In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3198

GERARDO CORREA-DIAZ,

Petitioner,

v.

JEFFERSON B. SESSIONS III,

Attorney General of the United States,

Respondent.

____________________

Petition for Review of a Final Administrative Removal Order

of the Department of Homeland Security.

No. A099-397-292

____________________

ARGUED JANUARY 17, 2018 — DECIDED JANUARY 31, 2018

____________________

Before FLAUM, EASTERBROOK, and BARRETT, Circuit Judges.

FLAUM, Circuit Judge. Petitioner, a citizen of Mexico, 

pleaded guilty in 2005 to two counts of Attempted Sexual 

Misconduct with a Minor, in violation of Indiana Code § 35-

42-4-9(a) and (b), respectively. On August 17, 2016, the Department of Homeland Security issued a Final Administrative 

Removal Order based upon the § 35-42-4-9(a) conviction. Petitioner now seeks review. At issue is whether petitioner’s 
2 No. 16-3198

conviction amounts to “sexual abuse of a minor” and therefore constitutes an “aggravated felony” under the Immigration and Nationality Act (“INA”). See 8 U.S.C. 

§ 1101(a)(43)(A). For the reasons that follow, we deny the petition for review.

I. Background

Petitioner Gerardo Correa-Diaz was born in May 1986 and 

is a native and citizen of Mexico. He entered the United States 

as a minor without inspection, admission, or parole at an unknown place, and on an unknown date.

On September 7, 2004, when Correa-Diaz was eighteen 

years old, he was spotted in a car behind a school by a police 

officer on routine patrol. At the time, Correa-Diaz was with 

fourteen-year-old P.S. The police officer observed P.S. “lifting 

her head from the area of [Correa-Diaz’s] driver’s side seat.” 

The officer then saw Correa-Diaz “pulling up and buckling 

his pants” and “an open condom wrapper on the driver’s 

seat.” Correa-Diaz was arrested on September 9, 2004.

Child Protective Services interviewed P.S. on November 1, 

2004. She stated she had known Correa-Diaz for approximately three years. She called Correa-Diaz on September 7 

and made plans to sneak out of her house and meet him. She 

indicated they went to the school, where they “started out 

talking and progressed to kissing and more.” P.S. stated Correa-Diaz pulled down his pants, helped her pull down one leg 

of her pants, and was sitting on top of her and facing her. She 

stated he fondled her breasts and put a condom on his penis. 

She said his penis touched her vagina, but did not say 

whether penetration occurred. She also stated that on two 

prior, separate occasions, he had touched her breasts, 
No. 16-3198 3

“grabbed her hand and put it on his penis,” and touched her 

vagina outside of her clothing. 

Police interviewed Correa-Diaz on November 9, 2004. He

acknowledged that he and P.S. went to a park and listened to 

music, but maintained “nothing else happened.” He also 

claimed that P.S. told him she was “almost 16.”

On January 7, 2005, Indiana prosecutors filed multiple 

charges against Correa-Diaz. In relevant part, they included:

(1) one count of Attempted Sexual Misconduct with a Minor 

(for attempted sexual intercourse)1; and (2) five counts of Sexual Misconduct with a Minor (for completed sexual contact, 

such as fondling, between Correa-Diaz and P.S.).2 3 Petitioner 

was sentenced to two years’ imprisonment on the attempted 

sexual intercourse charge and six months’ imprisonment on 

 

1 In 2005, Indiana Code § 35-42-4-9(a) provided, in relevant part:

(a) 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 sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony.

2 In 2005, Indiana Code § 35-42-4-9(b) provided, in relevant part:

(b) 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 intent to arouse or to satisfy the sexual desires of either the child or the older person, commits sexual misconduct with a minor, a Class D felony.

3 In 2007, the Indiana General Assembly amended Indiana Code § 35-

42-4-9 to include an affirmative defense, colloquially known as the “Romeo and Juliet” exception, for persons not more than four years older than 

a purported victim. See 2007 Ind. Legis. Serv. 216-2007, § 45 (West).
4 No. 16-3198

the sexual contact charge, to run concurrently. Over the objection of the state, the court suspended Correa-Diaz’s sentence. 

Correa-Diaz complied with the order to register as a sex offender.

