January 17, 2018
for Review of a Final Administrative Removal Order of the
Department of Homeland Security. No. A099-397-292
Flaum, Easterbrook, and Barrett, Circuit Judges.
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.
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.
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.
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.
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."
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); and (2) five counts of Sexual
Misconduct with a Minor (for completed sexual contact, such
as fondling, between Correa-Diaz and PS.).,  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.
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.
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
On August 3, 2016, DHS found Correa-Diaz removable as charged
and ordered him removed to Mexico.
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 ...