Mikhail Gaiskov v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2700
M IKHAIL G AISKOV Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of a Final Order of the
Board of Immigration Appeals.
No. A55 662 213
A RGUED A PRIL 2, 2009—D ECIDED M AY 28, 2009
Before B AUER, and F LAUM, Circuit Judges, and K APALA ,
District Judge.Œ
F LAUM, Circuit Judge. Mikhail Gaiskov, a citizen of
Russia and permanent resident of the United States, seeks
review of a decision of the Board of Immigration Appeals
(the “Board” or “BIA”) that determined that when
Œ
Of the Northern District of Illinois, sitting by designation.
2 No. 08-2700
Gaiskov violated Ind. Code § 35-42-4-9(b), he engaged in
“sexual abuse of a minor” and therefore committed an
aggravated felony under the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43)(A) (the “INA”). That finding
makes Gaiskov removable from the United States. See
8 U.S.C. § 1227(a)(2)(a)(iii). As explained below, the Board
did not err in its conclusion that Gaiskov committed an
aggravated felony. Accordingly, we deny Gaiskov’s
petition for review.
I. Background
Petitioner Mikhail Gaiskov is a 22-year-old citizen of
Russia and lawful permanent resident of the United
States. On August 20, 2007 Gaiskov pleaded guilty to
sexual misconduct with a minor in violation of Ind. Code
§ 35-42-4-9(b).1 The Indiana statute provided:
A person at least eighteen (18) years of age who with a
child at least fourteen (14) years of age but less than
1
The Information in the criminal case indicates that Gaiskov,
who was twenty years old at the time of the crime, had
sexual intercourse with a fourteen year old girl. There is no
indication in the record of why Gaiskov was convicted under
Ind. Code § 35-42-4-9(b), which criminalizes touching a minor
with sexual intent, rather than Ind. Code § 35-42-4-9(a), which
prohibits sexual intercourse with a minor. However, as ex-
plained below, in reviewing the Board’s decision that
Gaiskov’s crime was an aggravated felony under the INA,
we look only to the statute of conviction and not to the defen-
dant’s underlying conduct. See Taylor v. United States, 495
U.S. 575, 599-602 (1990).
No. 08-2700 3
sixteen (16) years of age, performs or submits to any
fondling or touching, of either the child or the older
person, with the intent to arouse or satisfy the
sexual desires of either the child or the older person,
commits sexual misconduct with a minor, a Class D
felony.
Ind. Code § 35-42-4-9(b). Based on this conviction, the
government issued a Notice to Appear alleging that
Gaiskov was deportable as an alien convicted of an
“aggravated felony,” namely “sexual abuse of a minor.” See
8 U.S.C. § 1101(a)(43)(A) (defining the term “aggravated
felony” as “murder, rape, or sexual abuse of a minor”). In
the course of the removal proceedings, Gaiskov admitted
the fact of the conviction but contended that a conviction
under the Indiana statute did not constitute sexual abuse
of a minor as a matter of law. Specifically, Gaiskov argued
that Ind. Code § 35-42-4-9(b) covered sexual misconduct
that is broader than how the Board of Immigration appeals
and this court have interpreted the term “sexual abuse of
a minor.”
On March 13, 2008 the immigration judge (“IJ”) issued a
written decision concluding that Gaiskov had been con-
victed of an offense involving “sexual abuse of a minor.”
At the outset, the IJ determined that the Board interpreted
“sexual abuse of a minor” broadly, citing Matter of
Rodriguez-Rodriguez, 22 I.&N. Dec. 991, 993-94 (B.I.A. 1999).
Looking at the crime of conviction, the judge con-
cluded that Gaiskov’s conviction met the Board’s defini-
tion of “sexual abuse of a minor” because its terms re-
quired that the touching be accompanied by the specific
4 No. 08-2700
intent to arouse or satisfy sexual desires. The immigra-
tion judge reasoned that this requirement precluded a
person being convicted for “simple touching.” As the
immigration judge stated in his opinion, “the sexually
exploitive nature of the touching makes the contact with
the minor a criminal offense” that fit the definition of
“sexual abuse of a minor.”
Gaiskov appealed to the Board. On June 16, 2008 the
Board issued a decision adopting and affirming the
immigration judge’s decision. In its brief supplementary
analysis, the Board stated its belief that the law of the
Seventh Circuit further foreclosed Gaiskov’s contention
that his crime of conviction did not constitute “sexual
abuse of a minor.” The instant petition followed.
II. Discussion
Congress has stripped this court of jurisdiction to
review an order removing an alien who commits an
“aggravated felony,” see 8 U.S.C. §§ 1252(a)(2)(C),
1227(a)(2)(A)(iii). Nevertheless, “we retain jurisdiction
to consider the limited question of whether we have
jurisdiction—that is, whether [Gaiskov] has been convicted
of an aggravated felony under § 1101(a)(43)(A).” Espinoza-
Franco v. Ashcroft, 394 F.3d 461, 464 (7th Cir. 2004) (citations
omitted).
