Gerardo Correa-Diaz v. Jefferson B. Sessions III , 881 F.3d 523 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3198
GERARDO CORREA-DIAZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of a Final Administrative Removal Order
of the Department of Homeland Security.
No. A099-397-292
____________________
ARGUED JANUARY 17, 2018 — DECIDED JANUARY 31, 2018
____________________
Before FLAUM, EASTERBROOK, and BARRETT, Circuit Judges.
FLAUM, Circuit Judge. Petitioner, a citizen of Mexico,
pleaded guilty in 2005 to two counts of Attempted Sexual
Misconduct with a Minor, in violation of Indiana Code § 35-
42-4-9(a) and (b), respectively. On August 17, 2016, the De-
partment of Homeland Security issued a Final Administrative
Removal Order based upon the § 35-42-4-9(a) conviction. Pe-
titioner now seeks review. At issue is whether petitioner’s
2 No. 16-3198
conviction amounts to “sexual abuse of a minor” and there-
fore constitutes an “aggravated felony” under the Immigra-
tion and Nationality Act (“INA”). See 8 U.S.C.
§ 1101(a)(43)(A). For the reasons that follow, we deny the pe-
tition for review.
I. Background
Petitioner Gerardo Correa-Diaz was born in May 1986 and
is a native and citizen of Mexico. He entered the United States
as a minor without inspection, admission, or parole at an un-
known place, and on an unknown date.
On September 7, 2004, when Correa-Diaz was eighteen
years old, he was spotted in a car behind a school by a police
officer on routine patrol. At the time, Correa-Diaz was with
fourteen-year-old P.S. The police officer observed P.S. “lifting
her head from the area of [Correa-Diaz’s] driver’s side seat.”
The officer then saw Correa-Diaz “pulling up and buckling
his pants” and “an open condom wrapper on the driver’s
seat.” Correa-Diaz was arrested on September 9, 2004.
Child Protective Services interviewed P.S. on November 1,
2004. She stated she had known Correa-Diaz for approxi-
mately three years. She called Correa-Diaz on September 7
and made plans to sneak out of her house and meet him. She
indicated they went to the school, where they “started out
talking and progressed to kissing and more.” P.S. stated Cor-
rea-Diaz pulled down his pants, helped her pull down one leg
of her pants, and was sitting on top of her and facing her. She
stated he fondled her breasts and put a condom on his penis.
She said his penis touched her vagina, but did not say
whether penetration occurred. She also stated that on two
prior, separate occasions, he had touched her breasts,
No. 16-3198 3
“grabbed her hand and put it on his penis,” and touched her
vagina outside of her clothing.
Police interviewed Correa-Diaz on November 9, 2004. He
acknowledged that he and P.S. went to a park and listened to
music, but maintained “nothing else happened.” He also
claimed that P.S. told him she was “almost 16.”
On January 7, 2005, Indiana prosecutors filed multiple
charges against Correa-Diaz. In relevant part, they included:
(1) one count of Attempted Sexual Misconduct with a Minor
(for attempted sexual intercourse) 1; and (2) five counts of Sex-
ual Misconduct with a Minor (for completed sexual contact,
such as fondling, between Correa-Diaz and P.S.). 2 3 Petitioner
was sentenced to two years’ imprisonment on the attempted
sexual intercourse charge and six months’ imprisonment on
1 In 2005, Indiana Code § 35-42-4-9(a) provided, in relevant part:
(a) A person at least eighteen (18) years of age who, with
a child at least fourteen (14) years of age but less than six-
teen (16) years of age, performs or submits to sexual in-
tercourse or deviate sexual conduct commits sexual mis-
conduct with a minor, a Class C felony.
2 In 2005, Indiana Code § 35-42-4-9(b) provided, in relevant part:
(b) A person at least eighteen (18) years of age who, with
a child at least fourteen (14) years of age but less than six-
teen (16) years of age, performs or submits to any fon-
dling or touching, of either the child or the older person,
with intent to arouse or to satisfy the sexual desires of ei-
ther the child or the older person, commits sexual miscon-
duct with a minor, a Class D felony.
3 In 2007, the Indiana General Assembly amended Indiana Code § 35-
42-4-9 to include an affirmative defense, colloquially known as the “Ro-
meo and Juliet” exception, for persons not more than four years older than
a purported victim. See 2007 Ind. Legis. Serv. 216-2007, § 45 (West).
4 No. 16-3198
the sexual contact charge, to run concurrently. Over the objec-
tion of the state, the court suspended Correa-Diaz’s sentence.
