Gattem, Srivenugopal v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2102
SRIVENUGOPALA GATTEM,
Petitioner,
v.
ALBERTO R. GONZALES,1
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A78 842 565
____________
ARGUED JANUARY 18, 2005—DECIDED JUNE 20, 2005
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Srivenugopala Gattem, a native
and citizen of India who overstayed his visa, seeks review
of a decision of the Board of Immigration Appeals (the
“Board” or “BIA”) which determined in relevant part that
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we have substituted the current Attorney General of the
United States, Alberto R. Gonzales, for his predecessor as the
named respondent.
2 No. 04-2102
when Gattem solicited a minor to engage in a sexual act, he
committed sexual abuse of a minor and therefore an ag-
gravated felony for purposes of section 101(a)(43)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A)
(the “INA”). That finding not only renders Gattem remov-
able from the United States, see 8 U.S.C. § 1227(a)(2)
(a)(iii), but also makes him ineligible for cancellation of re-
moval, see id. § 1229b(a)(3), and strips the judiciary of the
power to review the order of removal entered against him,
id. § 1252(a)(2)(C). Because the Board correctly concluded
that Gattem committed an aggravated felony, we deny in
part and dismiss in part Gattem’s petition for review.
I.
Gattem entered the United States lawfully in 1998 pur-
suant to a non-immigrant, employment-related H-1B visa.
His visa expired in January 2001, but Gattem remained
in this country beyond the expiration and later that year
married an American citizen. Gattem and his wife subse-
quently filed I-485 and I-130 applications seeking to have
him declared a permanent resident of the United States
based on their marriage. However, when they appeared
in November 2003 for their interviews on those applica-
tions, Gattem was taken into custody by Immigration
and Customs Enforcement. He was notified that he was
subject to removal from the United States on three different
grounds, the third of which was eventually dropped and
replaced with the ground relevant here, which is that
following his entry into the United States, he had been
convicted of an aggravated felony as defined in section
101(a)(43)(A) of the INA—namely, sexual abuse of a
minor—and was therefore removable pursuant to section
237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii).
The conviction that the government characterized as
an aggravated felony was a 2002 conviction in the
No. 04-2102 3
Circuit Court of Du Page County, Illinois, for solicitation of
a sexual act. The Illinois statute pursuant to which Gattem
was convicted provides:
Any person who offers a person not his or her spouse
any money, property, token, object, or article or any-
thing of value to perform any act of sexual penetration
as defined in Section 12-12 of this Code, or any touch-
ing, or fondling of the sex organs of one person by
another person for the purpose of sexual arousal or gra-
tification, commits the offense of solicitation of a sexual
act.
720 ILCS 5/11-14.1(a). The verified criminal complaint
alleging Gattem’s violation of this provision alleged that
Gattem had “offered [Jane Doe]2, a juvenile under the age
of 18, and a person not his spouse, free cigarettes in ex-
change for oral sex, while at the Convenient Foods, 3012
Hobson Road, Woodridge, IL.” A.R. 96. Solicitation of a
sexual act in violation of section 5/11-14.1(a) is a Class B
misdemeanor, see 720 ILCS 5/11-14.1(b), and following his
conviction, Gattem was sentenced to 24 months of proba-
tion. A.R. 94.3
The government took the position that the crime of which
Gattem had been convicted constituted “sexual abuse of a
2
We have substituted a pseudonym for the name of the victim in
deference to her privacy interests.
3
The complaint against Gattem also alleged that he offered to
distribute a pornographic video to the minor and asked her
whether she wanted to smoke cannabis with him. A.R. 95. Those
allegations formed the bases for two separate charges of offering
to distribute or exhibit harmful material to a minor, see 720 ILCS
5/11-21(a), and contributing to the delinquency of a minor, see 720
ILCS 130/2a. However, the judgment of conviction indicates that
Gattem was convicted solely of the charge that he solicited a sex
act. A.R. 94.
4 No. 04-2102
minor,” and for that reason qualified as an “aggravated
felony” for purposes of INA section 101(a)(43)(A). When he
appeared before an Immigration Judge (“IJ”), Gattem
contested the government’s assertion. Gattem acknowl-
edged the conviction and admitted that the individual from
whom he had solicited a sexual act was a juvenile. A.R. 35.4
But he denied that the conviction amounted to the sexual
abuse of a minor and therefore an aggravated felony. He
conceded that he was removable on the other two grounds
identified by the government.
The IJ sustained the government’s position. He noted first
that Gattem’s conviction, although for a misdemeanor
offense, could nonetheless qualify as an aggravated felony
for purposes of the INA. A.R. 35 (citing Guerrero-Perez v.
