Espinoza-Franco v. Ashcroft

• Decision Date: 15 December 2004
• Docket Number: No. 03-2351.,03-2351.
• Parties: Walter Leopoldo ESPINOZA-FRANCO, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 461

394 F.3d 461

Walter Leopoldo ESPINOZA-FRANCO, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-2351.

United States Court of Appeals, Seventh Circuit.

Argued November 16, 2004.

Decided December 15, 2004.

Published January 3, 2005.^*

Peter Y. Qiu (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Anthony P. Nicastro (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, EVANS, and SYKES, Circuit Judges.

PER CURIAM.

Walter Leopoldo Espinoza-Franco was convicted under an Illinois statute of felony sexual abuse of his daughter. The Immigration and Naturalization Service (now Department of Homeland Security) began proceedings against him, arguing that he is removable because he committed "sexual abuse of a minor" — an aggravated felony under the Immigration and Nationality Act. After a hearing, an Immigration Judge ordered his removal, and the Board of Immigration Appeals affirmed. Espinoza-Franco admits having committed the crime but argues that it is not an aggravated felony. Because the crime does constitute an aggravated felony, we dismiss his petition for review of the administrative proceedings for lack of jurisdiction.

Espinoza-Franco was born in Ecuador. He was admitted to the United States as a lawful permanent resident in 1978. He is married and has three daughters. In 1996 Espinoza-Franco pleaded guilty to one count of felony aggravated criminal sexual abuse, see 720 ILCS 5/12-16(b), for fondling his daughter Martha's leg for his own sexual gratification or arousal. There is no dispute that Martha was seven and later eight years old at the time of the incidents giving rise to the conviction. The indictment included three other counts of aggravated criminal sexual abuse — including a count that he caused Martha to touch his penis for the purpose of his sexual gratification and arousal — as well as one count of unlawful restraint of Martha. None of these other counts was prosecuted. Espinoza-Franco served three years' probation.

In 1999 the INS began removal proceedings against Espinoza-Franco for committing what it termed the aggravated felony of "sexual abuse of a minor," see 8 U.S.C. § 1101(a)(43)(A). Espinoza-Franco initially admitted removability and conceded that his crime constituted an aggravated felony. He later moved to retract his concession. Relying on Solorzano-Patlan v. INS, 207 F.3d 869, 873-75 (7th Cir.2000), which established a generic definition of burglary because of disparity in state laws, Espinoza-Franco argued that his conviction under Illinois's relatively broadly defined statute should not be considered sexual abuse of a minor under the Immigration and Nationality Act. The IJ rejected his motion as Solorzano-Patlan involves the term "crime of violence" and thus was not on point with Espinoza-Franco's crime of conviction.

Ordering Espinoza-Franco's removal as an aggravated felon, the IJ also denied his request for asylum, withholding of removal, and relief under the Convention Against Torture. Despite denying relief, the IJ decided that the crime was not a "particularly serious crime" of the kind that constitutes a statutory exception to eligibility for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). In May 2000 Espinoza-Franco filed a motion for reconsideration with the Executive Office for Immigration Review, arguing that we had recently changed the law defining "sexual abuse of a minor," by holding that consensual sex between an 18-year-old alien and his 16-year-old girlfriend was not an aggravated felony. See United States v. Cruz-Guevara, 209 F.3d 644, 647 (7th Cir.2000). Espinoza-Franco reasoned that his crime must not be an aggravated felony if Cruz-Guevara's crime was not because, he maintained, Cruz-Guevara's was more serious since it involved penetration. The EOIR did not decide that motion, but it was forwarded to the Board of Immigration Appeals.

In May 2000 Espinoza-Franco appealed the IJ's order determining that he was an aggravated felon and denying withholding of removal and relief under the Convention Against Torture. Espinoza-Franco argued that the term "sexual abuse of a minor" must be defined by reference to 18 U.S.C. §§ 2243, 2246, to require the touching of "genitalia, anus, groin, breast, inner thigh, or buttocks." The INS cross-appealed the IJ's decision that Espinoza-Franco's conviction was not a "particularly serious crime."

The BIA dismissed Espinoza-Franco's appeal. The BIA explained that we had already rejected the argument that sexual abuse of a minor should be defined by reference to any particular statute. See Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir.2001). The BIA added that Espinoza-Franco's proposed definition would "impose an unnecessarily restrictive definition of `sexual abuse of a minor.'" Next, the BIA rejected Espinoza-Franco's argument that he should not be considered an aggravated felon under Cruz-Guevara, 209 F.3d at 647, because Espinoza-Franco's crime of abusing his seven-year-old daughter was much more severe than consensual sex between the teenagers in Cruz-Guevara. The BIA decided that Espinoza-Franco's crime was an aggravated felony under Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995, 1999 WL 731793 (BIA 1999), which defined sexual abuse of a minor by reference to 18 U.S.C. § 3509 to include "`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.'" The BIA determined that Espinoza-Franco failed to carry his burden under the Convention Against Torture of establishing the likelihood that he would be tortured if returned to Ecuador. Last, the BIA sustained the government's cross-appeal and determined that Espinoza-Franco's crime was a "particularly serious crime," reasoning that crimes of sexual abuse against children involve a heightened risk of violence and noting that Espinoza-Franco's crime violated his daughter's trust.

In his petition for review, Espinoza-Franco argues that he has not committed an aggravated felony because the Illinois sexual abuse law that was the basis for his conviction is broader than the definition of "sexual abuse of a minor" under the Immigration and Nationality Act. Specifically, he contends that Illinois's law is an outlier, and he would not have been convicted for "merely" rubbing a child's leg under most other states' laws and the federal law criminalizing sexual abuse of a minor, see 18 U.S.C. §§ 2241-48. Because immigration law demands uniformity, see U.S. Const. art. I, § 8, cl. 4, he urges us to enumerate basic elements of the crime to craft a single definition consistent with the majority of states and the federal law. He proposes a definition that would require touching "intimate parts," like genitalia, etc., and that would overrule the BIA's definition (which adopts § 3509 by reference).

Congress has stripped us 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), which is defined to include "sexual abuse of a minor," see 8 U.S.C. § 1101(a)(43)(A). Nevertheless, we retain jurisdiction to consider the limited question of whether we have jurisdiction — that is, whether Espinoza-Franco has been convicted of an aggravated felony under § 1101(a)(43)(A). Lara-Ruiz, 241 F.3d at 939; Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir.2001). Similarly, we retain jurisdiction over cases where there has been a substantial violation of an alien's constitutional rights, although such an assertion of jurisdiction is an "exceptional procedure" to be invoked sparingly. Lara-Ruiz, 241 F.3d at 939 (quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir.1999)).

Espinoza-Franco's arguments notwithstanding, we have already declined to adopt a "formal definition" enumerating the elements of "sexual abuse of a minor" under the Immigration and Nationality Act. See United States v. Martinez-Carillo, 250 F.3d 1101, 1104 (7th Cir.2001) (comparing Solorzano-Patlan, 207 F.3d at 874 with Lara-Ruiz, 241 F.3d at 942). Instead, we have held 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." Martinez-Carillo, 250 F.3d at 1104; see Lara-Ruiz, 241 F.3d at 940; accord United States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th Cir.2000); United States v. Baron-Medina, 187 F.3d 1144, 1146-47 (9th Cir.1999). Indeed, we have already rejected Espinoza-Franco's argument that sexual abuse of a minor must be defined by reference to §§ 2241-48 instead of § 3509. See Lara-Ruiz, 241 F.3d at 942.

To determine whether a state conviction fits the Immigration...