-12504 Opinion of the Court 25

On the other hand, among the jurisdictions that did not have

an offense called “rape” but instead had broader sexual penetration

offenses under names like “sexual assault” and “sexual abuse,”

twenty-three states, D.C., and the federal government included

penetration by finger or other body part in those offenses, while

only three states did not. 7

7 The jurisdictions that did not have an offense called “rape” but instead had

broader sexual penetration offenses with different names that covered digital

penetration were Alaska, Arizona, Colorado, Connecticut, the District of

Columbia, Florida, Hawaii, Illinois, Iowa, Michigan, Minnesota, Montana,

Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Rhode Island,

South Carolina, Texas, Vermont, West Virginia, Wisconsin, and Wyoming.

See Alaska Stat. §§ 11.41.410, 11.81.900 (1996); Ariz. Rev. Stat. Ann.

§§ 13-1401, -1406 (1996); Colo. Rev. Stat. §§ 18-3-401, -402 (1996); Conn. Gen.

Stat. §§ 53a-65, -70 (1996); D.C. Code §§ 22-4101, -4102 (1996); Fla. Stat.

§ 794.011 (1996); Haw. Rev. Stat. §§ 707-700, -730 (1996); 720 Ill. Comp. Stat.

§§ 5/12-12, -13 (1996); Iowa Code §§ 702.17, 709.1 (1996); Mich. Comp. Laws

§ 750.520a, b (1996); Minn. Stat. §§ 609.341, 342 (1996); Mont. Code Ann.

§§ 45-2-101, 45-5-503 (1996); Neb. Rev. Stat. §§ 28-318, -319 (1996); Nev. Rev.

Stat. §§ 200.364, 366 (1996); N.H. Rev. Stat. Ann. §§ 632-A:1, 2 (1996); N.J. Stat.

Ann. §§ 2C:14-1, 2 (1996); N.M. Stat. Ann. § 30-9-11 (1996); R.I. Gen. Laws

§§ 11-37-1, -2 (1996); S.C. Code Ann. §§ 16-3-651, -652 (1996); Tex. Penal Code

Ann. § 22.021 (1996); Vt. Stat. Ann. tit. 13, §§ 3251, 3252 (1996); W. Va. Code

§§ 61-8B-1, -3 (1996); Wis. Stat. § 940.225 (1996); Wyo. Stat. Ann.

§§ 6-2-301, -302 (1996).

The states that did not have an offense called “rape” but instead had sexual

penetration offenses with different names that did not cover digital

penetration were Delaware, Maine, and North Dakota. See Del. Code Ann.

tit. 11, §§ 761, 775 (1996); Me. Stat. tit. 17-A, §§ 251, 253 (1996); N.D. Cent.

Code §§ 12.1-20-02, -03 (1996).

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 26 of 31

26 Opinion of the Court 24-12504

Additionally, many of the states that had an offense called

“rape” also had broader sexual penetration offenses under names

like “sexual assault” or “sexual abuse.” Those states generally

defined “rape” without including digital penetration but defined

the broader sexual penetration offenses to include a broader range

of sexual acts, including digital penetration. 8

This data shows that in 1996, the term “rape” was generally

understood to not cover digital penetration. When states had an

offense called “rape,” they commonly defined that offense without

including digital penetration in the definition of rape. Conversely,

when states wanted to proscribe a broader range of sexual acts that

were not covered by the traditional definition of “rape,” they did

so by creating new offenses with names like “sexual assault” and

8 The states that had both an offense called “rape” that did not cover digital

penetration and a separate sexual penetration offense that covered a broader

range of sexual acts, such as digital penetration, included California, Georgia,

Idaho, Indiana, Mississippi, Missouri, New York, North Carolina, Oklahoma,

Oregon, Pennsylvania, and Virginia. See Cal. Penal Code § 289 (1996);

O.C.G.A. § 16-6-22.2 (1996); Idaho Code § 18-6608 (1996); Ind. Code

§§ 35-42-4-2, 35-41-1-9 (1996); Miss. Code Ann. §§ 97-3-95, -97 (1996); Mo. Rev.

