Lara-Ruiz v. Immigration & Naturalization Service

• Decision Date: 06 March 2001
• Docket Number: LARA-RUI,P,No. 99-2868,99-2868
• Citation: 241 F.3d 934
• Parties: (7th Cir. 2001) RICARDOetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 934

241 F.3d 934 (7th Cir. 2001)

RICARDO LARA-RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-2868

In the United States Court of Appeals For the Seventh Circuit

Argued October 26, 2000

Decided March 6, 2001

Petition for Review of an Order of the Board of Immigration Appeals No. A17-761-237

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Before Bauer, Posner, and Ripple, Circuit Judges.

Bauer, Circuit Judge.

Ricardo Lara-Ruiz ("Lara- Ruiz") appeals the decision of the Board of Immigration Appeals ("BIA") which found him removable from the United States for committing the "aggravated felony" of "sexual abuse of a minor," and statutorily ineligible for discretionary relief from removal. Lara-Ruiz argues that he did not commit sexual abuse of a minor under 8 U.S.C. sec. 1101(a) (43)(A), and that the application of the recently enacted provisions of the Immigration and Nationality Act ("INA") adding sexual abuse of a minor to the list of aggravated felonies and making Lara-Ruiz ineligible to apply for relief from removal violated his rights to due process and equal protection. We find that Lara-Ruiz did commit sexual abuse of a minor and that he fails to raise any substantial constitutional claims. Therefore, we dismiss his appeal for lack of subject matter jurisdiction.

BACKGROUND

Lara-Ruiz is a Mexican national who was granted lawful permanent residence in the United States in 1967. In 1994, he was convicted of sexual assault under Ill.Rev. Stat. 1991, ch. 38, para.para. 12-13(a)(1) and sec. 12-13(a)(2). Section 12- 13(a)(1) defines "sexual assault" as "commit[ting] an act of sexual penetration by the use of force or threat of force," and sec. 12- 13(a)(2) defines it as "commit[ting] an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent." The record indicates that Lara-Ruiz' victim was a four-year-old girl.

On December 14, 1998, the Immigration and Nationalization Service ("INS") issued a Notice to Appear placing Lara-Ruiz in removal proceedings. The INS charged him as removable because he had been convicted of an aggravated felony under INA sec. 237(a)(2)(A)(iii), codified at 8 U.S.C. sec. 1227(a)(2)(A)(iii). Specifically, the INS charged him with committing sexual abuse of a minor, which is an aggravated felony under sec. 101(a)(43)(A) of the INA, codified at 8 U.S.C. sec. 1101(a)(43)(A).

On February 10, 1999, Lara-Ruiz attended a hearing before an Immigration Judge ("IJ"), during which he conceded alienage but denied removability. The IJ found him removable as charged. The IJ also concluded that because Lara- Ruiz was an alien convicted of an aggravated felony, he was statutorily ineligible for discretionary cancellation of removal under 8 U.S.C. sec. 1229b(a)(3), and that he "d[id] not appear to be entitled to any other relief from removal." Lara-Ruiz appealed to the BIA, arguing that his Illinois convictions for sexual assault did not constitute sexual abuse of a minor and that the application of amendments to the INA which classified sexual abuse of a minor as an aggravated felony and removed his eligibility to apply for discretionary relief from removal was impermissibly retroactive, and therefore violated his due process rights. The BIA dismissed his appeal, finding that his Illinois convictions counted as sexual abuse of a minor, and declined to address his constitutional claim.

Lara-Ruiz appeals the BIA's decision, reasserting the arguments that he made before the BIA, and adding the contention that sec. 212(h) of the INA violates his rights to equal protection under the Due Process Clause of the Fifth Amendment by making lawful permanent resident aliens who commit aggravated felonies statutorily ineligible to receive a waiver of inadmissibility, while leaving illegal aliens who commit the same offenses eligible to apply for such relief. The INS argues that we lack jurisdiction to hear the appeal because Lara-Ruiz is an alien who has been ordered removed as an "aggravated felon" and because his constitutional claims are meritless.

DISCUSSION

A. Jurisdiction

As a preliminary matter, the government argues that sec. 1242(a)(2)(c) of the INA, codified at 8 U.S.C. sec. 1252(a)(2) (C), strips us of jurisdiction to hear Lara-Ruiz' claims. That section provides:

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), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2) (A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. sec. 1252(a)(2)(C).

