Gaiskov v. Holder

• Citation: 567 F.3d 832
• Decision Date: 28 May 2009
• Docket Number: No. 08-2700.,08-2700.
• Parties: Mikhail GAISKOV, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

567 F.3d 832

Mikhail GAISKOV, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-2700.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2009.

Decided May 28, 2009.

Lee A. O'Connor (argued), Indiana Legal Services Incorporated, South Bend, IN, for Petitioner.

Thomas Fatouros (argued), Department of Justice, Washington, DC, for Respondent.

Before BAUER, and FLAUM, Circuit Judges, and KAPALA, District Judge.^*

FLAUM, Circuit Judge.

Mikhail Gaiskov, a citizen of Russia and permanent resident of the United States, seeks review of a decision of the Board of Immigration Appeals (the "Board" or "BIA") that determined that when Gaiskov violated Ind.Code § 35-42-4-9(b), he engaged in "sexual abuse of a minor" and therefore committed an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (the "INA"). That finding makes Gaiskov removable from the United States. See 8 U.S.C § 1227(a)(2)(a)(iii). As explained below, the Board did not err in its conclusion that Gaiskov committed an aggravated felony. Accordingly, we deny Gaiskov's petition for review.

I. Background

Petitioner Mikhail Gaiskov is a 22-year-old citizen of Russia and lawful permanent resident of the United States. On August 20, 2007 Gaiskov pleaded guilty to sexual misconduct with a minor in violation of Ind.Code § 35-42-4-9(b).¹ The Indiana statute provided:

A person at least eighteen (18) years of age who with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to any fondling or touching, of either the child or the older person, with the intent to arouse or satisfy the sexual desires of either the child or the older person, commits sexual misconduct with a minor, a Class D felony.

Ind.Code § 35-42-4-9(b). Based on this conviction, the government issued a Notice to Appear alleging that Gaiskov was deportable as an alien convicted of an "aggravated felony," namely "sexual abuse of a minor." See 8 U.S.C. § 1101(a)(43)(A) (defining the term "aggravated felony" as "murder, rape, or sexual abuse of a minor"). In the course of the removal proceedings, Gaiskov admitted the fact of the conviction but contended that a conviction under the Indiana statute did not constitute sexual abuse of a minor as a matter of law. Specifically, Gaiskov argued that Ind. Code § 35-42-4-9(b) covered sexual misconduct that is broader than how the Board of Immigration appeals and this court have interpreted the term "sexual abuse of a minor."

On March 13, 2008 the immigration judge ("IJ") issued a written decision concluding that Gaiskov had been convicted of an offense involving "sexual abuse of a minor." At the outset, the IJ determined that the Board interpreted "sexual abuse of a minor" broadly, citing Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 993-94 (B.I.A.1999). Looking at the crime of conviction, the judge concluded that Gaiskov's conviction met the Board's definition of "sexual abuse of a minor" because its terms required that the touching be accompanied by the specific intent to arouse or satisfy sexual desires. The immigration judge reasoned that this requirement precluded a person being convicted for "simple touching." As the immigration judge stated in his opinion, "the sexually exploitive nature of the touching makes the contact with the minor a criminal offense" that fit the definition of "sexual abuse of a minor."

Gaiskov appealed to the Board. On June 16, 2008 the Board issued a decision adopting and affirming the immigration judge's decision. In its brief supplementary analysis, the Board stated its belief that the law of the Seventh Circuit further foreclosed Gaiskov's contention that his crime of conviction did not constitute "sexual abuse of a minor." The instant petition followed.

II. Discussion

Congress has stripped this court 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). Nevertheless, "we retain jurisdiction to consider the limited question of whether we have jurisdiction — that is, whether [Gaiskov] has been convicted of an aggravated felony under § 1101(a)(43)(A)." Espinoza-Franco v. Ashcroft, 394 F.3d 461, 464 (7th Cir.2004) (citations omitted).