4
The IJ’s decision states that Gattem “admits that the crime
for which he was convicted, solicitation of a sexual act[,] involved
a juvenile under 17 years of age . . . .” A.R. 34. That observation
is consistent with the amendment to the notice of removability
issued to Gattem, which alleged that “[y]our [Gattem’s] conviction
for Solicitation of a Sexual Act in violation of 720, section 5/11-
14.1(a) of the Illinois Revised Statutes involved a juvenile under
the age of 17 . . . by the name of [Jane Doe].” A.R. 211. In pro-
ceedings before the IJ, Gattem formally admitted that allegation
through his counsel. A.R. 50. We note, however, that we can find
no evidence in the record confirming that the juvenile was, in fact,
below the age of 17. Count 3 of the complaint filed against Gattem
in state court, which is the sole source of details as to the nature
of his offense, alleged only that the victim was under the age of 18.
A.R. 96. Count 2 of the complaint, which charged that Gattem had
contributed to the delinquency of a minor, alleged that the victim
was under 17 years of age, A.R. 95, but Gattem evidently was not
convicted on that count, see A.R. 94. We are left to wonder,
therefore, whether the government meant to allege, and Gattem
meant to admit, that the juvenile was 17 years of age or under.
We need not resolve our doubts on this point, however, for the
precise age of the juvenile does not matter to our analysis.
No. 04-2102 5
INS, 242 F.3d 727 (7th Cir. 2001)). As for whether the
offense constituted sexual abuse of a minor, the IJ, relying
on the Board’s decision in In re Rodriguez-Rodriguez, 22
I. & N. Dec. 991 (BIA 1999), looked to 18 U.S.C. § 3509(a)(8)
for guidance. That provision broadly defines sexual abuse
to include, among other things, the “inducement” of a child
to engage in a sexual act as well as “other form of sexual
exploitation of children.” The IJ found that Gattem’s solici-
tation of a minor met those criteria and so qualified as
sexual abuse of a minor and in turn an aggravated felony
for purposes of INA section 101(a)(43)(A). A.R. 36. As a
result, Gattem was not only removable under section
237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), but
ineligible for cancellation of removal under section
240A(a)(3), 8 U.S.C. § 1229b(a)(3).
Gattem took an appeal to the BIA, which agreed with the
IJ that Gattem’s conviction was one for sexual abuse of a
minor. Consulting the definition of “sexual abuse” found in
section 3509(a)(8) as it had in Rodriguez-Rodriguez, the
Board concluded that soliciting a minor in violation of the
Illinois statute fell within the scope of that definition:
The . . . Illinois statute clearly satisfies
[section 3509(a)(8)’s] definition as the respondent was
convicted thereunder for persuading a minor to engage
in sexual conduct. Persuading or inducing a child [to]
engage in sexually explicit conduct involves sexual
abuse of a minor.
A.R. 3 (footnote omitted).
II.
Our jurisdiction in this case is limited. The INA, as
amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, strips the judiciary of authority
to review any final order of removal against an alien who is
6 No. 04-2102
removable by reason of having committed an aggravated
felony. See 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii). The
BIA, of course, determined that Gattem had committed
such a felony. Nonetheless, we retain the authority to as-
sess our own jurisdiction, Land v. Dollar, 330 U.S. 731, 739,
67 S. Ct. 1009, 1013 (1947), overruled on other grounds by
implication by Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 69 S. Ct. 1457 (1949), and as we ex-
plained in Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997),
“[w]hen judicial review depends on a particular fact or legal
conclusion, then a court may determine whether that
condition exists.” Consequently, we have jurisdiction to
determine whether, as the BIA held, Gattem indeed is
removable by reason of having committing an aggravated
felony—in particular, the sexual abuse of a minor. Id.; see
also, e.g., Espinoza-Franco v. Ashcroft, 394 F.3d 461, 464
(7th Cir. 2005) (per curiam); Lara-Ruiz v. INS, 241 F.3d
934, 938-39 (7th Cir. 2001). Moreover, section 106(a)(1)
(A)(iii) of the REAL ID Act of 2005, signed into law on
May 11 of this year, adds the following qualification to
the jurisdiction-stripping provision found in section
1252(a)(2)(C) of the INA:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section) which
limits or eliminates judicial review, shall be construed
as precluding review of constitutional claims or ques-
tions of law raised upon a petition for review filed with
an appropriate court of appeals in accordance with this
section[.]
