Gattem v. Gonzales

• Decision Date: 20 June 2005
• Docket Number: No. 04-2102.,04-2102.
• Parties: Srivenugopala GATTEM, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

412 F.3d 758

Srivenugopala GATTEM, Petitioner, v. Alberto R. GONZALES,¹ Respondent.

No. 04-2102.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2005.

Decided June 20, 2005.

COPYRIGHT MATERIAL OMITTED

Rebecca M. Reyes (argued), Azulay, Horn & Seiden, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Chicago, IL, Carol Federighi, Eric Marsteller (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

ILANA DIAMOND 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 when Gattem solicited a minor to engage in a sexual act, he committed sexual abuse of a minor and therefore an aggravated 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 removable from the United States, see 8 U.S.C. § 1227(a)(2)(a)(iii), but also makes him ineligible for cancellation of removal, 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 pursuant 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 subsequently 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 applications, 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 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 anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification, 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 exchange 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 probation. A.R. 94.³

The government took the position that the crime of which Gattem had been convicted constituted "sexual abuse of a 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 acknowledged the conviction and admitted that the individual from whom he had solicited a sexual act was a juvenile under the age of 17. A.R. 34, 50.⁴ 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. 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 solicitation 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 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 assess our own jurisdiction, Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947), overruled on other grounds by implication by Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and as we explained 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 questions 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 division." 119 Stat. at 311. Thus, to the extent that the Board's 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, 143 L.Ed.2d 590 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). Because Congress did not define what constitutes 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 administration 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)...