Because the Board's decision adopted and affirmed the IJ's conclusion as well as providing its own analysis, we review both decisions. See Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir.2006). We review the determination that Gaiskov is removable because he is an aggravated felon de novo. Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir.2001). However, in reviewing the Board's interpretation of the INA, "we defer to the BIA's interpretation of the statute it administers." Id.; see also Draganova v. INS, 82 F.3d 716, 720 (7th Cir.1996) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). We must defer to the BIA's construction "so long as it is `consistent with the language and purposes of the statute.'" Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir.2005) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 426, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

The INA defines the term "aggravated felony" as "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). However, Congress has not further defined what crimes constitute "sexual abuse of a minor." The Attorney General, who is charged with the administration and enforcement of the INA, has delegated that task to the Board. See Gattem, 412 F.3d at 763. In Matter of Rodriguez-Rodriguez, the Board defined the term in a broad manner consistent with the definition contained in 18 U.S.C. § 3509(a), a statute concerning the rights of child victims and child witnesses in the context of federal proceedings. 22 I. & N. Dec. at 993-94. That statute defines "sexual abuse" as

[T]he 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[.]

18 U.S.C. § 3509. The Board believed that this broad definition was best able to reflect the full range of criminal conduct that can be understood to constitute sexual abuse of a minor. See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. But the Board also emphasized that it was using 18 U.S.C. § 3509 only as a guide and did not intend for it to be a "definitive standard" that fixed the outer boundaries of the term's meaning. See Rodriguez-Rodriguez, 22 I. & N. Dec. at 996. This court has concluded that the BIA's use of the broad definition found in 18 U.S.C. § 3509 as an interpretive touchstone is reasonable. See Lara-Ruiz v. INS, 241 F.3d 934, 941-42 (7th Cir.2001); Gattem, 412 F.3d at 763-65 (approving of the Board's use of 18 U.S.C. § 3509 as an interpretive guide).

In this case, the immigration judge and Board determined that Gaiskov's offense was within the range of conduct that 18 U.S.C. § 3509 defines as sexual abuse and that Gaiskov was thus removable as an aggravated felon. To review that determination, we employ a "categorical approach." See Gattem, 412 F.3d at 765. That is, we compare the crime of conviction with the more generic term used in 8 U.S.C. § 1101(a)(43) and then determine whether the conduct required for a conviction would categorically constitute "sexual abuse of a minor."² See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

To obtain a conviction under Ind. Code § 35-42-4-9(b), the government must prove (1) that the defendant was at least eighteen years old at the time of the offense, (2) that the defendant fondled or touched (or submitted to fondling or touching by) a fourteen or fifteen-year-old minor, and (3) that the defendant did so with the intent to arouse or satisfy his sexual desire or the sexual desire of the child. In analyzing the Board's finding that this offense constitutes sexual abuse of a minor, we note that this court has taken a broad view of that classification in the immigration context. In Gattem v. Gonzales, we held that the Board correctly determined that the petitioner's conviction for sexual solicitation qualified as a conviction for sexual abuse of a minor. 412 F.3d at 767. The statute in Gattem, 720 ILCS 5/11-14.1(a), did not require that the defendant physically touch the victim, let alone that the defendant touch the victim in a sexual manner. Nonetheless, we found that an adult's solicitation of a minor was abusive because it exploited the minor's vulnerability to "corrupt influences" and took advantage of the minor's "less well-developed sense of judgment." Gattem, 412 F.3d at 766 (there exists "an inherent risk of exploitation, if not coercion, when an adult solicits a minor to engage in sexual activity"); see also Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir.2005) (citing Gattem and holding that indecent solicitation of a child qualifies as an aggravated felony).

Like the crime in Gattem, the crime here exploits a minor's vulnerability and "less well-developed sense of judgment." Gattem, 412 F.3d at 766. An adult who touches a child with a sexual intent is, like the solicitor in Gattem, exploiting a person who "may well be incapable of fully appreciating the consequences of yielding" to the defendant's advances. Id. But the statute here contemplates even more serious sexual abuse because it requires that the adult touch the child with the intent to arouse or satisfy sexual desire. We first note that the youth of the victims of this crime could prevent the victims from giving effective consent to sexual touching, and sexual touching without consent is abusive. Moreover, the touching of a child with a sexual intent (as opposed to the use of words, as in Gattem) implicates...