119 Stat. 231, 310. Section 106(b) of the new legislation
provides that “[t]he amendments made by subsection (a)
shall take effect upon the date of enactment of this division
and shall apply to cases in which the final administrative
order of removal, deportation, or exclusion was issued
before, on, or after the date of the enactment of this divi-
sion.” 119 Stat. at 311. Thus, to the extent that the Board’s
No. 04-2102 7
holding turned on its construction of the INA, and in
particular the meaning of “sexual abuse of a minor,” it
presents a question of law that Congress has given us the
power to address.
Generally speaking, we review questions of law, including
jurisdictional questions, de novo. E.g., Ali v. Ashcroft, 395
F.3d 722, 726 (7th Cir. 2005); Lara Ruiz, 241 F.3d at 939.
As always, however, we owe the Board deference in its
interpretation of the INA. INS v. Aguirre-Aguirre, 526 U.S.
415, 424-25, 119 S. Ct. 1439, 1445-46 (1999); INS v.
Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S. Ct. 1207,
1221 (1987). Because Congress did not define what consti-
tutes sexual abuse of a minor for purposes of the INA, it has
fallen to the Board to give the term meaning on a case by
case basis. Therefore, insofar as the Board’s holding as to
Gattem turns on an interpretation of the INA, we must
defer to that construction so long as it is “consistent with
the language and purposes of the statute.” Aguirre-Aguirre,
526 U.S. at 426; 119 S. Ct. at 1446.
The INA defines the term “aggravated felony” to mean,
among other offenses, “murder, rape, or sexual abuse of
a minor[.]” 8 U.S.C. § 1101(a)(43)(a). As we have noted, the
statute does not in turn identify what offenses fall under
the rubric of “sexual abuse of a minor.” The Attorney
General of the United States, who is charged with the ad-
ministration and enforcement of the INA, has delegated
that interpretative task to the Board as the need arises
in removal proceedings. Rodriguez-Rodriguez, 22 I. & N.
Dec. at 994 (citing 8 C.F.R. § 3.1 (1999)).
Because “removal proceedings are a function of federal
law,” the Board has sought out a federal standard for what
constitutes sexual abuse of a minor. Rodriguez-Rodriguez,
22 I. & N. Dec. at 995. Several different provisions of the
Federal Code of Crimes and Criminal Procedure offer
8 No. 04-2102
definitions of sexual abuse,5 and from these the Board has
selected the broadest, which is found at 18 U.S.C.
§ 3509(a)(8). That provision of the Code empowers a federal
court in certain cases where the victim or witness is a child
to take a variety of measures aimed at protecting the child,
including, for example, allowing the child to give testimony
via closed-circuit television or videotaped deposition,
§ 3509(b), and appointing a guardian ad litem for the child,
§ 3509(h). Among the proceedings in which these protective
measures are available are cases in which a child is alleged
to be a victim of sexual abuse. See § 3509(a)(2)(A). The
statute supplies the following definition of sexual abuse:
[T]he term “sexual abuse” includes the employment,
use, persuasion, inducement, enticement, or coercion of
a child to engage in, or assist another person to engage
in, sexually explicit conduct or the rape, molestation,
prostitution, or other form of sexual exploitation of
children, or incest with children[.]
§ 3509(a)(8).6 The BIA believed that this definition best
reflected the full range of criminal conduct that reasonably
can be understood to constitute sexual abuse of a minor.
The Board noted, for example, that just as “abuse” generally
can involve mental as well as physical mistreatment, sexual
abuse of a minor may or may not entail physical contact;
and the terms of section 3509(a) were broad enough to
account for that reality. Rodriguez-Rodriguez, 22 I. & N.
Dec. at 996. The Board also noted that “states categorize
and define sex crimes against children in many different
ways[,] and [we] find that 18 U.S.C. § 3509(a) better cap-
tures this broad spectrum of sexually abusive behavior.” Id.5
See 18 U.S.C. §§ 2242, 2243(a), 2246(2) & (3), and 3509(a)(8).
6
“Sexually explicit conduct” is in turn defined to include a broad
range of sexual behavior including, as relevant here, oral sex.
§ 3509(a)(9)(A).
No. 04-2102 9
By contrast, the other definitions found in the Criminal
Code were too narrow to fully encompass that spectrum and
in that sense were inconsistent with the evident congressio-
nal intent “to remove aliens who are sexually abusive
toward children and to bar them from any relief. Id.
The Board was at pains to emphasize, however, that al-
though it would look to section 3509(a)(8) for illumination
as to what constitutes sexual abuse of a minor, it did not
intend that definition to be dispositive for purposes of
section 101(a)(43)(A). “We are not adopting this statute as
a definitive standard or definition but invoke it as a guide
in identifying the types of crimes we would consider to be
sexual abuse of a minor.” Id.
