1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 24, 2005

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 04-2102

 

SRIVENUGOPALA GATTEM, )

) On Petition for Review

Petitioner, ) of an Order of the Board

) of Immigration Appeals

v. )

) No. A78 842 565

ALBERTO R. GONZALES, )

) 

Respondent. )

O R D E R

On its own motion, the Court hereby amends the slip opinion of June 20,

2005, as follows:

At page 4 of the majority opinion, line 6, “under the age of 17” is inserted

after the word “juvenile” and before the period.

At page 4 of the majority opinion, lines 6-7, “A.R. 35.” is deleted and replaced

with “A.R. 34, 50.”
2 No. 04-2102

At page 4 of the majority opinion, the text of footnote 4 is withdrawn and

replaced with the following new text:

Although the criminal complaint against Gattem alleged only that his

offense involved a juvenile under the age of 18, there is no dispute at

this juncture that the victim was actually under the age of 17. The

amendment to the notice of removability issued to Gattem alleged that

“[y]our [Gattem’s] conviction for Solicitation of a Sexual Act in

violation of 720, section 5/11-14.1(a) of the Illinois Revised Statutes

involved a juvenile under the age of 17 . . . by the name of [Jane Doe].” 

A.R. 211. In proceedings before the IJ, Gattem formally admitted that

allegation through his counsel. A.R. 50. The IJ’s decision thus

accurately states that Gattem “admits that the crime for which he was

convicted, solicitation of a sexual act[,] involved a juvenile under 17

years of age . . . .” A.R. 34. That the age of consent in Illinois is 17, as

our colleague points out, see post at 6, may explain why the parties

and the IJ went beyond the language of the criminal complaint to

establish that the victim was under 17. We acknowledge that we can

find no evidence in the record independently confirming that the

juvenile was, in fact, below the age of 17. Count 3 of the complaint

filed against Gattem in state court, which is the sole source of details

as to the nature of his offense, alleged only that the victim was under

the age of 18. A.R. 96. Count 2 of the complaint, which charged that

Gattem had contributed to the delinquency of a minor, alleged that the

victim was under 17 years of age, A.R. 95, but Gattem evidently was

not convicted on that count, see A.R. 94. In any case, Gattem at no

point has disputed that his offense involved a minor.

At page 11 of the majority opinion, second full paragraph, line 8, “18.” is

deleted and replaced with “17, see A.R. 34, 50, 211 and n.4, supra.”

Finally, on his own motion, Judge Posner withdraws his dissent of 

June 20, 2005 and substitutes the attached revised dissent in its stead.

SO ORDERED.
POSNER, Circuit Judge, dissenting. Gattem was ordered 

removed from this country on the ground of his having committed an “aggravated felony,” defined as “murder, rape, or 

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

1227(a)(2)(A)(iii). His “aggravated felony” was his violating 

an Illinois misdemeanor statute by, according to the charging document, offering a girl who had not yet reached the age 

of 18 a pack of cigarettes in exchange for her performing oral 

sex on him. The Illinois statute provides that “any person 

who offers a person not his or her spouse...anything of value 

to perform any [sexual] act...commits the offense of solicitation of a sexual act.” 720 ILCS 5/11–14.1(a). Neither Gattem’s age at the time of the offense, nor the girl’s, was indicated, other than her being under 18; nor is there any suggestion that the girl accepted Gattem’s offer. He was sentenced not to prison, but to 24 months on probation.

The Immigration and Nationality Act does not define

“sexual abuse of a minor.” Casting far afield, the Board of 

Immigration Appeals in In re Rodriguez-Rodriguez, 22 I. & 

N. Dec. 991 (BIA 1999), found a statute that defines the term

as including “the employment, use, persuasion, inducement, 

or coercion of a child to engage in...sexually explicit conduct.” 

18 U.S.C. § 3509(a)(8). I say far afield because it is not a 

statute that criminalizes sexual abuse. Rather, it provides 

procedural protections for child victims and child witnesses, 

such as allowing a child to give testimony via closed-circuit

television rather than in person if the child is alleged to be a 

victim of sexual abuse. 18 U.S.C. § 3509(b)(1).

Applying the statute to this case is doubly odd because it 

is unclear whether “persuasion” or “inducement” includes

unsuccessful efforts to persuade or induce. One can be induced or persuaded without being employed (suggesting

prostitution), though successful inducement or persuasion 

would result in the “use...of a child to engage in...sexually 

explicit conduct.” The previous reported cases all involved 

touching or exposure rather than failed persuasion or inducement. Espinoza-Franco v. Ashcroft, 394 F.3d 461, 463 

(7th Cir. 2005); Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th 
No. 04–2102 2

Cir. 2001); Mugalli v. Ashcroft, 258 F.3d 52, 53–54 (2d Cir. 

2001); United States v. Zavala-Sustaita, 214 F.3d 601, 602–

03 (5th Cir. 2000). My colleagues acknowledge that the language of the statute might be “construed to mean that the 

child must actually have been persuaded, induced, or enticed 

to participate in a sexual act,” but they add that “logic does 

not foreclose the Board from taking note of an unsuccessful 

effort to lure a child into sexual activity.” True—but there is 

no indication that the Board has noticed, let alone “taken 

note,” of the difference. Nor is it easy to see how a state misdemeanor becomes translated not only into a felony, but into 

an “aggravated felony,” for removal purposes.