In 2015, Correa-Diaz was arrested by Lafayette, Indiana 

police and charged with failure to register as a sex offender, 

false informing, and synthetic identity deception. These 

charges were dismissed in February 2016, and Correa-Diaz

pleaded guilty to counterfeiting in violation of Indiana Code 

§ 35-43-5-2(a)(2)(A). He was sentenced to 730 days’ imprisonment (with 550 days suspended and credit for 180 days of

time served), and one year of supervised probation.

In May 2016, immigration authorities interviewed CorreaDiaz and lodged an immigration detainer with Indiana authorities. On July 19, 2016, the Department of Homeland Security (“DHS”) served Correa-Diaz with a Notice of Intent to 

Issue a Final Administrative Removal Order. The Notice

charged Correa-Diaz as removable under 8 U.S.C. 

§ 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43)(A). The aggravated felony was based upon Correa-Diaz’s 2005 conviction for Attempted Sexual Misconduct with P.S.4 On August 

3, 2016, DHS found Correa-Diaz removable as charged and 

ordered him removed to Mexico.

Correa-Diaz timely filed a petition for review and motion 

for a stay of removal on August 17, 2016. We issued a tempo-

 4 Correa-Diaz was not charged as removable for his other 2005 conviction for sexual misconduct with P.S. or his 2016 conviction for counterfeiting. 
No. 16-3198 5

rary stay of removal on November 10, 2016, pending the Supreme Court’s resolution of Esquivel-Quintana v. Sessions, 137 

S. Ct. 1562 (2017). On February 3, 2017, while Esquivel-Quintana was pending, Correa-Diaz filed a motion to vacate his

stay of removal, indicating he “had been detained for more 

than 250 days and no longer wishe[d] to be detained.” We

granted this motion, and Correa-Diaz was removed to Mexico. The Supreme Court decided Esquivel-Quintana on May 30, 

2017.

II. Discussion

We lack jurisdiction “to review an order removing an alien 

who commits an ‘aggravated felony.’” Gaiskov v. Holder, 567 

F.3d 832, 835 (7th Cir. 2009). However, we do have jurisdiction 

“to consider the limited question of whether we have jurisdiction—that is, whether [Correa-Diaz] has been convicted of an 

aggravated felony under § 1101(a)(43)(A).” Id. (quoting Espinoza-Franco v. Ashcroft, 394 F.3d 461, 464 (7th Cir. 2004)). We 

review de novo “the determination that [Correa-Diaz] is removable because he is an aggravated felon.” Id.

The INA defines “aggravated felony” as “murder, rape, or 

sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Congress 

did not further delineate which actions fall under the umbrella of “sexual abuse of a minor.” However, the Attorney

General, acting through the Board of Immigration Appeals 

(“Board” or “BIA”), has defined the term in a manner consistent with 18 U.S.C. § 3509(a)(8), a statute that concerns the 

rights of child victims and child witnesses in federal proceedings. In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 993–96

(B.I.A. 1999); see also Gaiskov, 567 F.3d at 835. That section defines “sexual abuse” to include “the employment, use, per-
6 No. 16-3198

suasion, 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(a)(8).

A. Chevron Deference

In reviewing the BIA’s interpretation of the INA, we accord deference to the agency if the matter involves an ambiguous section of the statute. Velasco-Giron v. Holder, 773 F.3d 

774, 776 (7th Cir. 2014) (“When resolving ambiguities in the 

Immigration and Nationality Act ... the Board has the benefit 

of [Chevron deference], under which the judiciary must respect an agency’s reasonable resolution.” (citing Chevron 

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984))). 

Indeed, we have held on multiple occasions that the 

Board’s interpretation of “sexual abuse of a minor” under 

§ 1101(a)(43)(A) is ambiguous and entitled to deference. See

Velasco-Giron, 773 F.3d at 776 (“We have considered the 

Board’s approach to ‘sexual abuse of a minor’ five times, and 

each time we have held that Rodriguez-Rodriguez takes a reasonable approach to the issue.”) (collecting cases); Gaiskov, 

567 F.3d at 835 (“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.”); Gattem v. Gonzales, 412 

F.3d 758, 763–65 (7th Cir. 2005).

Correa-Diaz argues that Chevron deference is not appropriate for two reasons. First, he cites the Supreme Court’s decision in Christensen v. Harris County for the proposition that 

agency interpretations “such as those in opinion letters—like 
No. 16-3198 7

interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of 

law—do not warrant Chevron-style deference.” Christensen v. 