We previously have concluded that the BIA’s resort to
section 3509(a)(8) and its broad definition of sexual abuse
for guidance is reasonable. In Lara-Ruiz, 241 F.3d at 941-
42, we rejected the notion that the Board was obliged to de-
fine sexual abuse for purposes of section 101(a)(43)(A) with
reference to the more narrow standards found elsewhere in
the Criminal Code, including in particular 18 U.S.C.
§ 2243(a), which establishes the federal offense of sexually
abusing a minor.7
Congress did not define sexual abuse of a minor by
expressly referencing any other provision of the U.S.
Code, as it did with respect to other terms in
§ 101(a)(43). Congress’ decision not to limit
7
Section 2243(a) criminalizes the sexual abuse of a minor in the
following terms: “Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison, knowingly
engages in a sexual act with another person who—(1) has attained
the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging; or
attempts to do so, shall be fined under this title, imprisoned for
not more than 15 years, or both.”
10 No. 04-2102
§ 1101(a)(43)(A) in a similar fashion is conspicuous, and
it strongly suggests that Congress intended to give a
broad meaning to the term “sexual abuse of a minor.”
Moreover, since § 2243 creates a substantive federal
offense, while § 101(a)(43)(A) merely attaches immigra-
tion consequences to criminal acts already committed,
it would have been reasonable for Congress to intend a
broader definition for the latter provision. Finally, as
the BIA noted in In re Rodriguez-Rodriguez, Interim
Dec. No. 3411, 1999 WL 731793 (BIA 1999), “sexual
abuse” is defined more broadly in 18 U.S.C. § 3509 than
it is in § 2243. This further undermines Lara-Ruiz’
argument because, even if we were to accept his mis-
guided premise that § 101(a)(43)(A)’s definition of
sexual abuse of a minor should be exhaustively defined
by reference to some other single statutory provision,
Lara-Ruiz offers no good reason why we must refer to
§ 2243 rather than to § 3509. . . .
241 F.3d at 942 (citations omitted). More recently, in
Espinoza-Franco, 394 F.3d at 464-65, we again emphasized
that “Congress intended the phrase ‘sexual abuse of a
minor’ to broadly incorporate all acts that fall within the
‘ordinary, contemporary, and common meaning of the
words’ ” (quoting United States v. Martinez-Carillo, 250 F.3d
1101, 1104 (7th Cir. 2001)) and that the reach of the phrase
need not be limited to the more narrow definitions found in
other provisions of the Criminal Code. Lara-Ruiz and
Espinoza-Franco put to rest our dissenting colleague’s
contention that the Board has gone astray in choosing
section 3509(a)(8) as a reference point in assessing the
nature of an alien’s conviction.
In this case, the Board had no difficulty concluding that
Gattem’s solicitation offense was within the range of con-
duct that section 3509(a)(8) describes as sexual abuse of a
minor. The statute indicates that persuading, inducing, or
enticing a minor to engage in sexually explicit conduct
No. 04-2102 11
amounts to sexual abuse. In the Board’s view, when Gattem
offered a minor cigarettes if she would engage in oral sex
with him, he was using persuasion or inducement in an
effort to convince her to engage in sexually explicit conduct.
A.R. 3. We can find no fault with the Board’s analysis.
The approach to identifying those state crimes that
Congress intended to be treated as aggravated felonies for
purposes of the INA is “categorical”: one looks to the ele-
ments of the state offense in question and, where necessary,
to the charging document pursuant to which the petitioner
was convicted, to determine whether the offense corre-
sponds to one of the crimes described as aggravated felonies
in the INA. Espinoza-Franco, 394 F.3d at 465; Lara-Ruiz,
241 F.3d at 941.
Here, the Illinois statute pursuant to which Gattem was
convicted reaches conduct aimed at adults as well as
minors: it proscribes the solicitation of sexual contact from
anyone not the defendant’s spouse. 720 ILCS 5/11-14.1(a).
But the complaint issued against Gattem indicates that he
solicited a minor, A.R. 96; and there is no dispute at this
juncture that the individual he solicited was under the age
of 18. And although the Illinois offense is a misdemeanor,
there is also no dispute that a misdemeanor can nonethe-
less qualify as an aggravated felony so long as it otherwise
amounts to sexual abuse of a minor. See Guerrero-Perez,
242 F.3d 727; see also Gattem Br. at 12 (noting that Gattem
does not challenge, inter alia, the notion that his mis-
demeanor conviction can qualify as an aggravated felony for
purposes of the INA).
