In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1799

Jose F. Guerrero-Perez,

Petitioner,

v.

Immigration and Naturalization Service,
and John Ashcroft,

Respondents.



On Petition for Review
From the Board of Immigration Appeals
No. A24 496 118


Argued January 9, 2001--Decided March 5, 2001



      Before Flaum, Chief Judge, and Bauer and Coffey,
Circuit Judges.

      Flaum, Chief Judge. The Immigration Court found
Jose F. Guerrero-Perez removable on the grounds
that he had: (1) committed an aggravated felony--
that is, sexual abuse of a minor, and (2) been
convicted of the crime of child abuse. The Board
of Immigration Appeals ("BIA") affirmed the
Immigration Court’s decision concerning
Guerrero’s removability and dismissed his appeal.
Guerrero appeals to this court arguing that
because his criminal sexual abuse conviction
under Illinois law is considered a Class A
misdemeanor, and not a felony, he cannot be
deemed to have committed an aggravated felony
under sec. 101(a)(43)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. sec.
1101(a)(43)(A). For the reasons stated below, we
affirm the decision of the BIA.

Background

      Guerrero is a native and citizen of Mexico./1
He was born on January 25, 1979 and entered the
United States on March 28, 1979 when he was just
over two months old, as an immigrant child
admitted for Lawful Permanent Residence without
an immigrant visa in accordance with 8 C.F.R.
sec. 211. The Immigration and Naturalization
Service ("INS") in a Notice To Appear, dated July
26, 1999, charged that Guerrero was subject to
removal: (1) under sec. 237(a)(2)(A)(ii) of the
INA, 8 U.S.C. sec. 1227(a)(2)(A)(ii) because he
had been convicted of two crimes involving moral
turpitude; (2) under sec. 237(a)(2)(A)(iii) of
the INA, 8 U.S.C. sec. 1227(a)(2)(A)(iii),
because he had been convicted of the aggravated
felony of sexual abuse of a minor, as defined in
sec. 101(a)(43)(A) of the INA, 8 U.S.C. sec.
1101(a)(43)(A); and (3) because he was convicted
of child abuse, sec. 237(a)(2)(E)(i) of the INA,
8 U.S.C. sec. 1227(a)(2)(E)(i). The Immigration
Judge ("IJ") did not find Guerrero removable on
the basis that he had committed two crimes
involving moral turpitude under 8 U.S.C. sec.
1227(a)(2)(A)(ii). Both the IJ and the BIA
determined that Guerrero was removable because of
his aggravated felony conviction, 8 U.S.C. sec.
1227(a)(2)(A)(iii), for sexual abuse of a minor,
8 U.S.C. sec. 1101(a)(43)(A) and his conviction
for child abuse, 8 U.S.C. sec. 1227(a)(2)(E)(i).
Aliens who have committed child abuse are not
considered aggravated felons and are eligible for
cancellation of removal. An alien deemed to have
committed an aggravated felony does not have the
right to cancellation of removal, sec. 240
(A)(a)(3) of the INA, 8 U.S.C. sec. 1229b(a)(3),
and therefore whether we find Guerrero to be an
aggravated felon is critical in this case. As a
consequence, we will limit our discussion to this
issue. In his appeal, Guerrero argues that under
the INA, an immigrant cannot be considered an
aggravated felon if he or she was convicted of a
misdemeanor rather than a felony./2

Discussion
A. Jurisdiction

      The government argues that we lack jurisdiction
to consider Guerrero’s petition for review.
According to the government, sec. 242(a)(2)(C) of
the INA, 8 U.S.C. sec. 1252(a)(2)(C) limits our
review because it states that: "Notwithstanding
any other provision of law, no court shall have
jurisdiction to review any final order of removal
against an alien who is removable by reason of
having committed a criminal offense covered in
section 1182(a)(2) or 1227(a)(2)(A)(iii)
[aggravated felony] . . ." (emphasis added). The
BIA found Guerrero removable because he had been
convicted of an aggravated felony (sexual abuse
of a minor), 8 U.S.C. sec. 1227(a)(2)(A)(iii),
which is covered by 8 U.S.C. sec. 1252(a)(2)(C).
Notwithstanding this potential bar to review, the
government concedes that the court retains its
authority to review the jurisdictional facts upon
which the removal proceedings were based,
including a determination of whether in fact
Guerrero is an alien who is removable because he
has committed a criminal offense listed in the
relevant statute. The government’s position is
that the BIA properly determined that the INS had
established Guerrero’s alienage and removability.
Specifically, Guerrero’s conviction for criminal
sexual abuse constitutes an aggravated felony.
Because this conviction is a disqualifying crime
under 8 U.S.C. sec. 1252(a)(2)(C), the government
contends that we must dismiss Guerrero’s petition
for review because this Court lacks jurisdiction
over Guerrero’s claim.

