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.”No. 04-2102 2
At page 4 of the majority opinion, the text of footnote 4 is withdrawn and replaced with the following new text: Although the criminal complaint against Gattem alleged only that his offense involved a juvenile under the age of 18,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.P OSNER , Circuit Judge , dissenting

. Gat tem was ordered removed from this country on the ground of his having committed an “a g gravated felony,” defined as “murder, rape, or sexual abuse of a m i nor.” 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). His “aggrav ated felony” was his violating an Illinois misdemeanor statute by, according to the char ging document , o

f fering a girl who had not yet reached the age of 18 a pack of cigarettes in e x change 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 solicit ation of a sexual act. ” 720 ILCS 5/11

– 14.1(a). Neither Ga ttem’s age at the time of the offense, n or the girl’s, was indic ated , other than her being under 18 ; nor is there any su ggestion that the girl accepted Gattem’s offer . He was sentenced not to prison, but to 24 months on proba tion. The Immigration and Nationality Act does not define “sex ual abuse of a minor

. ” Casting fa r afield, the Board of Immigration A

p peals 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 e x plicit 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 pr o

tections for child victims and child witness es , such as allo

w ing a child to give testimony via closed

- circuit t el evision 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 pers uade or induce. One can be induced or persuaded wit h out being employed (suggesting prostitution), though successful induc e ment or persuasion would result in

the “use...of a child to engage in...sexually e x plicit conduct.” The previous reported cases all involv ed touching or exposure rather than failed persuasion or i nducement. Espinoza

- Franco v. Ashcroft , 394 F.3d 461, 463 (7th Cir. 2005); Gue

r rero
- Perez v. INS , 242 F.3d 727, 730 (7thNo. 0 4

– 2102 2 Cir. 2001); Mugalli v. Ashcroft , 258 F.3d 52, 53

– 54 (2d Cir. 2001); United St ates v. Zavala

- Sustaita , 214 F.3d 601, 602

– 03 (5th Cir. 2000). My colleagues acknowledge that the la nguage 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 unsuc cessful 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 se e how a state mi sdemeanor becomes translated not only into a felony, but into an “aggravated felony,” for removal purposes. Without more detail concerning Gattem’s crime , I am u nconvinced that the Board made a rational judgment in class ifying it as an “agg

r a vated felony.” The number of unmarried teenage d

girls in this country who have e n gaged 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 inter course. Centers for Disease Control and Prevention, “Youth Risk Behavior Survei llance

— United States 2003,” Morbidity & Mortality Weekly , May 21, 2004, p. 18. Oral sex is even more co m mon; in a study of ninth graders, half again as many were found to have h ad oral as vaginal sex. Bonnie L. Halpern

- Felsher et al., “ Oral Versus Vaginal Sex Among Adolescents: Perce ptions, Attitudes, and Behavior ,” Pedia t rics , Apr

. 2005 , p. 847. Solicit a tion of such girls to engage in sex must be common. That doesn’t make it rig ht; and c

ircumstances of course a l ter 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 u n der age girl or boy for sex to be a serious crime even if the solicitation is unsucces s ful. But we cannot let our imagin a tions roam ; if we could, we could imagine the girl as a prostitute . Based on what little we know, Illinois’s chara c terization of Gattem’s conduct as a misdemeanor undeserving of prison time is rea so n able , rather than being evidence that Illinois does not take sexual offenses seriously

.No. 0 4

– 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 d e pr aved” (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 e i ther to evidence relating to Gattem’s conduct or to a psychological li t erature that mi ght bear on it t hat such a proposal might “cause the victim to have negative thoughts about sexuality and pr oduce psychological injury that may be difficult to overcome.” Carried away by its own rhetoric, the gover n ment describes what Gattem did as “the fo rcing 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 not h ing

to the immigration judge’s opinion . T he Justice D

e partment’s lawyers are not allowed to supply the a gency’s missing r

a tionale in its brief

— nor are we . SEC v. Chenery Corp. , 332 U.S. 194 (1947)

. That has not stopped my colleagues from o

f fering their own rationale: not that th e girl is likely to have suffered any adverse consequences from the solicit a tion 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 se x ual abuse. The analytical v acuum would not matter had the Rodr iguez

- 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 plaus i ble.) The Board doesn’t have to repeat in a new case the principles it has established in previous ones . But Rodr iguez

