Gattem, Srivenugopal v. Gonzales, Alberto R.

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