Because the Board’s decision adopted and affirmed the
IJ’s conclusion as well as providing its own analysis, we
review both decisions. See Giday v. Gonzales, 434 F.3d 543,
547 (7th Cir. 2006). We review the determination that
No. 08-2700 5
Gaiskov is removable because he is an aggravated felon
de novo. Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir.
2001). However, in reviewing the Board’s interpretation
of the INA, “we defer to the BIA’s interpretation of the
statute it administers.” Id.; see also Draganova v. INS, 82
F.3d 716, 720 (7th Cir. 1996) (citing Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984)). We must defer to the BIA’s construction “so long
as it is ‘consistent with the language and purposes of the
statute.’” Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir.
2005) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 426
(1999)).
The INA defines the term “aggravated felony” as
“murder, rape, or sexual abuse of a minor.” 8 U.S.C.
§ 1101(a)(43)(A). However, Congress has not further
defined what crimes constitute “sexual abuse of a minor.”
The Attorney General, who is charged with the admin-
istration and enforcement of the INA, has delegated that
task to the Board. See Gattem, 412 F.3d at 763. In Matter of
Rodriguez-Rodriguez, the Board defined the term in a
broad manner consistent with the definition contained in
18 U.S.C. § 3509(a), a statute concerning the rights of child
victims and child witnesses in the context of federal
proceedings. 22 I.&N. Dec. at 993-94. That statute defines
“sexual abuse” as
[T]he employment, use, persuasion, inducement, en-
ticement, 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[.]
6 No. 08-2700
18 U.S.C. § 3509. The Board believed that this broad
definition was best able to reflect the full range of
criminal conduct that can be understood to constitute
sexual abuse of a minor. See Rodriguez-Rodriguez, 22 I.&N.
Dec. at 996. But the Board also emphasized that it was
using 18 U.S.C. § 3509 only as a guide and did not
intend for it to be a “definitive standard” that fixed the
outer boundaries of the term’s meaning. See Rodriguez-
Rodriguez, 22 I.&N. Dec. at 996. This court has concluded
that the BIA’s use of the broad definition found in
18 U.S.C. § 3509 as an interpretive touchstone is rea-
sonable. See Lara-Ruiz v. INS, 241 F.3d 934, 941-42 (7th
Cir. 2001); Gattem, 412 F.3d at 763-75 (approving of
the Board’s use of 18 U.S.C. § 3509 as an interpretive
guide).
In this case, the immigration judge and Board deter-
mined that Gaiskov’s offense was within the range of
conduct that 18 U.S.C. § 3509 defines as sexual abuse
and that Gaiskov was thus removable as an aggravated
felon. To review that determination, we employ a “cate-
gorical approach.” See Gattem, 412 F.3d at 765. That is,
we compare the crime of conviction with the more
generic term used in 8 U.S.C. § 1101(a)(43) and then
determine whether the conduct required for a conviction
would categorically constitute “sexual abuse of a minor.” 2
2
In cases where a statute prohibits a broad range of conduct,
some of which falls within the definition of “aggravated felony”
and some which does not, courts have employed a “modified
(continued...)
No. 08-2700 7
See Taylor v. United States, 495 U.S. 575, 599-602 (1990).
To obtain a conviction under Ind. Code § 35-42-4-9(b),
the government must prove (1) that the defendant was
at least eighteen years old at the time of the offense,
(2) that the defendant fondled or touched (or submitted
to fondling or touching by) a fourteen or fifteen-year-
old minor, and (3) that the defendant did so with the
intent to arouse or satisfy his sexual desire or the
sexual desire of the child. In analyzing the Board’s
finding that this offense constitutes sexual abuse of a
minor, we note that this court has taken a broad view of
that classification in the immigration context. In Gattem
v. Gonzales, we held that the Board correctly determined
that the petitioner’s conviction for sexual solicitation
qualified as a conviction for sexual abuse of a minor.
412 F.3d at 767. The statute in Gattem, 720 ILCS 5/11-14.1(a),
did not require that the defendant physically touch the
victim, let alone that the defendant touch the victim in a
sexual manner. Nonetheless, we found that an adult’s
solicitation of a minor was abusive because it exploited the
minor’s vulnerability to “corrupt influences” and took
2
(...continued)
categorical approach.” See Fernandez v. Mukasey, 544 F.3d 862,
871 (7th Cir. 2008). Under the modified categorical approach,
it is permissible for the court to examine the charging docu-
ments to ascertain whether the alien was convicted of
conduct that falls within the federal deportation standard. Id.Here, we need not go beyond the statute because, as explained
below, all of the prohibited conduct can reasonably be under-
stood as “sexual abuse of a minor” under the INA.