Without more detail concerning Gattem’s crime, I am unconvinced that the Board made a rational judgment in classifying it as an “aggravated felony.” The number of unmarried 

teenaged girls in this country who have engaged in sexual 

intercourse, let alone in oral sex, is in the millions; for of all 

girls in 11th grade (few of whom would have turned 18), 53.1 

percent have had sexual intercourse. Centers for Disease

Control and Prevention, “Youth Risk Behavior Surveillance—United States 2003,” Morbidity & Mortality Weekly, 

May 21, 2004, p. 18. Oral sex is even more common; in a 

study of ninth graders, half again as many were found to 

have had oral as vaginal sex. Bonnie L. Halpern-Felsher et 

al., “Oral Versus Vaginal Sex Among Adolescents: Perceptions, Attitudes, and Behavior,” Pediatrics, Apr. 2005, p. 847. 

Solicitation of such girls to engage in sex must be common.

That doesn’t make it right; and circumstances of course alter 

cases: the younger the girl, the older the man, and the more 

insistent or prurient the means of inducement employed, the 

likelier is the solicitation of an underage girl or boy for sex to 

be a serious crime even if the solicitation is unsuccessful. But 

we cannot let our imaginations roam; if we could, we could 

imagine the girl as a prostitute. Based on what little we 

know, Illinois’s characterization of Gattem’s conduct as a 

misdemeanor undeserving of prison time is reasonable, 

rather than being evidence that Illinois does not take sexual 

offenses seriously.
No. 04–2102 3

No basis has been shown for reclassifying Gattem’s offense as an aggravated felony. The government’s brief describes his proposal to the girl as “disgusting and depraved” 

(a dubious characterization if she was one day short of her 

eighteenth birthday, as she may have been) and, continuing 

in this vein, speculates without reference either to evidence 

relating to Gattem’s conduct or to a psychological literature

that might bear on it that such a proposal might “cause the 

victim to have negative thoughts about sexuality and produce psychological injury that may be difficult to overcome.” 

Carried away by its own rhetoric, the government describes 

what Gattem did as “the forcing of unwanted sexual activity” 

upon the girl, even though there was no sexual act; words 

are not acts.

The immigration judge offered no reason at all for his

ruling beyond citation of Rodriguez-Rodriguez. And the

Board added nothing to the immigration judge’s opinion. The 

Justice Department’s lawyers are not allowed to supply the 

agency’s missing rationale in its brief—nor are we. SEC v. 

Chenery Corp., 332 U.S. 194 (1947). That has not stopped my 

colleagues from offering their own rationale: not that the girl 

is likely to have suffered any adverse consequences from the 

solicitation that she turned down, but that she might have 

suffered such consequences had she acceded. Thus sexual

abuse of a minor is redefined as attempted sexual abuse.

The analytical vacuum would not matter had the Rodriguez-Rodriguez decision provided a defensible rationale for 

defining conduct such as Gattem’s as an aggravated felony of 

sexual abuse of a minor. (It would only have to be minimally 

plausible.) The Board doesn’t have to repeat in a new case 

the principles it has established in previous ones. But Rodriguez-Rodriguez had not deemed the definition of “sexual

abuse of a minor” in 18 U.S.C. § 3509(a)(8) “a definitive interpretation or definition,” which is how the government and 

my colleagues treat it, but merely “a guide.” 22 I. & N. Dec. 

at 996. The alien in that case had been sentenced by a Texas 

court to 10 years in prison for indecently exposing himself to 

a child, a felony. The details, such as his age and that of the 
No. 04–2102 4

child, are not indicated, but obviously it was not a case of unsuccessful solicitation, and the length of the sentence and the 

fact that it was the maximum allowed by the statute signaled to the Board the presence of aggravating circumstances. Id. The contrast with the sentence here is stark (24 

months on probation versus five times that amount of time 

in prison), and cannot be entirely due to north-south differences in penological attitudes.

Guerrero-Perez v. INS, supra, on which the government 

also relies, involved an act of sexual penetration of a 15-yearold girl, also a far more serious offense than Gattem’s. Like 

Gattem, Guerrero-Perez was convicted only of a misdemeanor. But it was a Class A misdemeanor; Gattem’s was a 

Class B, punishable by a maximum of six months in prison, 

one-twentieth of the maximum prison sentence for the crime 

at issue in Rodriguez-Rodriguez.

Guerrero-Perez had a curious sequel that goes unremarked by my colleagues. Shortly after it was decided, the 

Board of Immigration Appeals ruled In re Crammond, 23 I. 

& N. Dec. 9 (en banc), vacated on other grounds, 23 I. & N. 