- Rodriguez had not deemed the def i nition of “sexual abuse of a minor” in 18 U.S.C. § 3509(a)(8) “a definitive interpret a t ion or definition , ” which is how the government a nd my co l leagues 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 i n decently exposing himself to a child , a felony . The details, such as his age and that of theNo. 0 4

– 2102 4
chi ld, are not indicated, but obviously it was not a case of u nsuccessful solicitation , and the length of the sentence and the fact that it was the maximum allowed by the statute si gnaled to the Board the presen ce of aggravating circu mstances. Id

. The contras t with the se

n tence here is stark

(24 months on probation versus five times that amount of time in prison) , and cannot be entirely due to north

- south diffe rences in penological att i tudes

. Guerrero

- Perez v. INS , supra , on which the government also relies, i n volved an act of sexual penetration of a 15

- year
old girl, also a far more serious offense than Ga t tem’s . L ike Gattem, Guerrero

- Perez was convicted only of a misd emeanor . But it was

a Class A misdemeanor ; Gattem’s was a Class B , pu n ishable by a maximum of six months in prison , one
- twentieth of the maximum prison sentence for the crime at issue in Rodr i guez

- Rodriguez

. Guerrero

- Perez had a curious sequel that goes unr emarked by my colleagues. Shortly after it was decided, the Board of Immigration Appeals rul ed In re Crammond , 23 I. & N. Dec. 9 (en banc) , vacated on other grounds, 23 I. & N. Dec. 1 7 9 (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. § 355 9(a)(5); that is, it must be punishable by more than a year in priso n. On the basis of this ruling , Guerrero

- Perez moved this court for reconsider a tion . 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 Cra mmond 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 i n Matter of Crammond, the legal landscape relating to this question has si gnif i cantly 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, twoNo. 0 4

– 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. 20 01); United States v. Marin

Navarette, 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 ca

n be an ‘ aggravated felony’... if the offense otherwise conforms to the federal definition [of that term] f

ound in 8 U.S.C. § 1101(a)(43),” thus si g naling its possible agreement with the result reached by its three sister circuits. United States v. Robles

- Rod riguez, 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 o f

fenses. In light of these developments, we have reconsi dered 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 t he 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 su ccess. Yet the result is topsy

- turvy. The determination whether to require that “sexual abuse of a minor” be counted as an “a g gravated felony” for removal purposes only if the particular offense satisfies the federal (which is also the tr aditional) definition of a fe l ony is not a question of law to be decided by appellate courts ; it i s a discretionary judgment for the Board to make. For remember that the immigr a tion statute is silent on the meaning of “sexual abuse of a minor”; that was left for the Board to su p ply , Chevron

- style, by the application of its knowledge of imm i grat i on 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); Gue

r rero
Perez v. INS , supra , 242 F.3d at 730; Uritsky v. Gonz a les , 399 F.3d 728, 731

– 32 (6th Cir. 2005); Mugalli v. Ashcroft , supra ,No. 0 4

– 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 v ictim and the structure of Illinois law

. The statute u

nder which Gattem was convicted makes no distinctions based on age. Essentially it just forbids solicitation for pro s titution. A separate statute pena l izes 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 I llinois so far as solicitation or sexual abuse (including aggr

avated sexual abuse) of a minor is concerned. Illinois has a separate crime of criminal sexual assault i n volving family members

or abuse

of a position of power , but that is not rel evant 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 char ging document su g gests a major confusion. I suppose th e Board could adopt a uniform federal rule making the age of consent 18 for pu r poses 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

— bo th crimes that

r e quire an ac

tual sex act, 720 ILCS 5/12

– 15(c ), 16(d )

— that the defendant “re asonably believed the person to be 17 years of age or over.” 720 ILCS 5/12

– 17(b) . Wh at we have here is not a sex act but merely a solicitation , and as far as appears

Ga t tem had no idea he was soliciting a minor. A reasonable mi s take as to the solicited child’s age can operate as a defense even

to i ndecent solicitation of a child , because the statute r e quires that the offender “knowingly solicits a child or one whom he or she believes to b e a child.” 720 ILCS 5/11

– 6(a). C haracte r-No. 0 4

– 2102 7 izing his conduct as “sexual abuse of a minor” is highly que stionable. We should remand the case to the Board for a reasoned judgment.