Stat. §§ 566.010, 060 (1996); N.Y. Penal Law § 130.67 (1996); N.C. Gen. Stat.

§§ 14-27.1, 4 (1996); Okla. Stat. tit. 21, § 1111.1 (1996); Or. Rev. Stat. § 163.411

(1996); 18 Pa. Cons. Stat. § 3125 (1996); Va. Code Ann. § 18.2-67.2 (1996). Of

the remaining states that had an offense called “rape” that did not cover digital

penetration—Alabama, Kentucky, Louisiana, Maryland, and Utah—each had

a “sexual abuse,” “sexual battery,” or “sexual offense” statute that banned

forcible digital penetration under some broader umbrella term (e.g., sexual

contact). See Ala. Code § 13A-6-66 (1996); Ky. Rev. Stat. Ann. § 510.110 (1996);

La. Stat. Ann. § 14:43.1 (1996); Md. Ann. Code art. 27, § 464C (1996); Utah

Code Ann. § 76-5-404 (1996).

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 27 of 31

24-12504 Opinion of the Court 27

“sexual abuse.” It was thus the common practice among the states

in 1996 to continue to define rape according to its traditional

meaning, at least with respect to the omission of digital

penetration.

H. The Government’s Argument

The government’s primary argument on appeal is that the

generic federal offense of rape in 1996 included digital penetration

because the majority of states in 1996 that had “rape-analogous”

sexual offenses—such as “sexual abuse” or “sexual

assault”—included digital penetration in those offenses. The

government asserts that it is irrelevant that the majority of states

that had an offense in 1996 specifically called “rape” did not include

digital penetration in that “rape” offense. It reasons that the

generic federal offense of rape should be interpreted consistently

with all “rape-analogous” state offenses that were in effect in 1996,

instead of just with those offenses that were specifically

called “rape.”

The government’s argument fails for several reasons.

Foremost, it does not adequately account for the text of

§ 1101(a)(43)(A). See Esquivel-Quintana, 581 U.S. at 396 n.3

(explaining that analysis of contemporaneous state offenses “is not

required by the categorical approach” but rather simply aids

statutory interpretation “by offering useful context”). As explained

above, that Congress used the terms “rape” and “sexual abuse”

next to each other in the same provision indicates the terms have

different, distinctive meanings.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 28 of 31

28 Opinion of the Court 24-12504

Further, in defining the federal generic offense of rape, our

task is to determine what the ordinary meaning of the word “rape”

was in 1996. See Taniguchi, 566 U.S. at 566. It is significant that the

majority of states that had an offense called “rape” defined it

consistent with that word’s traditional, common-law meaning,

while the majority of states that defined their “rape-analogous”

statutes broader than common-law rape did so using different

names. Those states that enacted “rape-analogous” offenses that

were not actually called “rape” likely did so to avoid association

with the traditional meaning of the word “rape.” This shows that

in 1996 the word “rape” was still commonly understood to

conform to its traditional meaning.

As the Eighth Circuit stated in rejecting an identical

argument, “What the government is essentially asking us to do is

agree that certain ‘analogous’ state crimes must count as rape and

then reverse engineer a definition to make sure they do. The

problem is that we are reading a statute, not writing one. Congress

said ‘rape.’ If it did not mean what it said, it could have passed a

different statute.” Quito-Guachichulca, 122 F.4th at 738 (citations

omitted).

