# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 26, 2005

Decided July 11 , 2005

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

No. 04-1282

DARWIN CALILAP,

Petitioner

,

v.

ALBERTO R. GONZALES, Attorney

General of the United States,

Respondent

. On Petition for Review of an Order of

the Board of Immigration Appeals.

No. A76-675-725

**O R D E R**

Darwin Calilap, a native and citizen of the Philippines, petitions for review of

a Board of Immigration Appeals order of removal. The immigration judge determined

that Calilap had been convicted in Illinois state court of attempted criminal sexual

abuse, that the aim of his attempt was to procure a minor, and that he was removable

for committing “attempted sexual abuse of a minor”—an “aggravated felony” under the

Immigration and Nationality Act. We agree and deny his petition for review.

Calilap was paroled into the United States in May 1999 and later adjusted his

status to lawful permanent resident. About two months after his arrival, an Illinois

grand jury charged him with attempted aggravated criminal sexual abuse. 720 ILCS

5/8-4(a), 5/12-16(d). The indictment alleged that Calilap attempte d via computer to

arrange a sexual tryst with a minor between the ages of 13 and 17 and more than five

years his junior, and that Calilap then arrived at the designated time and place to have UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-1282 Page 2

sex with that person. Calilap pleaded guilty to the lesser charge of attempted criminal

sexual abuse in violation of 720 ILCS 5/12-15(C) and was sentenced to two years’

probation. Neither the sentencing order nor anything else in the administrative record

identifies the precise statutory basis of his conviction, presumably 720 ILCS 5/8-4, the

Illinois statute pertaining to attempts to engage in criminal sexual abuse. See People

v. Walter , 810 N.E.2d 626, 629-30 (Ill. App. 2004).

In December 2000 the Immigration and Naturalization Service filed a Notice to

Appear (“NTA”), charging Calilap with remov ability based on his conviction of (1)

sexual abuse of a minor, an aggravated felony, INA §§ 237(a)(2)(A)(iii), 101(a)(43)(A),

8 U. S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(A), and (2) a crime of child abuse, INA

§ 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). Significantly, the NTA alleged erroneously

that Calilap was convicted of the completed crime of sexual abuse. Moreover, the NTA

neglected to cite INA § 10 1 (43)(U), which defines “aggravated felony” to include

attempts. As evidence of Calilap’s conviction, the government submitted the state

court’s order sentencing Calilap for attempted crimin al sexual abuse and the

indictment charging him with attempted aggravated criminal sexual abuse.

Calilap denied that he was convicted of criminal sexual abuse under 720 ILCS

5/12-15(C)—he was actually convicted of an attemp t to violate that provision—and

denied removability on the basis of a conviction for an aggravated felony or child abuse

because his conviction involved not a minor, but an adult polic e officer posing as a

minor.

At a removal hearing, the government informally amended the NTA’s principal

allegation by inserting the word “Attempted” immediately before “Criminal Sexual

Abuse in violation of 720 ILCS 5/12-15(C).” The IJ granted the government leave to

amend the NTA formally, but he did not impose a deadline. He also granted Calilap a

40-da y continuance in order to reply in writing. The government, however, never

amended the principal allegation to refer to the relevant Illinois statutory provision for

attempt, nor did it change the aggravated felony charge to include § 101(a)(43)(U).

The IJ con cluded that Calilap had committed an aggravated felony and was

therefore removable under INA § 237(a)(2)(A)(iii). In reaching this conclusion, the IJ

first determined that the sentencing order established Calilap’s con viction of an

attempt to commit criminal sexual abuse, in violation of 720 ILCS 5/12-15(C). The IJ

next found that Calilap’s intended victim was a minor, based on the language of the

indictment and Calilap’s own description of the offense. The IJ then reasoned that

Calilap was convicted of an attempt to abuse a minor sexually—an aggravated felony

as defined by INA §§ 101(a)(43)(A), 101(a)(43)(U). The IJ’s analysis did not discuss the

government’s failure to amend the aggravated felony charge in the NTA or its failure

to cite INA § 101(a)(43)(U), which incorporates attempt into the definition of

“aggravated felony.” The IJ ordered Calilap removed to the Philippines.No. 04-1282 Page 3

Calilap filed a notice of appeal to the BIA, contesting the finding of removability

on two grounds. First, he argued that the IJ erred in finding him removable because

the government never formally amended the NTA (1) to allege that he was convicted

of attempt or (2) to charge him on that basis with removability. Second, he challenged

the IJ’s finding that his conviction fell within the class of ag gravated felonies as a

matter of law. In the brief he subsequently filed with the BIA, Calilap argued only that

he had not committed an aggravated felony. He contended that his conviction of

attempted criminal sexual abuse was not an attempt under § 101(a)(43)(U) because he

“did not complete a substantial step towards abusing a minor...because there was no minor.” The BIA “streamlined” the case and without opinion affirmed the IJ’s order.

