In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2661

OTAR SHARASHIDZE,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order 

of the Board of Immigration Appeals.

No. A77-857-926

____________

ARGUED FEBRUARY 16, 2007—DECIDED MARCH 16, 2007

____________

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. In October 2002, Otar

Sharashidze, an asylee from Georgia, was convicted of

indecent solicitation of a sex act, an Illinois misdemeanor

under 720 ILCS 5/11-14.1. Sharashidze’s conviction triggered removal proceedings against him in immigration

court. In January 2006, an immigration judge (“IJ”)

determined that Sharashidze’s offense constituted an

aggravated felony within the meaning of the Immigration

and Nationality Act (“INA”) because it involved a minor,

thus rendering Sharashidze deportable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of

an aggravated felony at any time after admission is

deportable.”). Accordingly, the IJ terminated Sharashidze’s
2 No. 06-2661

1 Documents related to Sharashidze’s asylum grant have

been filed under seal.

2 The Illinois statute pursuant to which Sharashidze was

charged 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).

asylee status and denied his pending application for

adjustment of status. The Board of Immigration Appeals

(“BIA”) affirmed the IJ’s decision, and Sharashidze

appeals. For the following reasons, we deny the petition for

review.

I. BACKGROUND

Otar Sharashidze is a native and citizen of Georgia. On

March 31, 1999, he legally entered the United States as

a non-immigrant. On November 25, 1999, the Immigration

and Naturalization Service granted him asylum.1

 In July

2002, Sharashidze was arrested and charged with indecent

solicitation of a sex act, a misdemeanor offense under

720 ILCS 5/11-14.1.2

 The criminal complaint against

Sharashidze stated that he “offered Evelyn M. Aguila[,] a

person not his spouse[,] mother of [child’s name,] a child

under 13 yrs of age, $20.00 USC, to allow him to have

sexual contact with same for the purpose of his sexual

gratification or arousal.” The complaint listed the complainant’s name as “Evelyn Aguila for [child’s name].” On

October 18, 2002, the trial court convicted Sharashidze of
No. 06-2661 3

3 In People v. Sharashidze, No. 1-03-2102 (Ill. App. Ct. Order

June 29, 2005), the Illinois Appellate Court summarized the

testimony of complaining witness Evelyn M. Aguila. According to the summary, Aguila and her seven-year-old son

entered Sharashidze’s convenience store on July 26, 2002.

After Aguila engaged Sharashidze in small talk, he gave

her son some free candy. Aguila informed Sharashidze she

was job hunting, and Sharashidze asked if she needed

money. After Aguila replied “no, thank you,” Sharashidze

told her he’d give her $20, wrote the amount on a scratch pad,

said “have sex,” and motioned to himself and Aguila’s son.

Sharashidze then said, “Please, please, $20,” but Aguila

refused, and Sharashidze continued pleading for “just two

minutes.” Aguila fled the store with her son, and Sharashidze

(continued...)

the charged offense. He was sentenced to 18 months of

probation, which he successfully completed on April 16,

2004.

On July 21, 2005, the Department of Homeland Security

(“DHS”) issued Sharashidze a Notice to Appear, alleging

that Sharashidze’s conviction rendered him deportable

under 8 U.S.C. § 1227(a)(2)(A)(iii) because he committed an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(A) (classifying sexual abuse of a minor as

an aggravated felony). It also charged that Sharashidze

was deportable under 8 U.S.C. § 1227(a)(2)(E)(I) because

he committed a crime of child abuse.

Sharashidze contested the charges of deportability,

arguing that his criminal offense did not involve a minor.

In rebuttal, DHS filed copies of the criminal complaint,

a certified statement of conviction, and a May 26, 2005

Illinois Appellate Court decision that affirmed

Sharashidze’s conviction and summarized the trial testimony.3

 The IJ considered the evidence, including the
4 No. 06-2661

3 (...continued)

followed them around the corner. Aguila contacted the

police, who subsequently arrested Sharashidze. Id. at 2-3.