Section 1227(a)(2)(A)(iii) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Therefore, sec. 1252(a)(2)(C) generally eliminates our jurisdiction to review any final order of deportation against an alien convicted of an aggravated felony. However, we retain jurisdiction to determine whether we have jurisdiction--that is, to determine whether an alien's criminal conviction is indeed an "aggravated felony" under the INA, thereby triggering the jurisdictional bar of sec. 1252(a)(2)(C). See, e.g., Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997). Moreover, in addressing a similar jurisdictional bar announced in an earlier enacted amendment to the INA, we have held that an alien may challenge his deportability on constitutional grounds directly in the courts of appeals, provided that he raises a substantial constitutional claim. See Morales- Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir. 2000); Singh v. Reno, 182 F.3d 504, 509 (7th Cir. 1999); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998). Thus, while we honor Congress' intent to curtail judicial review of final deportation orders for certain disfavored criminals, we have retained jurisdiction over any substantial constitutional claims raised as a "safety valve" to prevent "bizarre miscarriages of justice." See LaGuerre, 164 F.3d at 1040. However, we have recognized that such direct review of constitutional claims is an "exceptional procedure," see Singh, 182 F.3d at 510, which is available only when the alien raises substantial constitutional claims. See Moralez-Ramirez, 209 F.3d at 981. Thus, in addressing Lara-Ruiz' appeal, we must first determine whether the BIA correctly concluded that Lara-Ruiz was "an alien deportable by reason of having committed an aggravated felony." If we answer that question in the affirmative, we must then consider whether Lara-Ruiz has nevertheless raised substantial constitutional claims, and we may assert jurisdiction over Lara-Ruiz' claims only if we find that he has.¹ As both of these inquiries are jurisdictional in nature, we review them de novo. See, e.g., Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir. 2000).

B. Sexual abuse of a minor

Lara-Ruiz argues that he is not deportable because his state conviction for sexual assault does not constitute the aggravated felony of sexual abuse of a minor under sec. 101(a)(43)(A). He notes that the crime "sexual abuse of a minor" is defined at 18 U.S.C. sec. 2243(a) as knowingly engaging in a sex act with a person who is at least 12 but not yet 16, and who is at least four years younger than the offender. He argues that the BIA was obligated to use sec. 2243's definition of "sexual abuse of a minor," since this is the only definition of that exact phrase contained in the U.S. Code. Because Lara-Ruiz' victim was not between the ages of 12 and 16, he maintains that he did not commit "sexual abuse of a minor." He also notes that the principle of lenity, which is applicable to deportation proceedings, see INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987), requires us to construe sec. 101(a)(43)(A) narrowly and to resolve all matters of doubt as to its interpretation in his favor. He contends that the BIA violated this principle when it found that he had committed sexual abuse of a minor. We are not persuaded.²

The phrase "sexual abuse of a minor" is not defined in sec. 101(a)(43)(A), either expressly or by reference to any other statutory provision. In attempting to determine its meaning, the BIA began by noting that it was not obliged to adopt any particular federal or state statutory definition as controlling. However, the BIA went on to note that, since removal proceedings are a matter of federal law, "it is useful to look at federal definitions in determining the meaning of the language used by Congress." With this principle in mind, the BIA turned to consider two federal statutory provisions which it deemed relevant. Specifically, the BIA considered 18 U.S.C. sec. 2241(c), which provides that "[whoever] . . . knowingly engages in a sexual act with another person who has not attained the age of 12 years" has committed the offense of aggravated sexual abuse, and 18 U.S.C. sec. 2246(2)(A), which defines "sexual act" as including contact between the male and female genitals. The BIA ruled that conduct which fell within the meaning of these two statutory provisions would constitute sexual abuse of a minor under sec. 101(a)(43)(A). The BIA then considered the "conviction documents"³ relating to Lara-Ruiz' Illinois sexual assault convictions--which established that Lara-Ruiz had intentionally performed a sexual act upon a four- year-old child in that he had initiated the contact of his genitals with the genitals of the victim--and concluded that these actions fell within the ambit of 18 U.S.C. sec.sec. 2241(c) and 2246(2)(A), and therefore counted as the aggravated felony of "sexual abuse of a minor."

We find the BIA's definition of sexual...