Hernandez-Alvarez, I v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1245
ISMAEL HERNANDEZ-ALVAREZ,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A43 789 540
____________
ARGUED OCTOBER 19, 2005—DECIDED DECEMBER 28, 2005
____________
Before MANION, ROVNER, and WOOD, Circuit Judges.
MANION, Circuit Judge. Mexican citizen Ismael Hernan-
dez-Alvarez became a lawful permanent resident in 1992.
But in 2002 he was convicted in Illinois of indecent solic-
itation of a child, 720 ILCS 5/11-6(a) (2000), and conse-
quently the Department of Homeland Security initiated
removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii)
(2000), which requires expulsion of an alien convicted of
an “aggravated felony.” The Immigration and Nationality
Act defines “aggravated felony” to include “sexual abuse of
a minor,” 8 U.S.C. § 1101(a)(43)(A) (2000), as well as at-
tempts to commit that offense, id. § 1101(a)(43)(U) (2000),
2 No. 04-1245
and the government argued that indecent solicitation of a
child falls within both subsections. The Immigration Judge
(“IJ”) and the Board of Immigration Appeals (“BIA”)
concluded that Hernandez’s conviction for solicitation
constituted an attempt to commit sexual abuse of a minor.
Although Hernandez’s crime did not involve a minor but
rather an adult undercover investigator, we agree that this
fact did not prevent the BIA from categorizing his crime
as an aggravated felony under the INA. Accordingly,
we deny the petition for review.
I.
In January 2002, Hernandez entered an Internet chat-room
and conversed with “Katie,” whom he believed to be a 15-
year-old female from Waukegan, Illinois. “Katie” was
actually an adult undercover investigator. Hernandez made
plans to meet “Katie” for sex, but he was arrested the next
morning en route to the address “Katie” supplied.
Hernandez, who was 20 at the time, admitted that he
believed “Katie” was only 15. In April 2002, Hernandez was
convicted of indecent solicitation of a child under 720 ILCS
5/11-6(a), which provides:
A person of the age of 17 years and upwards commits
the offense of indecent solicitation of a child if the
person, with the intent that the offense of aggravated
criminal sexual assault, criminal sexual assault, preda-
tory criminal sexual assault of a child, or aggravated
criminal sexual abuse be committed, knowingly solic-
its a child or one whom he or she believes to be a
child to perform an act of sexual penetration or sexual
conduct as defined in Section 12-12 of this Code.
720 ILCS 5/11-6(a). Hernandez was accused of arranging
the rendezvous to engage in aggravated criminal sexual
No. 04-1245 3
abuse, a class 3 felony. He was sentenced to 30 months’
probation and six months’ periodic imprisonment, which
was stayed on the condition that he comply with the
terms of his probation. He was also required to register as
a sex offender and undergo sex-offender testing and coun-
seling.
As a result of this conviction, DHS initiated removal
proceedings. Initially, Hernandez was charged as being
removable on two independent grounds: under 8 U.S.C.
§ 1227(a)(2)(A)(iii) on the theory that indecent solicitation of
a child constitutes “sexual abuse of a minor” and thus is an
aggravated felony, see 8 U.S.C. § 1101(a)(43)(A) (defining
“aggravated felony” to include “sexual abuse of a minor”);
and, alternatively, under § 1227(a)(2)(E)(i) on the theory that
the solicitation offense constitutes “child abuse.” Later DHS
added a third ground for removability, which, like the first
asserted ground, arises under § 1227(a)(2)(A)(iii): that
Hernandez’s offense, if not actually sexual abuse of a minor,
was at least an attempt to commit that offense and thus still
an aggravated felony, see 8 U.S.C. § 1101(a)(43)(U) (defining
“aggravated felony” to include an attempt to commit any
substantive offense listed in § 1101(a)(43)).
At his removal hearing, Hernandez argued that his
state conviction did not constitute either actual or attempted
“sexual abuse of a minor” within the meaning of
§ 1101(a)(43), or child abuse under § 1227(a)(2)(E)(i). The
IJ reasoned that, whether or not Hernandez “was con-
victed of ‘sexual abuse of a minor’ or ‘child abuse,’ ” he
intended to engage in sexual abuse of a minor and took a
substantial step towards committing that criminal act,
and thus “his conviction clearly qualifies as an attempt
to commit sexual abuse of a minor” under § 1101(a)(43)(U).
The BIA, in a one-judge order, upheld the IJ’s decision.
4 No. 04-1245
II.
In this court Hernandez argues that his solicitation
conviction does not qualify as either “sexual abuse of a
minor” or as an “attempt” to commit sexual abuse of a
minor because the person solicited “was in fact an adult
undercover investigator” rather than a child. Before ad-
dressing this contention, we must first ensure that we have
jurisdiction over this petition.
