United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 18, 2006

Decided April 26, 2006

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-3705

VINODKUMAR PATEL,

Petitioner,

v.

ALBERTO R. GONZALES, 

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

No. A38-196-218

O R D E R

An IJ concluded that Vinodkumar Patel had been convicted in Illinois of

predatory sexual assault of a child and is therefore subject to removal for

committing sexual abuse of a minor, an aggravated felony under the Immigration

and Nationality Act. The BIA affirmed. Patel argues in this petition for review

that the BIA erred by failing to address his arguments that he is not subject to

removal under the INA. He also argues that the government did not meet its

burden of proving the conviction by clear and convincing evidence. We deny the

petition for review.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-3705 Page 2

I.

Patel, a native and citizen of India, entered the United States as an

immigrant in 1984. In September 2004 the Department of Homeland Security

served Patel with a Notice to Appear charging that he is subject to removal based

on a conviction for an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii). DHS

alleged that Patel was convicted in Illinois for predatory criminal sexual assault of a

child, 720 ILCS 5/12-14.1(a)(1), and that the conviction constitutes sexual abuse of a

minor under the INA. Sexual abuse of a minor is an aggravated felony, see 8 U.S.C.

§ 1101(a)(43)(A), and as such a removable offense. DHS subsequently amended the

Notice to Appear to allege that Patel also is subject to removal because his offense

involved domestic violence, stalking, or child abuse, see 8 U.S.C. § 1227(a)(2)(E)(i),

and constitutes a crime of violence, id. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F).

To prove Patel’s conviction the government introduced a copy of a “Certified

Statement of Conviction/Disposition” showing that he was indicted in November

2001 on two counts of “Predatory Criminal Sexual,” 720 ILCS 5/12-14.1(a)(1); two

counts of “Crim Sex Assault/Families,” 720 ILCS 5/12-13(a)(3); four counts of “Agg

Crim Sex Abuse/Vic <1,” 720 ILCS 5/12-16(c)(1)(I); and four counts of “Agg Crim Sex

Abuse/Family,” 720 ILCS 5/12-16(b). The Certified Statement of

Conviction/Disposition establishes that nine of the counts were later dismissed. 

The government also introduced a certified copy of an “Order of Sentence and

Commitment” from July 2003 showing that Patel had been found guilty of “Pred

Criminal Sexual” in violation of 720 ILCS 5/12-14.1(a)(1) and sentenced to eight

years incarceration. The Order of Sentence and Commitment incorporates an

“Official Statement of Facts” which recounts that Patel sexually assaulted his minor

daughter repeatedly between December 2000 and October 2001.

At his removal hearing Patel through counsel denied that he is removable on

any of the three grounds alleged in the amended Notice to Appear. However, when

questioned by the government, Patel admitted that he was “convicted on July 2,

2003 of predatory criminal sexual assault” committed against his daughter. The IJ

concluded that Patel was convicted under 720 ILCS 5/12-14.1(a)(1), and that the

statutory elements of this offense establish that Patel had been convicted of sexual

abuse of a minor under the INA and thus, under 8 U.S.C. § 1101(a)(43)(A), an

aggravated felony. The IJ also concluded that Patel’s conviction was a crime of

violence under 8 U.S.C. § 1101(a)(43)(F) and child abuse under 8 U.S.C.

§ 1227(a)(2)(E), and therefore Patel is removable on all three grounds alleged in the

amended Notice To Appear. Patel’s attorney argued that it was improper for the IJ

to use Patel’s testimony to determine what subsection of the Illinois statute Patel

was convicted under. But the IJ explained that the certified copy of the Order of

Sentence and Removal unambiguously showed that Patel was convicted under 720

ILCS 5/12-14.1(a)(1) and so it was not necessary to rely on Patel’s testimony.
No. 05-3705 Page 3

1

In an apparent typographical error, the Board referred to the statute of conviction as 720

ILCS 5/12-14(a). Patel does not argue this mistake as a point of error in his brief.