Correa-Diaz complied with the order to register as a sex of-
fender.
In 2015, Correa-Diaz was arrested by Lafayette, Indiana
police and charged with failure to register as a sex offender,
false informing, and synthetic identity deception. These
charges were dismissed in February 2016, and Correa-Diaz
pleaded guilty to counterfeiting in violation of Indiana Code
§ 35-43-5-2(a)(2)(A). He was sentenced to 730 days’ imprison-
ment (with 550 days suspended and credit for 180 days of
time served), and one year of supervised probation.
In May 2016, immigration authorities interviewed Correa-
Diaz and lodged an immigration detainer with Indiana au-
thorities. On July 19, 2016, the Department of Homeland Se-
curity (“DHS”) served Correa-Diaz with a Notice of Intent to
Issue a Final Administrative Removal Order. The Notice
charged Correa-Diaz as removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an aggra-
vated felony, as defined by 8 U.S.C. § 1101(a)(43)(A). The ag-
gravated felony was based upon Correa-Diaz’s 2005 convic-
tion for Attempted Sexual Misconduct with P.S. 4 On August
3, 2016, DHS found Correa-Diaz removable as charged and
ordered him removed to Mexico.
Correa-Diaz timely filed a petition for review and motion
for a stay of removal on August 17, 2016. We issued a tempo-
4 Correa-Diaz was not charged as removable for his other 2005 convic-
tion for sexual misconduct with P.S. or his 2016 conviction for counterfeit-
ing.
No. 16-3198 5
rary stay of removal on November 10, 2016, pending the Su-
preme Court’s resolution of Esquivel-Quintana v. Sessions, 137
S. Ct. 1562 (2017). On February 3, 2017, while Esquivel-Quin-
tana was pending, Correa-Diaz filed a motion to vacate his
stay of removal, indicating he “had been detained for more
than 250 days and no longer wishe[d] to be detained.” We
granted this motion, and Correa-Diaz was removed to Mex-
ico. The Supreme Court decided Esquivel-Quintana on May 30,
2017.
II. Discussion
We lack jurisdiction “to review an order removing an alien
who commits an ‘aggravated felony.’” Gaiskov v. Holder, 567
F.3d 832, 835 (7th Cir. 2009). However, we do have jurisdiction
“to consider the limited question of whether we have jurisdic-
tion—that is, whether [Correa-Diaz] has been convicted of an
aggravated felony under § 1101(a)(43)(A).” Id. (quoting Espi-
noza-Franco v. Ashcroft, 394 F.3d 461, 464 (7th Cir. 2004)). We
review de novo “the determination that [Correa-Diaz] is re-
movable because he is an aggravated felon.” Id.The INA defines “aggravated felony” as “murder, rape, or
sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Congress
did not further delineate which actions fall under the um-
brella of “sexual abuse of a minor.” However, the Attorney
General, acting through the Board of Immigration Appeals
(“Board” or “BIA”), has defined the term in a manner con-
sistent with 18 U.S.C. § 3509(a)(8), a statute that concerns the
rights of child victims and child witnesses in federal proceed-
ings. In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 993–96
(B.I.A. 1999); see also Gaiskov, 567 F.3d at 835. That section de-
fines “sexual abuse” to include “the employment, use, per-
6 No. 16-3198
suasion, inducement, enticement, or coercion of a child to en-
gage 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.” 18
U.S.C. § 3509(a)(8).
A. Chevron Deference
In reviewing the BIA’s interpretation of the INA, we ac-
cord deference to the agency if the matter involves an ambig-
uous section of the statute. Velasco-Giron v. Holder, 773 F.3d
774, 776 (7th Cir. 2014) (“When resolving ambiguities in the
Immigration and Nationality Act … the Board has the benefit
of [Chevron deference], under which the judiciary must re-
spect an agency’s reasonable resolution.” (citing Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984))).
Indeed, we have held on multiple occasions that the
Board’s interpretation of “sexual abuse of a minor” under
§ 1101(a)(43)(A) is ambiguous and entitled to deference. See
Velasco-Giron, 773 F.3d at 776 (“We have considered the
Board’s approach to ‘sexual abuse of a minor’ five times, and
each time we have held that Rodriguez-Rodriguez takes a rea-
sonable approach to the issue.”) (collecting cases); Gaiskov,
567 F.3d at 835 (“This court has concluded that the BIA's use
of the broad definition found in 18 U.S.C. § 3509 as an inter-
pretive touchstone is reasonable.”); Gattem v. Gonzales, 412
F.3d 758, 763–65 (7th Cir. 2005).