Gattem contends that if the offense involves only words,
without any threat or coercion, then it causes no harm to
the minor that would permit it to be described as sexual
abuse. Thus, although the crime proscribed by the Illinois
statute—when (as here) the victim is a minor—neatly
corresponds with the definition of sexual abuse found in
12 No. 04-2102
section 3509(a)(8) in that it involves the persuasion, in-
ducement or enticement of a minor to engage in sexually
explicit activity, Gattem contends that it is nonetheless
inappropriate to categorize his offense as sexual abuse of a
minor.
The Attorney General responds that the ordinary mean-
ing of sexual abuse encompasses verbal conduct that is not
overtly threatening or coercive. Abuse, in the Attorney
General’s view, involves the misuse of authority and, as the
Board pointed out in Rodriguez-Rodriguez, can take the
form of physical or mental mistreatment. He therefore
reasons that sexual abuse can include verbal conduct that
takes improper advantage of an adult’s seniority and prox-
imity to a minor.
We agree with the Board and the Attorney General that
Gattem’s conviction is properly classified as one for sexual
abuse of a minor. Although it may be true, as Gattem
argues, that solicitation in the abstract is not necessarily
coercive or threatening, we think that there is an inherent
risk of exploitation, if not coercion, when an adult solicits a
minor to engage in sexual activity. Minors as a group have
a less well-developed sense of judgment than adults, and
thus are at greater peril of making choices that are not in
their own best interests. See Bellotti v. Baird, 443 U.S. 622,
635, 99 S. Ct. 3035, 3044 (1979) (“during the formative
years of childhood and adolescence, minors often lack the
experience, perspective, and judgment to recognize and
avoid choices that could be detrimental to them”). Thus,
when a minor is offered an item of value—here, contraband
(cigarettes) that a minor could not legally obtain herself—in
exchange for having sex with an adult, she may well be
incapable of fully appreciating the consequences of yielding
to the lure of the offer. Because minors are, in this respect,
more susceptible to corrupt influences, it is reasonable to
think of an adult’s solicitation of a minor to be abusive in
the sense of exploiting the minor’s vulnerabilities. Of
No. 04-2102 13
course, a conviction for solicitation requires no proof that
the minor accepted the offer, let alone engaged in any
sexual activity. But that is the obvious goal an offer like the
one that Gattem made; and solicitation, like attempt, is
deemed a crime because the defendant has embraced an
unlawful objective and taken one or more steps in pursuit
of it, exposing his victim and society to a risk of injury that
might have materialized but for the intervention of the
authorities or some other fortuitous turn of events. See
United States v. Hsu, 155 F.3d 189, 203 (3d Cir. 1998) (“The
law of attempts was traditionally viewed as a way ‘to deal
with conduct which create[d] a risk of immediate harmful
consequences.’ ”) (quoting Wayne R. LaFave & Austin W.
Scott, Jr., Substantive Criminal Law, § 6.5(b), at 91 (2d ed.
1986)); see also 4 Charles E. Torcia, Wharton’s Criminal
Law, § 671, at 523-24 (15th ed. 1996). There is no dispute
that Gattem would be guilty of sexually abusing a minor
had she actually had sex with him in exchange for the
cigarettes. As it was, he asked a minor to engage in sex
with him and offered her an inducement to say yes. Given
that minors lack the mature judgment of adults, there was
a genuine risk that she might have acceded to his request
and suffered any number of grave consequences that she
could not have envisioned in the way that an adult could.
See United States v. Shannon, 110 F.3d 382, 387-88 (7th
Cir. 1997) (en banc). That—not to mention treating a girl as
if she were a prostitute—was the harm in asking. See State
v. Tarbay, 810 N.E.2d 979, 982, 984 (Ohio App. Ct. 2004).
Our colleague suggests that in focusing on the potential
harm to the juvenile had she said yes to Gattem’s proposal
rather than on the actual harm (if any) resulting from the
rebuffed solicitation, we are improperly redefining sexual
abuse of a minor as attempted sexual abuse. Post at 18.
Noting that until now the cases on this issue all have in-
volved actual sexual acts (including touching or exposure),
post at 16, our colleague believes that the Board is obliged
14 No. 04-2102
to offer some justification for treating a simple solicitation
as sexual abuse, for words themselves are not acts, post at
18. But section 3509(a)(8) does refer to the persuasion,
inducement, or enticement of a child to engage in sexually
explicit conduct, and even if that language is construed to
mean that the child must actually have been persuaded,
induced, or enticed to participate in a sexual act, see post at
16, logic does not foreclose the Board from taking note of an
unsuccessful effort to lure a child into sexual activity.
Federal criminal law punishes inchoate offenses along with
completed crimes. See, e.g., 21 U.S.C. § 846. Thus, it can
hardly be considered surprising, let alone unreasonable, for
the Board to include within the realm of sexual abuse an
attempt to persuade, induce, or entice a child to engage in
a sexual act. Indeed, the INA explicitly provides that an
attempt or conspiracy to commit any of the other offenses
identified in the statute as aggravated felonies shall itself
be considered an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(U).
