Gerardo Correa-Diaz v. Jefferson B. Sessions III, 881 F.3d 523

Background

Petitioner Gerardo Correa-Diaz, a Mexican national, pleaded guilty in Indiana (2005) to Attempted Sexual Misconduct with a Minor under Ind. Code § 35-42-4-9(a) for attempted sexual intercourse with a 14–15-year-old; he was 18 at the time.
DHS issued a Final Administrative Removal Order (2016) charging him as removable for conviction of an "aggravated felony"—"sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A).
Correa-Diaz sought review in this court; the court retained jurisdiction only to decide whether his conviction qualifies as an aggravated felony under § 1101(a)(43)(A).
The legal dispute required applying the categorical approach (compare the statutory minimum offense conduct to the federal generic definition) and assessing whether to defer to the BIA’s interpretation of "sexual abuse of a minor."
The court considered the Supreme Court’s decision in Esquivel-Quintana (constraining BIA deference for statutory-rape statutes focused solely on age) but distinguished that decision as addressing a different precise question.
The Seventh Circuit concluded the Indiana statute criminalized conduct that falls within the BIA/18 U.S.C. § 3509(a)(8) definition of "sexual abuse of a minor," and denied the petition for review.

Issues

Issue	Correa-Diaz's Argument	DHS's Argument	Held
Whether the conviction is an "aggravated felony" as "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A)	Conviction for attempted intercourse with a 14–15-year-old does not categorically amount to "sexual abuse" given age proximity and Esquivel-Quintana limits	The Indiana offense (adult ≥18 with child 14–<16) criminalizes sexual intercourse with a minor under 16 and thus fits the BIA’s broad definition of "sexual abuse of a minor"	Held: The conviction categorically qualifies as "sexual abuse of a minor" and thus an aggravated felony; petition denied.
Whether Chevron deference applies to the BIA’s interpretation of "sexual abuse of a minor"	Esquivel-Quintana and Christensen preclude Chevron deference here	The BIA’s Rodriguez-Rodriguez interpretation is an administrative adjudication entitled to Chevron deference on the ambiguous term	Held: Chevron deference applies; Esquivel-Quintana does not eliminate deference on the distinct question presented.
Proper interpretive method: categorical approach and focus on minimum conduct	Court should consider actual facts of case to avoid overbreadth	Must use categorical approach and compare statutory minimum conduct to federal generic definition	Held: Apply the categorical approach; focus on minimum conduct criminalized by Indiana statute.
Whether attempted inchoate offense can be an aggravated felony	Attempt should not be treated as less than completed conduct for immigration removal	INA expressly treats inchoate offenses (attempt, conspiracy) as aggravated felonies when the underlying offense is listed	Held: Attempt conviction qualifies; INA covers inchoate offenses.

Key Cases Cited

Gaiskov v. Holder, 567 F.3d 832 (7th Cir. 2009) (courts lack review of removal orders based on aggravated felony but may decide whether conviction is an aggravated felony)
Velasco-Giron v. Holder, 773 F.3d 774 (7th Cir. 2014) (BIA’s Rodriguez-Rodriguez approach to "sexual abuse of a minor" is reasonable and entitled to deference)
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (statutory-rape laws based solely on participant ages qualify as "sexual abuse" under § 1101(a)(43)(A) only if the victim is younger than 16; limited scope)
Mathis v. United States, 136 S. Ct. 2243 (2016) (when applying categorical approach, courts compare statute to generic offense; do not examine underlying facts)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach requires focusing on minimum conduct criminalized)
Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) (minors’ diminished judgment creates inherent risk of exploitation; supports classifying certain sex offenses as "sexual abuse")
Coyomani-Cielo v. Holder, 758 F.3d 908 (7th Cir. 2014) (Chevron step-one requires Congress to have spoken to the precise question at issue)
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (framework for applying Chevron deference)