Correa-Diaz argues that Chevron deference is not appro-
priate for two reasons. First, he cites the Supreme Court’s de-
cision in Christensen v. Harris County for the proposition that
agency interpretations “such as those in opinion letters—like
No. 16-3198 7
interpretations contained in policy statements, agency manu-
als, and enforcement guidelines, all of which lack the force of
law—do not warrant Chevron-style deference.” Christensen v.
Harris Cty., 529 U.S. 576, 587 (2000). However, we evaluated
the same argument in Velasco-Giron, where we noted that
“Christensen is a precursor of United States v. Mead Corp., 533
U.S. 218 (2001), which concluded that only regulations and
administrative adjudications come within Chevron.” 773 F.3d
at 777. We held that, under this rubric, “Rodriguez-Rodriguez is
an administrative adjudication with precedential effect; it is
part of Chevron’s domain.” Id. Thus, Correa-Diaz’s first argu-
ment fails.
Correa-Diaz next argues that Esquivel-Quintana called the
ambiguity of “sexual abuse of a minor” into question. We dis-
agree. In Esquivel-Quintana, the Supreme Court considered
whether a conviction under California Penal Code § 261.5(c)
qualified as sexual abuse of a minor under 8 U.S.C.
§ 1101(a)(43)(A). 137 S. Ct. at 1567. The statute in question
criminalized consensual sexual intercourse with a person un-
der the age of eighteen if the victim was “more than three
years younger than the perpetrator.” Id. (quoting Cal. Penal
Code § 261.5(c)). Both an immigration judge and the BIA con-
cluded that a conviction under the statute qualified as sexual
abuse of a minor pursuant to 8 U.S.C. § 1101(a)(43)(A). Id.On appeal, the Supreme Court reversed. The Court ruled
that Chevron deference did not apply because § 1101(a)(43)(A),
“read in context, unambiguously foreclose[d] the Board’s in-
terpretation.” Id. at 1572. Specifically, the Court noted that the
California statute “focused solely on the age of the partici-
pants.” Id. In other words, the statute fell into the category of
statutory rape laws which “generally provide that an older
8 No. 16-3198
person may not engage in sexual intercourse with a younger
person under a specified age, known as the ‘age of consent.’”
Id. at 1569. Using “normal tools of statutory interpretation”—
including evaluating the dictionary definitions of “sexual
abuse,” the structure of the statute, and its surrounding pro-
visions—the Court held that for purposes of § 1101(a)(43)(A),
“for a statutory rape offense to qualify as sexual abuse of a
minor under the INA based solely on the age of the partici-
pants, the victim must be younger than 16.” Id. at 1569–70.
Notably, however, the Court declined to rule more broadly
on the generic federal definition. The Court left “for another
day whether the generic offense requires a particular age dif-
ferential between the victim and the perpetrator, and whether
the generic offense encompasses sexual intercourse involving
victims over the age of 16 that is abusive because of the nature
of the relationship between the participants.” Id. at 1572.
Correa-Diaz argues that Esquivel-Quintana “directly over-
rules this Court’s precedent in Velasco-Giron” and calls into
question the entire Chevron analysis in the cases leading up to
it. Not so. Chevron’s “first step” requires Congress to speak on
the “precise question at issue.” Coyomani-Cielo v. Holder, 758
F.3d 908, 912 (7th Cir. 2014); see also Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2124–25 (2016) (“At the first step, a
court must determine whether Congress has ‘directly spoken
to the precise question at issue.’”(emphasis added) (quoting
Chevron, 467 U.S. at 842)). Esquivel-Quintana holds that we are
not to give deference as to one precise question: the definition
of “minor” under § 1101(a)(43)(A) in the context of statutory
rape offenses focused solely on the age of the participants.
The “precise issue” here is different. Correa-Diaz argues
that attempted sexual intercourse between an almost sixteen
No. 16-3198 9
year-old and an eighteen year-old—as the Indiana Code pre-
viously outlawed—does not constitute “sexual abuse.” In-
deed, Esquivel-Quintana explicitly reserved this question for
another day. 137 S. Ct. at 1572 (“We leave for another day
whether the generic offense requires a particular age differen-
tial between the victim and the perpetrator . … ”). Thus, we
do not believe Esquivel-Quintana’s limited holding overruled
all of this Court’s previous decisions deferring to BIA’s inter-
pretation of “sexual abuse of a minor.”
