7th Circuit denies review of sex offender’s deportation

February 1, 2018

A Mexico native ordered deported from Indiana in early 2017 must remain in his home country after the 7th Circuit Court of Appeals on Wednesday denied his petition for review of his removal.

In September 2004, a police officer spotted Gerardo Correa-Diaz, who was then 18 years old, in a school parking lot with 14-year-old P.S. The officer saw Correa-Diaz pulling up and buckling his pants, and he was arrested two days later.

When child protective services interviewed P.S., she admitted to sneaking out to meet Correa-Diaz and having sex with him in the car. She also admitted to engaging in similar conduct with him on at least two prior occasions. Correa-Diaz, however, claimed “nothing happened” and that P.S. had told him she was almost 16.

After Indiana prosecutors charged Correa-Diaz with one count of attempted sexual misconduct with a minor and five counts of sexual misconduct with a minor, he received a suspended sentence. Ten years later, however, he was arrested by police in Lafayette and pleaded guilty to counterfeiting.

Then in July 2016, the Department of Homeland Security served Correa-Diaz with a notice of intent to issue an order for his removal from the United States based on his conviction of an “aggravated felony” – his 2005 conviction for attempted sexual misconduct. DHS eventually found him removable as charged and ordered him deported to Mexico.

Prior to his removal in early 2017, Correa-Diaz filed a petition for review with the 7th Circuit Court of Appeals in Gerardo Correa-Diaz v. Jefferson B. Sessions, III, 16-3198.

The federal appellate court denied his petition on Wednesday, with Judge Joel Flaum first noting that sexual abuse of a minor is considered an “aggravated felony” under 8 U.S. Code section 1101(a)(43)(A), but the statute does not delineate what offense constitutes sexual abuse of a minor.

The Board of Immigration Appeals, however, defined the term consistently with 18 U.S.C. section 3509(a)(8), Flaum said, and under Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), the court gave deference to the BIA’s definition. That definition requires the victim to be less than 16, which was satisfied here, he said.

Further, the court determined the conduct prohibited by the 2005 version Indiana Code section 35-42-4-9(a) – under which Correa-Diaz was convicted – meets the BIA’s definition of sexual abuse of a minor. The judges reached that decision based on Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir. 2009), which treated conduct under subsection (b) of the Indiana statute as falling within the board’s definition of sexual abuse of a minor.

“Given that section (a) criminalizes the more aggravated behavior of sexual intercourse, it warrants similar treatment,” Flaum wrote.


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