Guerrero-Perez v. I.N.S.

• Decision Date: 05 March 2001
• Docket Number: PETITIONE,No. 00-1799,V,GUERRERO-PERE,00-1799
• Citation: 242 F.3d 727
• Parties: (7th Cir. 2001) JOSE F.IMMIGRATION AND NATURALIZATION SERVICE, AND JOHN ASHCROFT, RESPONDENTS
• Court: U.S. Court of Appeals — Seventh Circuit

Page 727

242 F.3d 727 (7th Cir. 2001)

JOSE F. GUERRERO-PEREZ, PETITIONER,

V.

IMMIGRATION AND NATURALIZATION SERVICE, AND JOHN ASHCROFT, RESPONDENTS.

No. 00-1799

U.S. Court of Appeals, Seventh Circuit

Argued January 9, 2001

Decided March 05, 2001

On Petition for Review From the Board of Immigration Appeals No. A24 496 118

Before Flaum, Chief Judge, and Bauer and Coffey, Circuit Judges.

Flaum, Chief Judge.

The Immigration Court found Jose F. Guerrero-Perez removable on the grounds that he had: (1) committed an aggravated felony--that is, sexual abuse of a minor, and (2) been convicted of the crime of child abuse. The Board of Immigration Appeals ("BIA") affirmed the Immigration Court's decision concerning Guerrero's removability and dismissed his appeal. Guerrero appeals to this court arguing that because his criminal sexual abuse conviction under Illinois law is considered a Class A misdemeanor, and not a felony, he cannot be deemed to have committed an aggravated felony under sec. 101(a)(43)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. sec. 1101(a)(43)(A). For the reasons stated below, we affirm the decision of the BIA.

Background

Guerrero is a native and citizen of Mexico.¹ He was born on January 25, 1979 and entered the United States on March 28, 1979 when he was just over two months old, as an immigrant child admitted for Lawful Permanent Residence without an immigrant visa in accordance with 8 C.F.R. sec. 211. The Immigration and Naturalization Service ("INS") in a Notice To Appear, dated July 26, 1999, charged that Guerrero was subject to removal: (1) under sec. 237(a)(2)(A)(ii) of the INA, 8 U.S.C. sec. 1227(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude; (2) under sec. 237(a)(2)(A)(iii) of the INA, 8 U.S.C. sec. 1227(a)(2)(A)(iii), because he had been convicted of the aggravated felony of sexual abuse of a minor, as defined in sec. 101(a)(43)(A) of the INA, 8 U.S.C. sec. 1101(a)(43)(A); and (3) because he was convicted of child abuse, sec. 237(a)(2)(E)(i) of the INA, 8 U.S.C. sec. 1227(a)(2)(E)(i). The Immigration Judge ("IJ") did not find Guerrero removable on the basis that he had committed two crimes involving moral turpitude under 8 U.S.C. sec. 1227(a)(2)(A)(ii). Both the IJ and the BIA determined that Guerrero was removable because of his aggravated felony conviction, 8 U.S.C. sec. 1227(a)(2)(A)(iii), for sexual abuse of a minor, 8 U.S.C. sec. 1101(a)(43)(A) and his conviction for child abuse, 8 U.S.C. sec. 1227(a)(2)(E)(i). Aliens who have committed child abuse are not considered aggravated felons and are eligible for cancellation of removal. An alien deemed to have committed an aggravated felony does not have the right to cancellation of removal, sec. 240 (A)(a)(3) of the INA, 8 U.S.C. sec. 1229b(a)(3), and therefore whether we find Guerrero to be an aggravated felon is critical in this case. As a consequence, we will limit our discussion to this issue. In his appeal, Guerrero argues that under the INA, an immigrant cannot be considered an aggravated felon if he or she was convicted of a misdemeanor rather than a felony.²

Discussion

A. Jurisdiction

The government argues that we lack jurisdiction to consider Guerrero's petition for review. According to the government, sec. 242(a)(2)(C) of the INA, 8 U.S.C. sec. 1252(a)(2)(C) limits our review because it states that: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii) [aggravated felony] . . ." (emphasis added). The BIA found Guerrero removable because he had been convicted of an aggravated felony (sexual abuse of a minor), 8 U.S.C. sec. 1227(a)(2)(A)(iii), which is covered by 8 U.S.C. sec. 1252(a)(2)(C). Notwithstanding this potential bar to review, the government concedes that the court retains its authority to review the jurisdictional facts upon which the removal proceedings were based, including a determination of whether in fact Guerrero is an alien who is removable because he has committed a criminal offense listed in the relevant statute. The government's position is that the BIA properly determined that the INS had established Guerrero's alienage and removability. Specifically, Guerrero's conviction for criminal sexual abuse constitutes an aggravated felony. Because this conviction is a disqualifying crime under 8 U.S.C. sec. 1252(a)(2)(C), the government contends that we must dismiss Guerrero's petition for review because this Court lacks jurisdiction over Guerrero's claim.