B. Department of Homeland Security Determination
In this case, DHS determined that, because Correa-Diaz's
offense for Attempted Sexual Misconduct with a Minor con-
stituted sexual abuse of a minor under § 1101(a)(43)(A), he
was removable as an aggravated felon. To review that deter-
mination, we employ a “categorical approach.” Gaiskov, 567
F.3d at 835. This means we do not look at Correa-Diaz’s indi-
vidual conduct or the underlying facts. See Mathis v. United
States, 136 S. Ct. 2243, 2251 (2016) (”How a given defendant
actually perpetrated the crime … makes no difference … .”
(citation omitted)). Rather, “we compare the crime of convic-
tion with the more generic term used in 8 U.S.C. § 1101(a)(43)
and then determine whether the conduct required for a con-
viction would categorically constitute ‘sexual abuse of a mi-
nor.’” Gaiskov, 567 F.3d at 835–36.
The categorical approach requires us to “focus on the min-
imum conduct criminalized by the state statute.” Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013). Here, the Indiana statute un-
der which Correa-Diaz was convicted prohibited a “person at
least eighteen (18) years of age” from “perform[ing] or sub-
mit[ing] to sexual intercourse or deviate sexual conduct” with
10 No. 16-3198
“a child at least fourteen (14) years of age but less than sixteen
(16) years of age.” Ind. Code § 35-42-4-9(a) (2005). 5
Because § 35-42-4-9(a) constitutes a statutory rape of-
fense—focused solely on the age of the participants—
§ 1101(a)(43)(A) (as interpreted by Esquivel-Quintana) requires
the age of the victim to be less than sixteen. That condition is
clearly satisfied here, since the statute explicitly required the
victim to be less than sixteen.
That leaves whether “perform[ing] or submit[ing] to sex-
ual intercourse or deviate sexual conduct” constitutes “sexual
abuse.” Because Esquivel-Quintana does not address that is-
sue, and our past precedent recognizes “sexual abuse” as am-
biguous, we defer to the Board’s interpretation. That defini-
tion requires “[t]he employment, use, persuasion, induce-
ment, 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 exploi-
tation of children, or incest with children.” Rodriguez-Rodri-
guez, 22 I. & N. Dec. at 991 (quoting 18 U.S.C. § 3509(a)(8)).
We hold that conduct prohibited by § 35-42-4-9(a) falls un-
der this umbrella. When determining whether an offense con-
stitutes sexual abuse, “this court has taken a broad view of
that classification in the immigration context.” Gaiskov, 567
F.3d at 836. Indeed, in Gaiskov, we found that § 35-42-4-9(b)
constituted an aggravated felony under § 1101(a)(43)(A). That
provision only criminalizes “fondling or touching … with the
5 Correa-Diaz’s conviction for attempted sexual misconduct does not
bar a finding that the conviction constitutes an aggravated felony. “[T]he
INA explicitly provides that inchoate offenses, such as attempt or conspir-
acy to commit the offenses identified as aggravated felonies, are them-
selves aggravated felonies under the statute.” Gaiskov, 567 F.3d at 837.
No. 16-3198 11
intent to arouse.” Id. Given that section (a) criminalizes the
more aggravated behavior of sexual intercourse, it warrants
similar treatment.
Moreover, sexual intercourse between a child under six-
teen years of age and an eighteen-year-old adult involves the
same “inherent risk of exploitation, if not coercion” that we
cited in Gattem. 412 F.3d at 765. As we stated in that case,
“[m]inors as a group have a less well-developed sense of judg-
ment than adults, and thus are at greater peril of making
choices that are not in their own best interests.” Id. As a result,
sexual intercourse “implicates risks which attend sexual con-
duct generally (e.g., pregnancy, sexual assault, and the con-
traction of sexually transmitted diseases), risks which a four-
teen or fifteen-year-old minor is likely ill-equipped to appre-
ciate or minimize.” Gaiskov, 567 F.3d at 836. Thus, “[a]n adult's
exploitation of a minor’s naivete or lack of judgment” in this
area “can reasonably be understood as abusive.” Id.Correa-Diaz argues the risk of exploitation diminishes “as
the age of the minor and that of the perpetrator become closer
and closer.” That may be true at some level, but not under the
Indiana statute, where the ages of the victim and perpetrator
must be separated by at least two years 6—a significant span
in the context of adolescent development. Thus, Correa-Diaz’s
conviction for Attempted Sexual Misconduct with a Minor
falls well within the bounds of “sexual abuse of a minor” un-
der § 1101(a)(43)(A).
6 And it is not true in this case, where the victim and the perpetrator
were separated by four years.
12 No. 16-3198
III. Conclusion
For the foregoing reasons, we DENY the petition for re-
view.