Patel appealed to the BIA. He argued that the IJ erred because the

conviction records introduced by the government do not conclusively establish the

Illinois statute under which he was convicted. Patel contended that the Certified

Statement of Conviction “did not indicate under what provision of the statute” he

was convicted, that “[t]he Sentencing Order is not one of the documents which may

be used to prove” a conviction, and that his own testimony “is not a method of

establishing removability under Shepard v. U.S.,” 544 U.S. 13 (2005). Patel also

argued that, even if the government met its burden of proof, the particular

conviction is not a removable offense under the INA. In affirming the IJ’s decision,

the BIA held that the Order of Sentence and Commitment was admissible to prove

the existence of Patel’s conviction and upheld the factual determination that Patel

was convicted of predatory criminal sexual assault of a child under 720 ILCS 5/12-

14.1(a)(1).1 The BIA also held that any violation under 720 ILCS 5/12-14.1(a)(1)

categorically constitutes sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A)

and is therefore an aggravated felony. 

II.

In his petition for review, Patel argues that the BIA failed to address his

arguments that he was not subject to removal under the INA, and that, regardless,

the government did not introduce sufficient evidence to prove up the conviction. 

The BIA found that Patel has a conviction for an aggravated felony, and the INA

generally precludes us from reviewing removal orders entered against aggravated

felons. See 8 U.S.C. § 1252(a)(2)(C); Hamid v. Gonzales, 417 F.3d 642, 645 (7th Cir.

2005). But the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 310-11, confers

explicit jurisdiction on this court to review “constitutional questions and questions

of law” raised in a petition for review even if the petitioner is an aggravated felon. 

See Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 765 (7th Cir. 2005). Because

Patel is an alien with lawful permanent resident status, DHS can remove him only

if it establishes by clear and convincing evidence that he is removable. See 8 U.S.C.

§ 1229a(c)(3)(A); Olowo v. Ashcroft, 368 F.3d 692, 699 (7th Cir. 2004). We will

uphold the BIA’s determination that Patel is removable as long as it is based on

“reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(c)(3)(A); Olowo,

368 F.3d at 699.

Patel argues that the BIA erred as a matter of law because it failed to

address his argument that a conviction under 720 ILCS 5/12-14.1(a)(1) does not

subject him to removal under the INA. His argument has no merit. The BIA did

not ignore his argument; it held that a conviction under 720 ILCS 5/12-14.1(a)(1)
No. 05-3705 Page 4

qualifies categorically as one for “sexual abuse of a minor.” As such, the conviction

is also an aggravated felony, see 8 U.S.C. § 1101(a)(43)(A), and Patel is subject to

removal.

To the extent Patel additionally argues that the BIA erred in concluding that

his conviction is one for sexual abuse of a minor, he is again wrong. The INA does

not define “sexual abuse of a minor,” so it falls to the BIA to give the term meaning

on a case-by-case basis, Gattem v. Gonzales, 412 F.3d 758,763 (7th Cir. 2005), and

we owe the BIA deference in its interpretation so long as it is consistent with

Congress’s intent, id. The BIA has previously held that “sexual abuse of a minor”

should be interpreted using the plain meaning of the words. Matter of RodriguezRodriguez, 22 I&N Dec. 991, 993 (BIA 1999). The term includes “a broad range of

maltreatment of a sexual nature” including nonphysical abuse. See id. at 996

(holding that conviction for exposing anus or genitals to child with intent to arouse

or gratify sexual desire of any person constitutes sexual abuse of a minor). The

Illinois statute provides in relevant part: “The accused commits predatory criminal

sexual assault of a child if the accused was 17 years of age or over and commits an

act of sexual penetration with a victim who was under 13 years of age when the act

was committed.” 720 ILCS 5/12-14.1(a)(1). Because the statutory elements require

an act of sexual penetration upon a victim under the age of thirteen, it was not

unreasonable for the BIA to hold that any conviction under the Illinois statute

would “qualify categorically as ‘sexual abuse of a minor’” because any violation of

the statute would fall within the “ordinary, contemporary, and common meaning” of

that term. See Gattem v. Gonzales, 412 F.3d 758, 764 (7th Cir. 2005); see also Afridi

v. Gonzales, No. 04-76600, 2006 WL 851758, at *2-3 (9th Cir. Apr. 4, 2006) (holding

that conviction for engaging in sexual intercourse with minor who is more than

three years younger than perpetrator is sexual abuse of a minor); Santos v.

Gonzales, 436 F.3d 323, 324-25 (2d Cir. 2006) (holding that sexual contact with

victim under sixteen is sexual abuse of a minor); Taylor v. United States, 396 F.3d

1322, 1329 (11th Cir. 2005) (holding that conviction for soliciting a child under

sixteen to engage in sexual contact was conviction for sexual abuse of a minor).