8 No. 08-2700
advantage of the minor’s “less well-developed sense of
judgment.” Gattem, 412 F.3d at 766 (there exists “an
inherent risk of exploitation, if not coercion, when an
adult solicits a minor to engage in sexual activity”); see
also Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766
(7th Cir. 2005) (citing Gattem and holding that indecent
solicitation of a child qualifies as an aggravated felony).
Like the crime in Gattem, the crime here exploits a mi-
nor’s vulnerability and “less well-developed sense of
judgment.” Gattem, 412 F.3d at 766. An adult who
touches a child with a sexual intent is, like the solicitor
in Gattem, exploiting a person who “may well be
incapable of fully appreciating the consequences of yield-
ing” to the defendant’s advances. Id. But the statute
here contemplates even more serious sexual abuse be-
cause it requires that the adult touch the child with the
intent to arouse or satisfy sexual desire. We first note
that the youth of the victims of this crime could prevent
the victims from giving effective consent to sexual touch-
ing, and sexual touching without consent is abusive.
Moreover, the touching of a child with a sexual intent
(as opposed to the use of words, as in Gattem) implicates
risks which attend sexual conduct generally (e.g., preg-
nancy, sexual assault, and the contraction of sexually
transmitted diseases), risks which a fourteen or fifteen-
year-old minor is likely ill-equipped to appreciate or
minimize. An adult’s exploitation of a minor’s naivete
or lack of judgment can reasonably be understood as
abusive. Thus, we can find no fault with the Board’s
conclusion that a conviction under Ind. Code § 35-42-4-9(b)
is an aggravated felony.
No. 08-2700 9
Gaiskov contends that a conviction under the Indiana
statute cannot be considered sexual abuse of a minor
because the prohibited conduct includes touching that is
too minor to constitute sexual abuse. Specifically, he
argues that the Indiana statute does not fit within the
definition for “sexual abuse of a minor” because it
does not require the touching of specific sexual body
parts. We find this argument unconvincing. First, as our
decision in Gattem illustrates, touching, let alone the
touching of sexual body parts, is not required for a crime
to be classified as “sexual abuse of a minor.” See Gattem,
412 F.3d at 760-61; see also Bahar v. Ashcroft, 264 F.3d 1309,
1310-13 (11th Cir. 2001) (holding that “taking indecent
liberties” with a child under 16 for sexual gratification
constitutes sexual abuse of a minor, even without
physical contact). Second, Ind. Code § 35-42-4-9(b)
does not prohibit innocent physical contact such as a
hand shake or a hug. Rather, it requires the government
to prove that the adult touched or fondled the child
with “the intent to arouse or satisfy the sexual desires of
either the child or the older person.” Because the statute
requires specific intent, purely innocuous touching is not
criminalized. See, e.g., Jewell v. State, 877 N.E.2d 864, 870
(Ind. Ct. App. 2007) (noting touching and intent require-
ments); Kirk v. State, 797 N.E.2d 837, 841 (Ind. Ct. App.
2003) (discussing the intent requirement and finding it
satisfied where the evidence showed that the defendant
intentionally touched the minor victim’s genitals).
Gaiskov also argues, in general, that a minor victim is
not sufficiently harmed by the sexual misconduct pro-
hibited by Ind. Code § 35-42-4-9(b) for it to constitute
10 No. 08-2700
sexual abuse. First, we reject Gaiskov’s suggestion that a
minor is not seriously harmed by the conduct prohibited
in Ind. Code § 35-42-4-9(b). However, even if there was
little harm to the minor associated with the crime, this
would not foreclose its classification as an aggravated
felony. In Gattem, the dissent criticized the majority for
failing to consider the level of harm associated with the
alien’s failed attempt to solicit sex from the victim. See
Gattem, 412 F.3d at 768-69 (Posner, J., dissenting) (noting
that majority had not pointed to any adverse con-
sequences resulting from the failed solicitation). We
nonetheless held that the inherent risk of exploitation
that accompanied the crime justified its classification as
“sexual abuse of a minor.” In this regard, the Gattem
majority noted that the INA explicitly provides that
inchoate offenses, such as attempt or conspiracy to
commit the offenses identified as aggravated felonies,
are themselves aggravated felonies under the statute,
further supporting that a putative lack of harm to the
minor is not dispositive. See Gattem, 412 F.3d at 766-67
(citing 8 U.S.C. § 1101(a)(43)(U)). We confirmed the re-
jection of a purely harm-based standard in Sharashidze v.