We acknowledge that categorizing Gattem’s conviction as
an aggravated felony, which both renders him subject to
removal and bars him from seeking relief, may to some
seem like a harsh result. But we believe that result to be
consistent with congressional intent. Construing sexual
abuse of a minor broadly to include the crime of soliciting a
minor is reasonable notwithstanding the absence of any
physical contact with or threat against the minor, given the
inherent risk of exploitation that soliciting a minor pres-
ents.
III.
The BIA correctly categorized Gattem’s Illinois conviction
for solicitation as sexual abuse of a minor for purposes of
section 103(a)(43)(A) of the INA. Because Gattem is remov-
No. 04-2102 15
able by reason of having committed an aggravated felony,
we have no jurisdiction to (further) review the BIA’s order
of removal and do not reach the other issue that Gattem
has raised, which concerns the IJ’s discretionary refusal to
continue the removal proceeding pending the adjudication
of the I-130 application for adjustment of status that his
wife filed on his behalf. 8 U.S.C. § 1252(a)(2)(C); see Flores
v. Ashcroft, 350 F.3d 666, 669 (7th Cir. 2003).8 We therefore
DENY IN PART and DISMISS IN PART Gattem’s petition for
review.
POSNER, Circuit Judge, dissenting. Gattem was ordered
removed from this country on the basis of his having
violated an Illinois misdemeanor statute by offering a girl
who had not yet reached the age of 18 a pack of cigarettes
in exchange for her performing oral sex on him. The statute
provides that “any person who offers a person not his or her
spouse . . . anything of value to perform any [sexual] act . . .
commits the offense of solicitation of a sexual act.” 720
ILCS 5/11-14.1(a). Neither Gattem’s age at the time of the
offense, nor the girl’s, was indicated, other than her being
under 18; nor is there any suggestion that the girl accepted
Gattem’s offer. He was sentenced not to prison, but to 24
months on probation.
The statute under which he was removed, a part of
the Immigration and Nationality Act, makes an alien
8
This second issue does not, in our view, present a question of
law, and therefore has not been placed within our jurisdiction by
section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, discussed
supra at 6-7.
16 No. 04-2102
removable if he commits an “aggravated felony,” defined as
“murder, rape, or sexual abuse of a minor.” 8 U.S.C.
§§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). The term “sexual abuse
of a minor” is not defined. Casting far afield, the Board of
Immigration Appeals in In re Rodriguez-Rodriguez, 22 I. &
N. Dec. 991 (BIA 1999), found a statute that defines the
term as including “the employment, use, persuasion,
inducement, or coercion of a child to engage in . . . sexually
explicit conduct.” 18 U.S.C. § 3509(a)(8). I say far afield
because it is not a statute that criminalizes sexual abuse;
rather, it provides procedural protections for child victims
and child witnesses, such as allowing a child to give
testimony via closed-circuit television rather than in person
if the child is alleged to be a victim of sexual abuse. 18
U.S.C. § 3509(b)(1).
Applying the statute to this case—the sole ground on
which Gattem has been deemed removable—is doubly odd
because it is unclear whether “persuasion” or “inducement”
includes unsuccessful efforts to persuade or induce. One can
be induced or persuaded without being employed (sug-
gesting prostitution), though successful inducement or per-
suasion would result in the “use . . . of a child to engage
in . . . sexually explicit conduct.” The previous reported
cases all involved touching or exposure rather than failed
persuasion or inducement. Espinoza-Franco v. Ashcroft, 394
F.3d 461, 463 (7th Cir. 2005); Guerrero-Perez v. INS, 242
F.3d 727, 730 (7th Cir. 2001); Mugalli v. Ashcroft, 258 F.3d
52, 53-54 (2d Cir. 2001); United States v. Zavala-Sustaita,
214 F.3d 601, 602-03 (5th Cir. 2000). My colleagues ac-
knowledge that the language of the statute might be
“construed to mean that the child must actually have been
persuaded, induced, or enticed to participate in a sexual
act,” but they add that “logic does not foreclose the Board
from taking note of an unsuccessful effort to lure a child
into sexual activity.” True—but there is no indication that
the Board has noticed, let alone “taken note,” of the differ-
No. 04-2102 17
ence. Nor is it easy to see how a state misdemeanor be-
comes translated not only into a felony, but into an “aggra-
vated felony,” for removal purposes.
