Rosas-Ortega, Regina v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 2, 2005
Decided December 22, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3420
REGINALDO ROSAS-ORTEGA, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A91-339-205
ALBERTO R. GONZALES,*
Respondent.
ORDER
An immigration judge (“IJ”) ordered Reginaldo Rosas-Ortega removed from
the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) for committing an aggravated
felony (aggravated criminal sexual abuse). The IJ further denied Rosas-Ortega’s
application for discretionary relief from removal under former section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(c). The Board of Immigration
Appeals (“BIA”) summarily affirmed. We deny Rosas-Ortega’s petition for review.
*
Pursuant to Fed. R. App. P. 43(c), Alberto R. Gonzales is substituted for his
predecessor, John D. Ashcroft, as United States Attorney General.
No. 04-3420 Page 2
I. BACKGROUND
Rosas-Ortega entered the United States illegally in 1976, and adjusted his
status to lawful permanent resident in 1990. In September 1993, he pleaded guilty
to aggravated criminal sexual abuse in violation of 720 Ill. Comp. Stat. 5/12-16(b)
after sexually molesting his 11-year-old stepdaughter in March 1993. This law
criminalizes “sexual conduct with a victim who was under 18 years of age when the
act was committed and the accused was a family member.” 720 Ill. Comp. Stat.
5/12-16(b). Rosas-Ortega was sentenced to 30 months’ “periodic imprisonment,”1
four years’ probation, and attendance at a sex offender treatment program. In
1995, an Illinois judge revoked Rosas-Ortega’s probation after he failed to
participate in the sex offender treatment program and re-sentenced him to an
additional 30 months’ probation, during which he completed a second treatment
program called Adelante.
In January 2000, the INS determined that Rosas-Ortega was removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) because of his conviction, and ordered him to
appear before an IJ in Chicago to show cause why he should not be removed. In
February 2001, the IJ found Rosas-Ortega removable and ineligible for
discretionary waiver of conviction under former section 212(c) because of that
provision’s repeal in 1996. Rosas-Ortega appealed to the BIA. While the appeal
was pending, the U.S. Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001),
holding that aliens, such as Rosas-Ortega, were not retroactively barred from
seeking section 212(c) relief if they pleaded guilty to crimes before section 212(c)’s
repeal. The BIA accordingly remanded the case to allow Rosas-Ortega to apply for
section 212(c) relief.
At the hearing on the merits of Rosas-Ortega’s section 212(c) application, he
presented testimony from his wife, daughter, and son. Rosas-Ortega also testified,
and confirmed that he was convicted in 1993 for aggravated criminal sexual abuse.
He went on to point out that he completed the Adelante sexual offender treatment
program and that the program helped him greatly. Rosas-Ortega also admitted
1
Under Illinois law, “periodic imprisonment” is a sentencing alternative to a
“traditional” term of imprisonment. See 730 Ill. Comp. Stat. 5/5-5-3(b)(2). In
adopting this alternative, the trial court ordered Rosas-Ortega to be confined in the
Whiteside County Jail in Illinois for a total of 52 “weekends” during the 30-month
sentence it imposed. Each “weekend” consisted of 48-hour periods of custody, which
were not limited to calendar weekends and were scheduled by the Whiteside County
Sheriff. The trial court also ordered Rosas-Ortega to abide by certain probation
conditions when he was not confined. The trial court imposed “periodic
imprisonment” so Rosas-Ortega could remain employed during his incarceration.
No. 04-3420 Page 3
that he had a problem and showed remorse for his actions. He acknowledged that
an Illinois judge revoked his probation in 1995 after he failed to participate in the
sexual offender treatment program that he was originally ordered to attend, that he
was convicted for operating a motor vehicle under the influence of alcohol in 1988,
and that he was arrested for the same offense earlier in 2003 and had charges
pending against him at that time.