As did the Eighth Circuit, we reject the government’s

argument that Congress intended for the generic federal offense of

rape to be as broad as the state “rape-analogous” offenses in effect

in 1996 that proscribed digital penetration. The text of

§ 1101(a)(43)(A) and the common understanding of the word

“rape” in 1996 establish that the generic federal definition of “rape”

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 29 of 31

24-12504 Opinion of the Court 29

does not include digital penetration. As a result, we hold that

(1) digital penetration is not included in the federal generic

definition of rape, and (2) thus Barrie’s D.C. Code § 22-3002(a)(1)

conviction is not a categorical match for the federal generic

definition of rape. 9

V. OTHER ISSUES

That limited holding, however, does not completely resolve

this case. Other issues remain regarding whether Barrie is

removable based on his D.C. convictions.

First, issues remain as to (1) whether, under the modified

categorical approach, D.C. Code § 22-3002(a)(1) is divisible based

on the alternative definitions of “sexual act” in § 22-3001(8); (2) if

§ 22-3002(a)(1) is divisible, which alternative definition of “sexual

act” in § 22-3001(8) was the basis for Barrie’s § 22-3002(a)(1)

conviction; and (3) whether that definition of “sexual act” then

categorically matches the federal generic offense of “rape” in

§ 1101(a)(43)(A). All we have held above is that digital penetration

9 We recognize that this result seems illogical. In pleading guilty, Barrie

admitted that he “forcibly penetrated her vagina with his fingers against her

will,” and “forcibly penetrated [her] vulva with his penis, against her will.”

Yet, under the Supreme Court’s categorical approach, we are required to

ignore Barrie’s conduct and instead pretend that he was only convicted for the

lesser act of digital penetration. See Mathis, 579 U.S. at 504. The Supreme

Court has required that we “close our eyes as judges to what we know as men

and women.” United States v. Davis, 875 F.3d 592, 595 (11th Cir. 2017). Because

that is what Supreme Court precedent requires, we must apply the law as it

currently stands.

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 30 of 31

30 Opinion of the Court 24-12504

is not included in the federal generic definition of “rape” in

§ 1101(a)(43)(A).

Second, the issue remains whether Barrie was convicted of

the aggravated felony of a “crime of violence.” See 8 U.S.C.

§ 1101(a)(43)(F) (stating that “aggravated felony” means “a crime

of violence . . . for which the term of imprisonment [is] at least one

year”); 18 U.S.C. § 16 (defining “crime of violence”); see also

Talamantes-Enriquez v. U.S. Att’y Gen., 12 F.4th 1340, 1347–48 (11th

Cir. 2021) (discussing § 1101(a)(43)(F)). This is because the

government alleged and argued before the IJ that § 22-3002(a)(1)

was both an aggravated felony of (1) rape and (2) a crime of

violence.

Since the BIA has not addressed these issues, we exercise our

discretion to remand these issues of removability to the BIA for

consideration in the first instance. See Talamantes-Enriquez, 12 F.4th

at 1348 (“When the BIA has not addressed an issue, we typically

follow the ordinary remand rule, which provides that the proper

course, except in rare circumstances, is to remand.” (quotation

marks omitted)).

Because we vacate the BIA’s decision affirming the IJ’s order

of removal, we also do not address at this juncture the issues

relating to the denial of Barrie’s claims for relief from removal;

USCA11 Case: 24-12504 Document: 44-1 Date Filed: 02/19/2026 Page: 31 of 31

24-12504 Opinion of the Court 31

more specifically, the denial of Barrie’s claim for a waiver of

inadmissibility and CAT relief. 10

VI. CONCLUSION

The BIA erred in its conclusion that the generic federal

definition of “rape” in 8 U.S.C. § 1101(a)(43)(A) includes digital

penetration and that Barrie’s D.C. conviction is a categorical match

to “rape” in § 1101(a)(43)(A). We thus grant Barrie’s petition for

review, vacate the BIA’s decision affirming the IJ’s order of

removal, and remand this case for further proceedings consistent

with this opinion.

PETITION GRANTED, VACATED AND REMANDED.

10 We also decline to address as unnecessary the issues raised by Barrie

regarding whether (1) the BIA was bound by Matter of Keeley, and (2) the IJ

should have considered Barrie’s removability arguments when the BIA

remanded the case after the first appeal.