Illinois Appellate Court decision, and concluded that

Sharashidze’s conviction constituted an aggravated felony

because the victim was a minor. The IJ also terminated

Sharashidze’s asylee status, finding that there were “no

countervailing factors that militate against termination.”

As a result of his terminated asylee status, Sharashidze

was no longer eligible for discretionary relief he had

requested under 8 U.S.C. § 1159(b), which permits

asylees to adjust their status to that of permanent resident.

Sharashidze appealed the IJ’s decision to the BIA,

claiming that the IJ improperly relied on the Illinois

Appellate Court decision, the IJ improperly found that

Sharashidze was convicted of soliciting a minor, and the

IJ should have considered his eligibility for adjustment of

status. The BIA affirmed the IJ’s decision, but based its

determination that the victim of Sharashidze’s offense

was a minor on the complaint alone. Sharashidze appeals

the BIA’s order.

II. DISCUSSION

Sharashidze makes two primary claims on appeal. First,

he contends that his conviction should not have been

classified as an aggravated felony because the government offered insufficient evidence that the offense involved a minor. Second, Sharashidze argues that the IJ

denied him due process by failing to conduct a hearing

on his eligibility for discretionary relief.
No. 06-2661 5

4 Sharashidze also contends that, even if his offense did

involve a minor, his conviction should not be categorized as

an aggravated felony. Ordinarily, we review de novo the

classification of an offense as an aggravated felony, giving

deference to the BIA’s reasonable interpretation of the INA.

See Marquez v. INS, 105 F.3d 374, 378 (7th Cir. 1997).

However, any significant inquiry into the issue is foreclosed

by our decision in Gattem v. Gonzales, which held that

solicitation of sexual contact with a minor in violation of the

statute under which Sharashidze was convicted constitutes

an aggravated felony. 412 F.3d 758, 765 (7th Cir. 2005).

Sharashidze attempts to distinguish Gattem because the

petitioner in that case directly solicited a minor whereas

Sharashidze is accused of soliciting a minor through the

child’s mother. Although he correctly observes that direct

solicitation of a minor presents an inherent risk of exploitation because minors as a group have a less developed sense of

judgment, see Gattem, 412 F.3d at 765, the presence of an

intermediary for the solicitation is a dubious basis for

distinction.

A. Aggravated Felony Classification

The IJ found, and the BIA agreed, that Sharashidze’s

conviction constituted 1) sexual abuse of a minor,

2) attempted sexual abuse of a minor, and 3) child

abuse—all aggravated felonies within the meaning of the

INA. Sharashidze challenges each finding based on the

same argument: that the record of conviction did not

clearly identify the intended target of his solicitation.4

Where, as here, the BIA supplements the IJ’s decision,

we review the two decisions together. Gjerazi v. Gonzales,

435 F.3d 800, 807 (7th Cir. 2006). We must uphold the

BIA’s determination that the conviction involved a minor

so long as it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.”
6 No. 06-2661

5 Sharashidze also contends that the IJ’s consideration of the

Illinois Appellate Court decision was improper. The BIA did

not rely on the Illinois Appellate Court decision because it

found that the complaint alone supported a finding that

Sharashidze’s conviction “involved a minor.” Because we

agree with the BIA that the complaint provided sufficient

evidence that Sharashidze targeted a minor, we need not

address whether the INA’s definition of “record of conviction”

encompasses appellate court decisions. 

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation and citation omitted).