On August 12, 2003, the IJ denied Rosas-Ortega’s application for section
212(c) relief. The IJ stated that granting section 212(c) relief is an exercise of
discretion that is guided by Matter of Marin, 16 I & N Dec. 581, 584 (B.I.A. 1978)
(“The immigration judge must balance the adverse factors evidencing an alien’s
undesirability as a permanent resident with the social and humane considerations
presented in his behalf to determine whether the granting of section 212(c) relief
appears in the best interests of this country.”). He reasoned that, because Rosas-
Ortega’s conviction for aggravated criminal sexual abuse was “a single, serious
crime,” the Matter of Marin examination had to reveal an “unusual or outstanding
equity” that favored granting relief.
The IJ then reviewed the evidence supporting Rosas-Ortega’s application for
relief—namely, the presence of family in the United States, his employment history,
and his purported rehabilitation after undergoing sex offender treatment at
Adelante. The IJ concluded: while Rosas-Ortega had family in the United States,
he also had “numerous ties to Mexico”; that Rosas-Ortega’s employment history in
the United States “does not compel the conclusion that this constitutes an unusual
or outstanding equity”; and that Rosas-Ortega completed the Adelante sex offender
program only after he violated the conditions of his original probation and was re-
sentenced to an additional two-and-one-half years’ probation. The IJ, in exercising
his discretion, accordingly denied Rosas-Ortega’s application for section 212(c)
relief.
II. ISSUES
Rosas-Ortega petitions this court for review, arguing that the IJ: (1) failed to
establish that Rosas-Ortega was guilty of an aggravated felony; (2) failed to
examine factors that mitigate Rosas-Ortega’s crime; and (3) violated his right to due
process by excluding certain documents that he presented at the removal hearing.
III. DISCUSSION
We initially address whether we have jurisdiction to consider Rosas-Ortega’s
petition for review. Under 8 U.S.C. § 1252(a)(2)(C), we are prohibited from
reviewing orders to remove if the alien was convicted of an “aggravated felony.” 8
U.S.C. § 1227(a)(2)(A)(iii); see also Calcano-Martinez v. INS, 533 U.S. 348, 351
No. 04-3420 Page 4
(2001); Flores v. Ashcroft, 350 F.3d 666, 669 (7th Cir. 2003). The statutes define the
term “aggravated felony” to include the “murder, rape, or sexual abuse of a minor,”
8 U.S.C. § 1101(a)(43)(A), which, as pertinent to this case, encompasses convictions
under Illinois’s aggravated criminal sexual abuse statute, see Espinoza-Franco v.
Ashcroft, 394 F.3d 461, 465 (7th Cir. 2005). We do have jurisdiction, however, to
determine whether Rosas-Ortega committed the underlying offense that would
otherwise eliminate jurisdiction. See Gill v. Ashcroft, 335 F.3d 574, 575 (7th Cir.
2003); Yang v. INS, 109 F.3d 1185, 1193 (7th Cir. 1997). In other words, if we
determine that the record reflects that Rosas-Ortega committed aggravated
criminal sexual abuse, we then lack jurisdiction to hear his case. See 8 U.S.C.
§ 1252(a)(2)(C); Calcano-Martinez, 533 U.S. at 351; Flores, 350 F.3d at 669.
Rosas-Ortega pleaded guilty to aggravated criminal sexual abuse, and when
a defendant enters a guilty plea he admits the facts set out in the complaint. See
United States v. Lockwood, 416 F.3d 604, 607-08 (7th Cir. 2005); United States v.
Barnett, 415 F.3d 690, 692-93 (7th Cir. 2005). Yet, he makes the bizarre argument
that the record does not establish that he committed aggravated criminal sexual
abuse because the IJ did not find that the abuse victim was, in fact, under 18 years
old when Rosas-Ortega sexually abused her. This argument is meritless. An
element of this crime is that the victim is under 18 years old, 720 Ill. Comp. Stat.
5/12-16(b), and Rosas-Ortega admitted to the IJ and to us that he was guilty of the
crime. The record therefore establishes that Rosas-Ortega’s victim was under 18
years old. Because his crime constitutes an aggravated felony as defined in 8
U.S.C. § 1101(a)(43)(A), we lack jurisdiction to hear Rosas-Ortega’s remaining
claims. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez, 533 U.S. at 351; Flores, 350
F.3d at 669.
IV. CONCLUSION
The petition for review is accordingly DISMISSED.