The government suggests that we lack jurisdiction to
review the order of removal because, the government
maintains, Hernandez is an aggravated felon as defined in
§ 1101(a)(43)(U). See 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)
(A)(iii). At the same time, the government seems to ac-
knowledge that this court has always had jurisdiction to
review whether a conviction which serves as the basis
for removal under § 1227(a)(2)(A)(iii) actually constitutes an
aggravated felony. The enactment of the REAL ID Act of
2005, Pub.L. No. 109-13, 119 Stat. 231, 310-311 (2005),
conferred explicit jurisdiction on this court to consider
constitutional claims and questions of law raised in prop-
er petitions for review. 8 U.S.C. § 1252(a)(2)(D) (2000 &
Supp. 2005); Ramos v. Gonzales, 414 F.3d 800, 802 (7th Cir.
2005). But even before the REAL ID Act we had jurisdic-
tion to determine whether an underlying conviction qual-
ifies as an aggravated felony under § 1227(a)(2)(A)(iii). See
Ramos, 414 F.3d at 801. Because Hernandez’s petition is
limited to arguing that his state conviction is not an aggra-
vated felony, we had jurisdiction to review the petition
before enactment of the REAL ID Act, and we will continue
to exercise jurisdiction over such claims.
Hernandez first contends that the BIA “reversed” a
finding by the IJ that his solicitation conviction did not
constitute “sexual abuse of a minor” as understood in
No. 04-1245 5
§ 1101(a)(43)(A). But this reading mischaracterizes the
decisions of both immigration courts. The IJ seems to have
passed on deciding whether Hernandez’s solicitation
conviction constituted a conviction for the completed
offense of sexual abuse of a minor under § 1101(a)(43)(A).
Instead the IJ labeled the conviction as one under
§ 1101(a)(43)(U) for attempt to commit sexual abuse of a
minor. The BIA endorsed this conclusion. There is no
conflict between the two decisions.
As to the merits, Hernandez argues that his solicita-
tion conviction does not qualify as an aggravated felony.
But in Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005), we
held that “sexual abuse of a minor” under § 1101(a)(43)(A)
encompasses Illinois convictions for solicitation of a
minor. The statute at issue in Gattem provides:
Any person who offers a person not his or her spouse
any money, property, token, object, or article or any-
thing of value to perform any act of sexual penetration
as defined in Section 12-12 of this Code, or any touch-
ing, or fondling of the sex organs of one person by
another person for the purpose of sexual arousal or
gratification, commits the offense of solicitation of a
sexual act.
720 ILCS 5/11-14.1(a) (2000). In Gattem the defendant
committed a misdemeanor violation by offering cigarettes to
a minor under age 17 if she would engage in oral sex with
him. Gattem, 412 F.3d at 765. This court recognized that
Congress intended a categorical approach for determining
whether a state conviction is an aggravated felony for
immigration purposes. Id. (identifying aggravated felonies
based on elements of state offense and, where necessary, the
charging document); see also United States v. Pallares-Galan,
359 F.3d 1088, 1099 (9th Cir. 2004). We then concluded that
6 No. 04-1245
there exists an “inherent risk of exploitation, if not coercion,
when an adult solicits a minor to engage in sexual activity.”
Thus, solicitation, a partially completed offense similar to an
attempt, see United States v. Lamb, 207 F.3d 1006, 1008 (7th
Cir. 2000), constitutes sexual abuse of a minor under
§ 1101(a)(43)(A). Gattem, 412 F.3d at 765. Because
Hernandez was convicted of indecent solicitation of a child,
Gattem compels the conclusion that his conviction falls, at
least facially, within the INA’s definition of “sexual abuse of
a minor.”
In Gattem, though, the defendant in fact solicited a
minor, whereas Hernandez did not. Hernandez was con-
victed under a statute that encompasses solicitation of a
child or one who is believed to be a child, 720 ILCS 15/11-
6(a). He contends that solicitation cannot be an aggravated
felony if there was not a minor actually involved. This really
is an argument of impossibility: because Hernandez’s victim
was an adult undercover investigator, completion of the
crime could not have resulted in “sexual abuse of a minor”
as contemplated by the INA.
We reject the argument that impossibility precludes
Hernandez’s conviction from being characterized as an
aggravated felony under the INA. “The impossibility of
completing the offense attempted is not a defense” to a
charge of attempted criminal sexual abuse under Illinois
law. People v. Patterson, 734 N.E.2d 462, 468 (Ill. App. Ct.
2000); see also 720 ILCS 5/8-4(b) (“It 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.”) The same
principle applies to analogous charges under federal law, see
United States v. Meek, 366 F.3d 705, 717-18 (9th Cir. 2004);
United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002);
No. 04-1245 7
United States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001).
Extending this line of reasoning to the immigration con-
text, we find no error in the IJ’s conclusion that Hernandez’s
conviction for indecent solicitation of a child qualifies as an
aggravated felony under § 1227(a)(2)(A)(iii). The petition for
review is therefore DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-05