Gerardo Correa-Diaz v. Jefferson B. Sessions III

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16-3198 GERARDO CORREA-DIAZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of a Final Administrative Removal Order of the Department of Homeland Security. No. A099-397-292 ____________________ ARGUED JANUARY 17, 2018 — DECIDED JANUARY 31, 2018 ____________________ 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 De- partment of Homeland Security issued a Final Administrative Removal Order based upon the § 35-42-4-9(a) conviction. Pe- titioner now seeks review. At issue is whether petitioner’s 2 No. 16-3198 conviction amounts to “sexual abuse of a minor” and there- fore constitutes an “aggravated felony” under the Immigra- tion and Nationality Act (“INA”). See 8 U.S.C. § 1101(a)(43)(A). For the reasons that follow, we deny the pe- tition 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 un- known 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 approxi- mately 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 Cor- rea-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, No. 16-3198 3 “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 ...

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