Gonzales, 480 F.3d 566 (7th Cir. 2007). In that case, we
determined that an alien’s conviction for offering the
mother of a minor $20 to have sex with her son con-
stituted sexual abuse under the INA. Id. at 569. We con-
cluded that the presence of the mother as an
intermediary and the fact that there was no indication
that the minor was even aware of the solicitation did not
meaningfully distinguish the case from Gattem or indicate
that the alien’s crime could not qualify as “sexual abuse
No. 08-2700 11
of a minor.” Id. at 568 n.4. Gattem and Sharashidze
illustrate that even crimes that arguably do little lasting
harm to minors can reasonably be categorized as aggra-
vated felonies under the INA. Thus, we cannot credit
Gaiskov’s contention that the crime under review here,
which exposes the minor to significant risk, is foreclosed
from this classification because its impact is too slight.
Finally, it bears mentioning that our approval of the
Board’s finding is not undermined by this court’s recent
decision in United States v. Osborne, 551 F.3d 718 (7th Cir.
2009). While Osborne might at first blush appear to be in
tension with our conclusion in this case, Osborne’s context
distinguishes its result. The question in Osborne was
whether the defendant’s prior conviction under Ind. Code
§ 35-42-4-9(b) qualified as “sexual abuse” or “abusive
sexual conduct involving a minor or ward” under
18 U.S.C. § 2252(b)(1) for sentencing purposes. Osborne,
551 F.3d at 719. If the prior conviction qualified, the defen-
dant’s sentence for his subsequent crime, possession
and distribution of child pornography, would be signifi-
cantly increased. Id. The district court found that the
defendant’s conviction was properly categorized as
abusive but we vacated that ruling. Id. at 722. The
Osborne court noted that Congress had not defined the
relevant terms in § 2252, and decided that it was “best
to say that, as a matter of federal law, sexual behavior
is ‘abusive’ only if it is similar to one of the crimes denomi-
nated as a form of ‘abuse’ elsewhere in Title 18.” Id. at 721.
The Osborne court remanded for the district court to
determine if the charging documents indicated that
defendant had been convicted under Ind. Code § 35-42-4-
12 No. 08-2700
9(b) for conduct that was similar to one of the crimes
denominated as abusive elsewhere in Title 18.3 Id. at 722.
Here, we have a similarly undefined term in 8 U.S.C.
§ 1101(a)(43)(A), i.e., “sexual abuse of a minor.” But,
unlike Osborne, here we have a federal agency, the
BIA, which has defined that term quite broadly. See
Rodriguez-Rodriguez, 22 I.&N. Dec. at 993-94. The Osborne
court did not owe deference to the district court’s rea-
soning regarding the abusiveness of the crime, but we
are bound to “defer to the BIA’s interpretation of the
statute it administers,” see Draganova, 82 F.3d at 720, and
have previously found the BIA’s broad interpretation
of the term “sexual abuse of a minor” to be reasonable. See
Lara-Ruiz, 241 F.3d at 941-42. Moreover, this court has
twice rejected the argument that an Osborne-type test
must govern the determination of what is an aggravated
felony under the INA. See id. (rejecting petitioner’s argu-
ment that the Board must define the term “sexual abuse
of a minor” with reference to the more narrow standards
found elsewhere in the criminal code); Espinoza-Franco,
394 F.3d at 464-65 (stating that Congress intended the
phrase “sexual abuse of a minor” to be interpreted
broadly and echoing Lara-Ruiz’s holding that the phrase
need not be limited to the narrower definitions of other
provisions of the criminal code). Thus, Osborne is not an
3
The court looked past the statute of conviction to the
charging papers because it determined that the crime could be
committed in ways that were similar and dissimilar to the
other federal crimes that were denominated as abusive.
No. 08-2700 13
obstacle to our conclusion that the Board correctly catego-
rized Gaiskov’s conviction for sexual misconduct as
sexual abuse of a minor for purposes of 8 U.S.C.
§ 1101(a)(43)(A) of the INA.4
Because Gaiskov is removable by reason of having
committed an aggravated felony, we have no jurisdic-
tion to further review the BIA’s order of removal. See
8 U.S.C. § 1252(a)(2)(C); Gattem, 412 F.3d at 767.
III. Conclusion
For the reasons explained above, we DENY the petition
for review.
4
We note that even if Osborne provided the appropriate
standard in this case, Gaiskov’s crime would constitute “sexual
abuse” under that test as well. Under Osborne’s test, sexual
intercourse between a twenty-year-old man and fourteen-year-
old girl (Gaiskov’s underlying conduct, as shown by the
Information in the case) is “abusive” because it is similar to the
conduct prohibited in 18 U.S.C. § 2243, which prohibits inter-
course with a person between the ages of twelve and fifteen
who is at least four years younger than the defendant. See
Osborne, 551 F.3d at 720-21.
5-28-09