Without more detail concerning Gattem’s crime, I am
unconvinced that the Board made a rational judgment in
classifying it as an “aggravated felony.” The number of
unmarried teenaged girls in this country who have engaged
in sexual intercourse, let alone in oral sex, is in the mil-
lions; for of all girls in 11th grade (few of whom would have
turned 18), 53.1 percent have had sexual intercourse.
Centers for Disease Control and Prevention, “Youth Risk
Behavior Surveillance-United States 2003,” Morbidity &
Mortality Weekly, May 21, 2004, p. 18. Oral sex is even
more common; in a study of ninth graders, half again as
many were found to have had oral as vaginal sex. Bonnie L.
Halpern-Felsher et al., “Oral Versus Vaginal Sex Among
Adolescents: Perceptions, Attitudes, and Behavior,” Pediat-
rics, Apr. 2005, p. 847. Solicitation of such girls to engage in
sex must be common. That doesn’t make it right; and
circumstances of course alter cases: the younger the girl, the
older the man, and the more insistent or prurient the
means of inducement employed, the likelier is the solicita-
tion of an underage girl or boy for sex to be a serious crime
even if the solicitation is unsuccessful. But we have no
details beyond the bare sketch with which I began. We
cannot let our imaginations roam; if we could, we could
imagine the girl as a prostitute. Based on what little we
know, Illinois’s characterization of Gattem’s conduct as a
misdemeanor undeserving of prison time is reasonable,
rather than being evidence that Illinois does not take sexual
offenses seriously.
No basis has been shown for reclassifying Gattem’s
offense as an aggravated felony. The government’s brief
describes his proposal to the girl as “disgusting and de-
praved” (a dubious characterization if she was one day short
of her eighteenth birthday, as she may have been) and,
18 No. 04-2102
continuing in this vein, speculates without reference either
to evidence relating to Gattem’s conduct or to a psychologi-
cal literature that might bear on it that such a proposal
might “cause the victim to have negative thoughts about
sexuality and produce psychological injury that may be
difficult to overcome.” Carried away by its own rhetoric, the
government describes what Gattem did as “the forcing of
unwanted sexual activity” upon the girl, even though there
was no sexual act; words are not acts.
The immigration judge offered no reason at all for his rul-
ing beyond citation of Rodriguez-Rodriguez. And the Board
added nothing to the immigration judge’s opinion. The
Justice Department’s lawyers are not allowed to supply the
agency’s missing rationale in its brief—nor are we. SEC v.
Chenery Corp., 332 U.S. 194 (1947). That has not stopped
my colleagues from offering their own rationale: not that
the girl is likely to have suffered any adverse consequences
from the solicitation that she turned down, but that she
might have suffered such consequences had she acceded.
Thus sexual abuse of a minor is redefined as attempted
sexual abuse.
The analytical vacuum would not matter if the Rodriguez-
Rodriguez decision had, as the government and the agency
assume, provided a defensible rationale for defining conduct
such as Gattem’s as an aggravated felony of sexual abuse of
a minor. (It would only have to be minimally plausible.) The
Board doesn’t have to repeat in a new case the principles it
has established in previous ones. But Rodriguez-Rodriguez
had not adopted the definition of “sexual abuse of a minor”
in 18 U.S.C. § 3509(a)(8) as the “definitive interpretation or
definition,” which is how the government and my colleagues
treat it, but merely as “a guide.” 22 I. & N. Dec. at 996. The
alien in that case had been sentenced by a Texas court to 10
years in prison for indecently exposing himself to a child, a
felony. The details, such as his age and that of the child, are
not indicated, but obviously it was not a case of unsuccess-
No. 04-2102 19
ful solicitation, and the length of the sentence and the fact
that it was the maximum allowed by the statute signaled to
the Board the presence of aggravating circumstances. Id.
The contrast with the sentence here is stark (24 months on
probation versus five times that amount of time in prison),
and cannot be entirely due to north-south differences in
penological attitudes.
Guerrero-Perez v. INS, supra, on which the government
also relies, involved an act of sexual penetration of a 15-
year-old girl, also a far more serious offense than Gattem’s.
Like Gattem, Guerrero-Perez was convicted only of a mis-
demeanor. But it was a Class A misdemeanor; Gattem’s was
a Class B, punishable by a maximum of six months in
prison, one-twentieth of the maximum prison sentence for
the crime at issue in Rodriguez-Rodriguez.
Guerrero-Perez had a curious sequel that goes unre-
marked by my colleagues. Shortly after it was decided, the
Board of Immigration Appeals ruled In re Crammond, 23 I.
& N. Dec. 9 (en banc), vacated on other grounds, 23 I. & N.