Dec. 179 (2001) (en banc), that for “sexual abuse of a minor” 

to count as an “aggravated felony” for purposes of removal, it 

must be a felony as defined in 18 U.S.C. § 3559(a)(5); that is,

it must be punishable by more than a year in prison. On the 

basis of this ruling, Guerrero-Perez moved this court for reconsideration. We turned him down on the ground that the 

Board was wrong in thinking that sexual abuse of a minor 

had to be the equivalent of a federal felony. 256 F.3d 546 

(7th Cir. 2001). The Board (which had vacated the Crammond decision on an unrelated ground) then caved, stating, 

in In re Small, 23 I. & N. Dec. 448, 450 (2002) (en banc):

Since our initial decision in Matter of Crammond, 

the legal landscape relating to this question has significantly changed. After considering the issue anew 

in light of our opinion, the Seventh Circuit declined 

to modify its position and denied a petition for rehearing with a further opinion. Guerrero-Perez v.

INS, 256 F.3d 546 (7th Cir. 2001). In addition, two 
No. 04–2102 5

other circuits, the Sixth and the Eleventh, employed 

similar reasoning in aligning themselves with the 

Seventh Circuit. United States v. Gonzales-Vela, 276 

F.3d 763 (6th Cir. 2001); United States v. MarinNavarette, 244 F.3d 1284 (11th Cir.), cert. denied, 

122 S. Ct. 317 (2001). Most recently, the Ninth Circuit, citing United States v. Marin-Navarette, supra, 

determined that “an offense classified by state law 

as a misdemeanor can be an ‘aggravated felony’...if 

the offense otherwise conforms to the federal definition [of that term] found in 8 U.S.C. § 1101(a)(43),”

thus signaling its possible agreement with the result 

reached by its three sister circuits. United States v. 

Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002). 

Moreover, to our knowledge no federal court has

concluded that section 101(a)(43)(A) of the Act pertains only to felony offenses.

 In light of these developments, we have reconsidered the issue and conclude that the prevailing appellate court view should be adopted for the reasons 

set forth in the above-cited opinions of the Sixth,

Seventh, and Eleventh Circuits. We consider it appropriate at this juncture to accede to the weight of 

appellate court authority in the interest of uniform 

application of the immigration laws.

The Board cannot be criticized for acquiescing in these 

decisions rather than bucking them with little chance of success. Yet the result is topsy-turvy. The determination

whether to require that “sexual abuse of a minor” be counted 

as an “aggravated felony” for removal purposes only if the 

particular offense satisfies the federal (which is also the traditional) definition of a felony is not a question of law to be 

decided by appellate courts; it is a discretionary judgment for 

the Board to make. For remember that the immigration 

statute is silent on the meaning of “sexual abuse of a minor”;

that was left for the Board to supply, Chevron-style, by the 

application of its knowledge of immigration law and policy. 

INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999); INS v. 

Cardoza-Fonseca, 480 U.S. 421, 446–49 (1987); GuerreroPerez v. INS, supra, 242 F.3d at 730; Uritsky v. Gonzales, 399 

F.3d 728, 731–32 (6th Cir. 2005); Mugalli v. Ashcroft, supra, 
No. 04–2102 6

258 F.3d at 55–56; see Mei v. Ashcroft, 393 F.3d 737, 739 

(7th Cir. 2004); but see Singh v. Ashcroft, 383 F.3d 144, 150–

52 (3d Cir. 2004).

There is a further point unremarked by my colleagues, 

the Board, and the Justice Department; it involves the age of 

the victim and the structure of Illinois law. The statute under which Gattem was convicted makes no distinctions based 

on age. Essentially it just forbids solicitation for prostitution. 

A separate statute penalizes solicitation of minors. 720 ILCS 

5/11–6. We do not know why Gattem was not charged under 

that statute (maybe he was, and the charge dropped), but 

one possibility is that the girl was 17; that of course would be 

consistent with her being under 18, as the charging document alleged. Seventeen, not 18, is the age of majority in Illinois so far as solicitation or sexual abuse (including aggravated sexual abuse) of a minor is concerned. Illinois has a 

separate crime of criminal sexual assault involving family 

members or abuse of a position of power, but that is not relevant to this case.

The immigration judge said that Gattem’s victim was

under 17, but on what basis we do not know. Gattem has not 

contested the point, but the reference to age 18 in the charging document suggests a major confusion. I suppose the 

Board could adopt a uniform federal rule making the age of 

consent 18 for purposes of defining sexual abuse of a minor, 

but there is no suggestion that it has done so.

At all events, it is a defense to criminal sexual abuse and 

aggravated sexual abuse—both crimes that require an actual 

sex act, 720 ILCS 5/12–15(c), 16(d)—that the defendant “reasonably believed the person to be 17 years of age or over.”

720 ILCS 5/12–17(b). What we have here is not a sex act but 

merely a solicitation, and as far as appears Gattem had no 

idea he was soliciting a minor. A reasonable mistake as to 

the solicited child’s age can operate as a defense even to indecent solicitation of a child, because the statute requires 

that the offender “knowingly solicits a child or one whom he

or she believes to be a child.” 720 ILCS 5/11–6(a). Character-
No. 04–2102 7

izing his conduct as “sexual abuse of a minor” is highly questionable.

We should remand the case to the Board for a reasoned 

judgment.