The statute that Sharashidze violated is divisible,

meaning that it covers both solicitation of sexual acts

from adults (conduct that is not an aggravated felony

under the INA) and solicitation of sexual acts from minors

(conduct that constitutes an aggravated felony under

Gattem). Where a statute is divisible, courts may look to

the record of conviction to determine the factual basis of

the offense. See Gattem, 412 F.3d at 765. Under the INA,

the record of conviction includes, among other things, the

complaint, the judgment, and any document or record

prepared by, or under the direction of, the court in which

the conviction was entered that indicates the existence

of a conviction. 8 U.S.C. § 1229a(c)(3)(B). Sharashidze

argues that the record of conviction does not reveal

whether Sharashidze solicited a sex act from Evelyn

Aguila or her minor son.5

The complaint identifies the complainant as “Evelyn M.

Aguila for [son’s name].” This language indicates that

the actual complainant, i.e., the victim, was the minor

child. Moreover, although the complaint’s charge—that

Sharashidze “offered Evelyn M Aguila . . . mother of

[child’s name,] a child under 13 years of age, $20.00 USC,

to allow him to have sexual contact with same . . .”—uses
No. 06-2661 7

the ambiguous phrase “with same,” any logical interpretation of the phrase reveals that it refers to the minor child.

First, within the sentence, the phrase’s closest antecedent

is “[child’s name].” Second, if the complaint charged

Sharashidze with soliciting a sexual act from Evelyn

Aguila, it would be completely unnecessary to mention

her minor son. We therefore conclude that substantial

evidence supports the BIA’s finding that the minor child

was the intended victim of the solicitation.

B. Due Process Claim

Because Sharashidze’s conviction constituted an aggravated felony under the INA, this Court retains only

limited jurisdiction to review the BIA’s final order of

removal. See 8 U.S.C. § 1252(a)(2)(C) (stating that no

court shall have jurisdiction to review any final order of

removal against an alien who is removable for having

committed an aggravated felony). Specifically, this Court

may consider constitutional claims and questions of law

raised in proper petitions for review. See 8 U.S.C.

§ 1252(a)(2)(D); Hernandez-Alvarez v. Gonzales, 432 F.3d

763, 765 (7th Cir. 2005).

Sharashidze raises a due process claim, alleging that

the IJ improperly denied him the opportunity to present

evidence of countervailing equities that could be weighed

against DHS’s interest in deporting aggravated felons.

See, e.g., In re K-A-, 23 I & N Dec. 661, 665-66 (BIA 2004)

(recognizing that an IJ may grant permanent resident

status to an asylee convicted of an aggravated felony if

the asylee demonstrates sufficient equities). Specifically,

Sharashidze claims that the IJ denied him due process

by concluding that there were no countervailing equities

without conducting a subsequent hearing in which

Sharashidze could offer evidence of such equities.
8 No. 06-2661

At the threshold, we must determine whether

Sharashidze exhausted his due process claim in the

immigration court. Although petitioners generally do not

have to exhaust due process claims administratively, they

must raise such claims below when alleging procedural

errors correctable by the BIA. See Capric v. Ashcroft, 355

F.3d 1075, 1087 (7th Cir. 2004). 

Sharashidze argues that he raised his due process claim

below and the BIA rejected it. He directs us to a sentence

in his petition to the BIA seeking “remand to the immigration judge for reconsideration of the discretionary

determination to terminate appellant’s asylum status

rather than accept an application for adjustment of status.” Upon closer inspection of his BIA petition, however,

it is clear that Sharashidze did not complain to the Board

about the lack of an additional hearing. Rather, his

petition alleged that the IJ misconstrued the evidence

and misunderstood the nature of his conviction. The

petition did not refer to the IJ’s failure to hold a hearing on

the issue of countervailing equities, nor did it identify

evidence of countervailing equities that Sharashidze

would have presented at a hearing. In short, Sharashidze

did not exhaust his due process claim, which means that

this Court cannot review it. See 8 U.S.C. § 1252(d)(1)

(noting that a court may review an agency’s final order

only if the alien has exhausted all administrative remedies as of right).

III. CONCLUSION

For the foregoing reasons, we DENY the petition for

review and DISMISS Sharashidze’s due process claim for

lack of jurisdiction.
No. 06-2661 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-16-07