## Facts

- Gerardo Correa-Diaz, a native and citizen of Mexico, entered the United States without inspection.
- In 2005, he pleaded guilty in Indiana to two counts of attempted sexual misconduct with a minor under Ind. Code § 35-42-4-9(a) and (b).
- The immigration charge relied on § 35-42-4-9(a), which criminalizes a person at least 18 who performs or submits to sexual intercourse or deviate sexual conduct with a child aged 14 to under 16.
- In 2016, the Department of Homeland Security issued a final administrative removal order, asserting the § 35-42-4-9(a) attempt conviction was an aggravated felony as “sexual abuse of a minor.”
- Correa-Diaz petitioned for review, disputing that his conviction qualifies as “sexual abuse of a minor” under the Immigration and Nationality Act (INA).

## Issues

1. Whether attempted sexual misconduct with a minor under Ind. Code § 35-42-4-9(a) categorically qualifies as “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A).
2. If so, whether the attempt conviction is an aggravated felony under 8 U.S.C. § 1101(a)(43)(U), making Correa-Diaz removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

## Decision

- The court denied the petition for review and left the removal order in place.
- Applying the categorical approach, the court held Ind. Code § 35-42-4-9(a) fits within “sexual abuse of a minor” because it requires sexual intercourse or deviate sexual conduct with a victim under 16 by an adult at least 18.
- The court rejected arguments that the statute is overbroad or lacks an “abuse” element; for age-based sexual offenses involving minors under the age of consent, “abuse” is treated as inherent in the generic immigration definition.
- Because the completed § 35-42-4-9(a) offense qualifies, an attempt to commit it also qualifies as an aggravated felony under § 1101(a)(43)(U).

## Legal Principles

- Courts use the categorical approach to decide whether a state conviction matches the generic federal offense listed in the INA’s aggravated-felony definition.
- For “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), an age-based statute requiring a victim under 16 and sexual intercourse or comparable sexual conduct by an adult can categorically qualify.
- A statute is not overbroad for this purpose where every conviction under its elements necessarily involves sexual intercourse or deviate sexual conduct with a victim under 16.
- Under 8 U.S.C. § 1101(a)(43)(U), an attempt to commit an offense described as an aggravated felony is itself an aggravated felony when the underlying completed offense would qualify.

## Conclusion

The Seventh Circuit held that attempted sexual misconduct with a minor under Ind. Code § 35-42-4-9(a) is categorically “sexual abuse of a minor,” making it an INA aggravated felony and supporting Correa-Diaz’s administrative removal.


Correa-Diaz v. Sessions, 881 F.3d 523 (7th Cir. 2018)