At the outset , the government argued that we lack jurisdiction to review the

final order of removal entered against Calilap for committing an “aggravated felony,”

INA §§ 242(a)(2)(C), 237(a)(2)(A)(iii). Even at the time of oral argument, this position

overstated matters. We always retain jurisdiction to determine whether we have

jurisdiction—that is, whether Calilap has been convicted of an “aggravated felony”

under the INA. Lara-Ruiz v. INS , 241 F.3d 934, 939 (7th Cir. 2001). Now, the rule on

which the government relied has largely been superseded by a new statute. The REAL

ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310-311 (2005), amended the judicial

review provisions of the INA, which now state that “[n]othing in subparagraph (B) or

(C), or in any other provision of this Act (other than this section) which limits or

eliminates judicial review, shall be construed as pr e cluding review of constitutional

claims or questions of law raised upon a petition for review filed with an appropriate

court of appeals in accordance with this section.” Id. § 106(a)(1)(A)(iii), amending 8

U.S.C. § 1252(a)(2). Because Calilap has raised questions of law, as opposed to factual

disagreements with findings of the IJ or issues relating to discretionary acts, we are

now free to review them.

We thus proceed to the merits. Calilap first argues that the IJ erred in finding

him removable because the government never properly amended the NTA (1) to allege

that he was convicted of a ttempted sexual abuse and (2) to charge him with the

aggravated felony of attempted sexual abuse of a minor. The government asserts that

we lack jurisdiction also over this argument because Calilap did not exhaust his

administrative remedy by raising it before the BIA. But Calilap made this argument

in his notice of appeal, and in so d oing he gave the BIA an adequate opportunity to

address the argument, thereby preserving it for appeal. See, e.g.

, Wu v. Ashcroft

, 393

F.3d 418, 422 & n.4 (3d Cir. 2005).

Calilap’s argument is nonetheless without merit. He poi nts to no regulatory

provision that the IJ’s informal amendment procedure violated. Moreover, a claim that

the informal amendment violated his due process rights would b e frivolous. Calilap

cannot show that he was prejudiced, because he was present when the IJ granted the

government’s request to amend the NTA and he received a continuance to respond to

the attempt charge. See Hasanaj v. Ashcroft

, 385 F.3d 780, 785 (7th Cir. 2004) (withoutNo. 04-1282 Page 4

showing prejudice, alien cannot establish that procedures employed by IJ violated due

process).

Calilap’s sole remaining argument is essentially one of impossibility. He asserts

that he did not complete a substantial step by arriving at the designated meeting place

because, unbeknownst to him, the “minor” was actually a n adult law enforcement

officer.

We have already determined that a convicti on under 720 ILCS 5/12-15(C),

though a misdemeanor, may nonetheless constitute sexual abuse of a minor, which the

INA defines for immigration purposes as an aggravated felony. Guerrero-Perez v. INS

, 242 F.3d 727, 736 (7th Cir. 2001). “Attempt” itself is not defined in the INA, but we have adopted a generic definition that calls for (1) “the intent to commit a crime, and

(2) a substantial step towards its commission.” United State v. Martinez-Garcia

, 268

F.3d 460, 465 (7th Cir. 2001). If the absence of an actual minor is what makes

completion of the crime impossible, there is no defense to a charge of attempted sexual

abuse of a minor under Illinois law. 720 ILCS 5/8-4(b) (“[i]t shall not be a defense to a charge of attempt that because of misapprehension of the circumstances it would have

been impossible for the accused to commit the offense attempted”); People v. Patterson

, 314 Ill. App. 3d 962, 969 (Ill. App. Ct. 2000). Nor is this type of impossibility a defense

under an analogous federal statute, 18 U.S.C. § 2422(b), which criminalizes an attempt

to entice or induce a minor to engage in sexual activity. United States v. Meek

, 366

F.3d 705, 717-18 (9th Cir. 2004) (defendant is liable under § 2422(b) when he believes

he is inducing a minor, even though t he object of his inducement is in fact an adult

federal agent posing as a minor on the internet); United States v. Root

, 296 F.3d 1222,

1227 (11th

Cir. 2002) (an actual minor victim is not required for attempt conviction

under § 2422(b)) ; United S tates v. Farner , 251 F.3d 510, 512-13 (5th Cir. 2001)

(impossibility because “minor” was really adult federal agent posing as a minor on the

internet did n ot relieve defendant of criminal liability); s ee also United States v.

Johnson , 376 F.3d 689, 694 (7th Cir. 2004) (an actual minor victim is not required to

support a conviction for producing child pornography in violation of 18 U.S.C. § 2251).

Calilap has not taken the opportunity to address these cases, which directly apply to

his circumstances. Common sense forbids requiring the government to employ actual

minors to catch those who would use the internet to lure minors into performing sexual

acts.

The petition for review is DENIED.