Patel also appears to argue that the BIA erred by failing to address whether

his conviction meets the definitions of a crime of violence or a crime of domestic

violence under the INA. This contention is irrelevant. The BIA held that Patel is

removable because he has a conviction for an aggravated felony. It was

unnecessary for the BIA to rule on the IJ’s alternative grounds for removal. See

Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395 (2d Cir. 2005) (noting that

petitions for review should be denied where the BIA or IJ relied on alternative

grounds, one of which is sustainable).

Finally, Patel devotes the majority of his brief to the argument that the

documents the government introduced lack “sufficient indicia of reliability” and
No. 05-3705 Page 5

thus are inadequate to prove by clear and convincing evidence the section of Illinois

law under which he was convicted. He contends that the Certified Statement of

Conviction/Disposition shows only that nine of the twelve counts were dismissed

and nowhere states that he was convicted on the remaining counts. The Order of

Sentence and Commitment is no better, he argues, because it “is only somewhat

legible,” it “uses numerous abbreviations,” it does not say “anything about the

factual allegations” underlying the conviction, and “is simply a carbon copy form,

completed by the deputy clerk, and . . . is also ambiguous.”

The BIA correctly determined that Patel’s conviction was adequately proved. 

The INA provides that any of the following documents or records constitutes proof

of a criminal conviction:

1) An official record of judgment and conviction.

2) An official record of plea, verdict, and sentence.

3) A docket entry from court records that indicates the

existence of the conviction.

4) Official minutes of a court proceeding or a transcript of a

court hearing in which the court takes notice of the existence of the

conviction.

5) An abstract of a record of conviction prepared by the court in

which the conviction was entered, or by a State official associated

with the State’s repository of criminal justice records, that indicates

the charge or section of law violated, the disposition of the case, the

existence and date of conviction, and the sentence.

6) 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.

7) Any document or record attesting to the conviction that is

maintained by an official of a State or Federal penal institution, which

is the basis for that institution’s authority to assume custody of the

individual named in the record.

8 U.S.C. § 1229a(c)(3)(B); see also Francis v. Gonzales, No. 04-2457-AG, 2006 WL

768549, at *8 (2d Cir. Mar. 27, 2006) (holding that Congress created a statutory list

in § 1229a(c)(3)(B) of documents that constitute conclusive proof of conviction);

Fequiere v. Ashcroft, 279 F.3d 1325, 1327 (11th Cir. 2002) (noting that forms of

proof listed in § 1229a(c)(3)(B) are conclusive but not exclusive means of

establishing conviction). The Certified Statement of Conviction/Disposition itself is

insufficient to establish Patel’s conviction because it does not disclose the

disposition of the three counts that are not shown dismissed. But Patel’s argument

that the Order of Sentence and Commitment is insufficient strains credulity. The
No. 05-3705 Page 6

Order of Sentence and Commitment is a record of judgment and conviction signed

by the sentencing judge and plainly states that Patel was adjudged guilty of

committing “Pred Criminal Sexual” in violation of 720 ILCS 5/12-14.1(a)(1) and

sentenced to eight years’ incarceration. This document alone is sufficient under 8

U.S.C. § 1229a(c)(3)(B)(i) to prove Patel’s conviction. 

Patel’s reliance on Dashto v. INS, 59 F.3d 697 (7th Cir. 1995), for the

proposition that a ministerial form prepared by a courtroom clerk is insufficient to

prove a conviction is mistaken. In Dashto the petitioner was challenging the IJ’s

use of a conviction record to deny discretionary relief on the ground that the robbery

he was convicted of involved the use of a firearm; the petitioner was not arguing

that the conviction record was not enough to prove the underlying conviction. 

Dashto, 59 F.3d at 701-02. Patel’s reliance on Shepard v. United States, 544 U.S. 13

(2005), and Taylor v. United States, 495 U.S. 575 (1990), is likewise mistaken. Both

cases discuss what evidence, other than a judgment of conviction, can be used to

prove a conviction for the purposes of enhancing a sentence. While the comparison

might be appropriate in situations where the IJ does not have a judgment of

conviction before him, here the IJ had a judgment of conviction, and that was all

DHS needed to prove up Patel’s conviction. See 8 U.S.C. § 1229a(c)(3)(B)(I).

Accordingly, we DENY the petition for review.