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Correa-Diaz v. Sessions

United States Court of Appeals, Seventh Circuit

January 31, 2018

Gerardo Correa-Diaz, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued January 17, 2018

         Petition for Review of a Final Administrative Removal Order of the Department of Homeland Security. No. A099-397-292

          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 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, "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 PS.).[2], [3] Petitioner was sentenced to two years' imprisonment on the attempted sexual intercourse charge and six months' imprisonment on 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 Correa-Diaz 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. § l227(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- 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 ...


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