Dec. 179 (2001) (en banc), that for “sexual abuse of a minor”
to count as an “aggravated felony” for purposes of removal,
it must be a felony as defined in 18 U.S.C. § 3559(a)(5); that
is, it must be punishable by more than a year in prison. On
the basis of this ruling, Guerrero-Perez moved this court for
reconsideration. We turned him down on the ground that
the Board was wrong in thinking that sexual abuse of a
minor had to be the equivalent of a federal felony. 256 F.3d
546 (7th Cir. 2001). The Board (which had vacated the
Crammond decision on an unrelated ground) then caved,
stating, in In re Small, 23 I. & N. Dec. 448, 450 (2002) (en
banc):
Since our initial decision in Matter of Crammond, the
legal landscape relating to this question has signifi-
cantly changed. After considering the issue anew in
light of our opinion, the Seventh Circuit declined to
modify its position and denied a petition for rehearing
20 No. 04-2102
with a further opinion. Guerrero-Perez v. INS, 256 F.3d
546 (7th Cir. 2001). In addition, two other circuits, the
Sixth and the Eleventh, employed similar reasoning
in aligning themselves with the Seventh Circuit. United
States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001);
United States v. Marin-Navarette, 244 F.3d 1284 (11th
Cir.), cert. denied, 122 S. Ct. 317 (2001). Most recently,
the Ninth Circuit, citing United States v. Marin-
Navarette, supra, determined that “an offense classified
by state law as a misdemeanor can be an ‘aggravated
felony’ . . . if the offense otherwise conforms to the
federal definition [of that term] found in 8 U.S.C.
§ 1101(a)(43),” thus signaling its possible agreement
with the result reached by its three sister circuits.
United States v. Robles-Rodriguez, 281 F.3d 900, 903
(9th Cir. 2002). Moreover, to our knowledge no federal
court has concluded that section 101(a)(43)(A) of the Act
pertains only to felony offenses.
In light of these developments, we have reconsidered
the issue and conclude that the prevailing appellate
court view should be adopted for the reasons set forth
in the above-cited opinions of the Sixth, Seventh, and
Eleventh Circuits. We consider it appropriate at this
juncture to accede to the weight of appellate court au-
thority in the interest of uniform application of the
immigration laws.
The Board cannot be criticized for acquiescing in these
decisions rather than bucking them with little chance of
success. Yet the result is topsy-turvy. The determination
whether to require that “sexual abuse of a minor” be
counted as an “aggravated felony” for removal purposes
only if the particular offense satisfies the federal (which is
also the traditional) definition of a felony is not a question
of law to be decided by appellate courts; it is a discretionary
judgment for the Board to make. For remember that the
immigration statute is silent on the meaning of “sexual
No. 04-2102 21
abuse of a minor”—that was left for the Board to supply,
Chevron-style, by the application of its knowledge of
immigration law and policy. INS v. Aguirre-Aguirre, 526
U.S. 415, 424-25 (1999); INS v. Cardoza-Fonseca, 480 U.S.
421, 446-49 (1987); Guerrero-Perez v. INS, supra, 242 F.3d
at 730; Uritsky v. Gonzales, 399 F.3d 728, 731-32 (6th Cir.
2005); Mugalli v. Ashcroft, supra, 258 F.3d at 55-56; see Mei
v. Ashcroft, 393 F.3d 737, 739 (7th Cir. 2004); but see Singh
v. Ashcroft, 383 F.3d 144, 150-52 (3d Cir. 2004).
There is a further point unremarked by my colleagues,
the Board, and the Justice Department. The Illinois statute
under which Gattem was convicted makes no distinctions
based on age. Essentially it just forbids solicitation for
prostitution. A separate statute penalizes solicitation of
minors. 720 ILCS 5/11-6. We do not know why Gattem was
not charged under that statute (maybe he was, and the
charge dropped) but one possibility is that the girl was al-
most 18 and, moreover, looked at least 18. In Illinois, it is
a defense to criminal sexual abuse and aggravated sexual
abuse, both crimes that require an actual sex act, 720 ILCS
5/12-15(c), 16(d), that the defendant “reasonably believed
the person to be 17 years of age or over.” 720 ILCS 5/12-
17(b). What we have here is not a sex act but merely a
solicitation, and as far as appears Gattem had no idea he
was soliciting a minor. A reasonable mistake as to the soli-
cited child’s age can even operate as a defense to indecent
solicitation of a child, because the statute requires that the
offender “knowingly solicits a child or one whom he or she
believes to be a child.” 720 ILCS 5/11-6(a). Characterizing
his conduct as “sexual abuse of a minor” is highly question-
able.
We should remand the case to the Board for a reasoned
judgment.
22 No. 04-2102
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-20-05