Harris Cty., 529 U.S. 576, 587 (2000). However, we evaluated 

the same argument in Velasco-Giron, where we noted that 

“Christensen is a precursor of United States v. Mead Corp., 533 

U.S. 218 (2001), which concluded that only regulations and 

administrative adjudications come within Chevron.” 773 F.3d 

at 777. We held that, under this rubric, “Rodriguez-Rodriguez is 

an administrative adjudication with precedential effect; it is 

part of Chevron’s domain.” Id. Thus, Correa-Diaz’s first argument fails.

Correa-Diaz next argues that Esquivel-Quintana called the 

ambiguity of “sexual abuse of a minor” into question. We disagree. In Esquivel-Quintana, the Supreme Court considered 

whether a conviction under California Penal Code § 261.5(c) 

qualified as sexual abuse of a minor under 8 U.S.C. 

§ 1101(a)(43)(A). 137 S. Ct. at 1567. The statute in question 

criminalized consensual sexual intercourse with a person under the age of eighteen if the victim was “more than three 

years younger than the perpetrator.” Id. (quoting Cal. Penal 

Code § 261.5(c)). Both an immigration judge and the BIA concluded that a conviction under the statute qualified as sexual 

abuse of a minor pursuant to 8 U.S.C. § 1101(a)(43)(A). Id. 

On appeal, the Supreme Court reversed. The Court ruled 

that Chevron deference did not apply because § 1101(a)(43)(A), 

“read in context, unambiguously foreclose[d] the Board’s interpretation.” Id. at 1572. Specifically, the Court noted that the 

California statute “focused solely on the age of the participants.” Id. In other words, the statute fell into the category of 

statutory rape laws which “generally provide that an older 
8 No. 16-3198

person may not engage in sexual intercourse with a younger 

person under a specified age, known as the ‘age of consent.’” 

Id. at 1569. Using “normal tools of statutory interpretation”—

including evaluating the dictionary definitions of “sexual 

abuse,” the structure of the statute, and its surrounding provisions—the Court held that for purposes of § 1101(a)(43)(A),

“for a statutory rape offense to qualify as sexual abuse of a 

minor under the INA based solely on the age of the participants, the victim must be younger than 16.” Id. at 1569–70.

Notably, however, the Court declined to rule more broadly 

on the generic federal definition. The Court left “for another 

day whether the generic offense requires a particular age differential between the victim and the perpetrator, and whether 

the generic offense encompasses sexual intercourse involving 

victims over the age of 16 that is abusive because of the nature 

of the relationship between the participants.” Id. at 1572.

Correa-Diaz argues that Esquivel-Quintana “directly overrules this Court’s precedent in Velasco-Giron” and calls into 

question the entire Chevron analysis in the cases leading up to 

it. Not so. Chevron’s “first step” requires Congress to speak on 

the “precise question at issue.” Coyomani-Cielo v. Holder, 758 

F.3d 908, 912 (7th Cir. 2014); see also Encino Motorcars, LLC v. 

Navarro, 136 S. Ct. 2117, 2124–25 (2016) (“At the first step, a 

court must determine whether Congress has ‘directly spoken 

to the precise question at issue.’”(emphasis added) (quoting 

Chevron, 467 U.S. at 842)). Esquivel-Quintana holds that we are 

not to give deference as to one precise question: the definition 

of “minor” under § 1101(a)(43)(A) in the context of statutory 

rape offenses focused solely on the age of the participants. 

The “precise issue” here is different. Correa-Diaz argues

that attempted sexual intercourse between an almost sixteen 
No. 16-3198 9

year-old and an eighteen year-old—as the Indiana Code previously outlawed—does not constitute “sexual abuse.” Indeed, Esquivel-Quintana explicitly reserved this question for 

another day. 137 S. Ct. at 1572 (“We leave for another day 

whether the generic offense requires a particular age differential between the victim and the perpetrator . ... ”). Thus, we 

do not believe Esquivel-Quintana’s limited holding overruled 

all of this Court’s previous decisions deferring to BIA’s interpretation of “sexual abuse of a minor.”