The government has not presented a successful argument as to why we should not review this case. While it may be true that 8 U.S.C. sec. 1252(a)(2)(C) suggests that we do not have the authority to review cases involving the removability of aggravated felons, this statute does not foreclose completely our inquiry into this matter. We must determine whether this Court has jurisdiction over this case. As a consequence, we have the jurisdiction to decide whether Guerrero has been convicted of an aggravated felony. See Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999) ("Notwithstanding the unreviewability of cases involving deportation of aggravated felons, however, this Court does have jurisdiction to determine whether it has jurisdiction; that is, we have jurisdiction to determine whether Xiong has been convicted of an aggravated felony."). "[B]oth jurisdiction and the merits turn" on whether Guerrero has committed an aggravated felony. Id. Having determined we have jurisdiction to review Guerrero's case, we now turn to examine his argument that his misdemeanor conviction for criminal sexual abuse does not constitute an aggravated felony.

B. Aggravated Felony: Can it be a Misdemeanor?

We review the BIA's determination that Guerrero is removable because he is an aggravated felon de novo. Xiong, 173 F.3d at 605. Nevertheless, we defer to the BIA's interpretation of the statute it administers. Id.; see also Marquez v. INS, 105 F.3d 374, 378 (7th Cir. 1997). Further, we accord deference to the BIA's factual findings, and we will reverse the BIA only if the record lacks substantial evidence to support its factual conclusions. Sayaxing v. INS, 179 F.3d 515, 519 (7th Cir. 1999).

This appeal centers around whether Guerrero committed an aggravated felony. In April of 1999, Guerrero pled guilty in Illinois state court to the offense of "criminal sexual abuse." According to Illinois law, "[t]he accused commits criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim." 720 ILCS 5/12-15(c). Guerrero received a Class A misdemeanor conviction for his action. The criminal complaint indicates that Guerrero committed an act of sexual penetration with a girl, and at the time, he was nineteen years old and she was fifteen years old. As a result of his guilty plea, Guerrero was sentenced to 30 days work release and two years of sex offender probation. The IJ in his oral decision said that Guerrero had committed the aggravated felony of sexual abuse of a minor and the crime of child abuse. Accordingly, he was not entitled to cancellation of removal under sec. 240(A) of the INA, 8 U.S.C. sec. 1229b, because this statute does not allow for such relief if an alien has been convicted of an aggravated felony. See 8 U.S.C. sec. 1229b(a)(3). During argument before the IJ, Guerrero's counsel raised the issue that Guerrero's conviction was a Class A misdemeanor, and not a felony, and therefore should not be considered an aggravated felony. The IJ, after rendering his oral decision, said, "I did forget to address in my decision the argument that the respondent's conviction was a misdemeanor and not a felony. The Board of Immigration Appeals has held in a number of unprecedented decisions, which I've received[,] that . . . even misdemeanors can constitute aggravated felonies under the Immigration Act. So even if the respondent's conviction for criminal sexual abuse was a misdemeanor, I would find that it still constitute[d] an aggravated felony under the Act." It is difficult to track this brief comment made by the IJ because he did not provide any such case citations for the proposition that the BIA has held that misdemeanors can constitute aggravated felonies nor has the government in this appeal. Additionally, the BIA did not proceed to analyze this question. Rather, it concluded that Guerrero's behavior was sexual abuse of a minor as defined in In re Rodriguez-Rodriguez, Interim Decision 3411 (BIA 1999). In Rodriguez-Rodriguez, the BIA determined that sexual abuse of a minor included: "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." 18 U.S.C. sec. 3509(a)(8). Applying this definition, the BIA stated that "[t]his statute [18 U.S.C. sec. 3509(a)(8)] encompasses the conduct at issue here [Guerrero's behavior]." According to the BIA, Guerrero had committed an aggravated felony as well as child abuse. Although the BIA acknowledged that Guerrero's conviction was a Class A misdemeanor, its decision is silent with regard to the issue of whether Guerrero's misdemeanor conviction can be deemed an aggravated felony. Thus, we begin with a limited commentary by the IJ on the misdemeanor-felony question, and no analysis on the issue by the BIA.

On the other hand, Guerrero's position is quite explicit. He argues that he never committed a felony, and certainly not an aggravated felony. Guerrero points to several decisions by this Court, which he believes support his...