B. Department of Homeland Security Determination

In this case, DHS determined that, because Correa-Diaz's 

offense for Attempted Sexual Misconduct with a Minor constituted sexual abuse of a minor under § 1101(a)(43)(A), he 

was removable as an aggravated felon. To review that determination, we employ a “categorical approach.” Gaiskov, 567 

F.3d at 835. This means we do not look at Correa-Diaz’s individual conduct or the underlying facts. See Mathis v. United 

States, 136 S. Ct. 2243, 2251 (2016) (”How a given defendant 

actually perpetrated the crime ... makes no difference ... .”

(citation omitted)). Rather, “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.’” Gaiskov, 567 F.3d at 835–36.

The categorical approach requires us to “focus on the minimum conduct criminalized by the state statute.” Moncrieffe v. 

Holder, 569 U.S. 184, 191 (2013). Here, the Indiana statute under which Correa-Diaz was convicted prohibited a “person at 

least eighteen (18) years of age” from “perform[ing] or submit[ing] to sexual intercourse or deviate sexual conduct” with 
10 No. 16-3198

“a child at least fourteen (14) years of age but less than sixteen 

(16) years of age.” Ind. Code § 35-42-4-9(a) (2005).5

Because § 35-42-4-9(a) constitutes a statutory rape offense—focused solely on the age of the participants—

§ 1101(a)(43)(A) (as interpreted by Esquivel-Quintana) requires 

the age of the victim to be less than sixteen. That condition is 

clearly satisfied here, since the statute explicitly required the

victim to be less than sixteen.

That leaves whether “perform[ing] or submit[ing] to sexual intercourse or deviate sexual conduct” constitutes “sexual 

abuse.” Because Esquivel-Quintana does not address that issue, and our past precedent recognizes “sexual abuse” as ambiguous, we defer to the Board’s interpretation. That definition requires “[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.” Rodriguez-Rodriguez, 22 I. & N. Dec. at 991 (quoting 18 U.S.C. § 3509(a)(8)). 

We hold that conduct prohibited by § 35-42-4-9(a) falls under this umbrella. When determining whether an offense constitutes sexual abuse, “this court has taken a broad view of 

that classification in the immigration context.” Gaiskov, 567 

F.3d at 836. Indeed, in Gaiskov, we found that § 35-42-4-9(b) 

constituted an aggravated felony under § 1101(a)(43)(A). That 

provision only criminalizes “fondling or touching ... with the

 5 Correa-Diaz’s conviction for attempted sexual misconduct does not 

bar a finding that the conviction constitutes an aggravated felony. “[T]he 

INA explicitly provides that inchoate offenses, such as attempt or conspiracy to commit the offenses identified as aggravated felonies, are themselves aggravated felonies under the statute.” Gaiskov, 567 F.3d at 837.
No. 16-3198 11

intent to arouse.” Id. Given that section (a) criminalizes the 

more aggravated behavior of sexual intercourse, it warrants 

similar treatment.

Moreover, sexual intercourse between a child under sixteen years of age and an eighteen-year-old adult involves the 

same “inherent risk of exploitation, if not coercion” that we 

cited in Gattem. 412 F.3d at 765. As we stated in that case, 

“[m]inors as a group have a less well-developed sense of judgment than adults, and thus are at greater peril of making 

choices that are not in their own best interests.” Id. As a result, 

sexual intercourse “implicates risks which attend sexual conduct generally (e.g., pregnancy, sexual assault, and the contraction of sexually transmitted diseases), risks which a fourteen or fifteen-year-old minor is likely ill-equipped to appreciate or minimize.” Gaiskov, 567 F.3d at 836. Thus, “[a]n adult's 

exploitation of a minor’s naivete or lack of judgment” in this 

area “can reasonably be understood as abusive.” Id.

Correa-Diaz argues the risk of exploitation diminishes “as 

the age of the minor and that of the perpetrator become closer 

and closer.” That may be true at some level, but not under the 

Indiana statute, where the ages of the victim and perpetrator 

must be separated by at least two years6—a significant span 

in the context of adolescent development. Thus, Correa-Diaz’s 

conviction for Attempted Sexual Misconduct with a Minor 

falls well within the bounds of “sexual abuse of a minor” under § 1101(a)(43)(A).

 6 And it is not true in this case, where the victim and the perpetrator

were separated by four years.
12 No. 16-3198

III. Conclusion

For the foregoing reasons, we DENY the petition for review.