      The government has not presented a successful
argument as to why we should not review this
case. While it may be true that 8 U.S.C. sec.
1252(a)(2)(C) suggests that we do not have the
authority to review cases involving the
removability of aggravated felons, this statute
does not foreclose completely our inquiry into
this matter. We must determine whether this Court
has jurisdiction over this case. As a
consequence, we have the jurisdiction to decide
whether Guerrero has been convicted of an
aggravated felony. See Xiong v. INS, 173 F.3d
601, 604 (7th Cir. 1999) ("Notwithstanding the
unreviewability of cases involving deportation of
aggravated felons, however, this Court does have
jurisdiction to determine whether it has
jurisdiction; that is, we have jurisdiction to
determine whether Xiong has been convicted of an
aggravated felony."). "[B]oth jurisdiction and
the merits turn" on whether Guerrero has
committed an aggravated felony. Id. Having
determined we have jurisdiction to review
Guerrero’s case, we now turn to examine his
argument that his misdemeanor conviction for
criminal sexual abuse does not constitute an
aggravated felony.

B.   Aggravated Felony:
Can it be a Misdemeanor?

      We review the BIA’s determination that Guerrero
is removable because he is an aggravated felon de
novo. Xiong, 173 F.3d at 605. Nevertheless, we
defer to the BIA’s interpretation of the statute
it administers. Id.; see also Marquez v. INS, 105
F.3d 374, 378 (7th Cir. 1997). Further, we accord
deference to the BIA’s factual findings, and we
will reverse the BIA only if the record lacks
substantial evidence to support its factual
conclusions. Sayaxing v. INS, 179 F.3d 515, 519
(7th Cir. 1999).

      This appeal centers around whether Guerrero
committed an aggravated felony. In April of 1999,
Guerrero pled guilty in Illinois state court to
the offense of "criminal sexual abuse." According
to Illinois law, "[t]he accused commits criminal
sexual abuse if he or she commits an act of
sexual penetration or sexual conduct with a
victim who was at least 13 years of age but under
17 years of age and the accused was less than 5
years older than the victim." 720 ILCS 5/12-
15(c). Guerrero received a Class A misdemeanor
conviction for his action. The criminal complaint
indicates that Guerrero committed an act of
sexual penetration with a girl, and at the time,
he was nineteen years old and she was fifteen
years old. As a result of his guilty plea,
Guerrero was sentenced to 30 days work release
and two years of sex offender probation. The IJ
in his oral decision said that Guerrero had
committed the aggravated felony of sexual abuse
of a minor and the crime of child abuse.
Accordingly, he was not entitled to cancellation
of removal under sec. 240(A) of the INA, 8 U.S.C.
sec. 1229b, because this statute does not allow
for such relief if an alien has been convicted of
an aggravated felony. See 8 U.S.C. sec.
1229b(a)(3). During argument before the IJ,
Guerrero’s counsel raised the issue that
Guerrero’s conviction was a Class A misdemeanor,
and not a felony, and therefore should not be
considered an aggravated felony. The IJ, after
rendering his oral decision, said, "I did forget
to address in my decision the argument that the
respondent’s conviction was a misdemeanor and not
a felony. The Board of Immigration Appeals has
held in a number of unprecedented decisions,
which I’ve received[,] that . . . even
misdemeanors can constitute aggravated felonies
under the Immigration Act. So even if the
respondent’s conviction for criminal sexual abuse
was a misdemeanor, I would find that it still
constitute[d] an aggravated felony under the
Act." It is difficult to track this brief comment
made by the IJ because he did not provide any
such case citations for the proposition that the
BIA has held that misdemeanors can constitute
aggravated felonies nor has the government in
this appeal. Additionally, the BIA did not
proceed to analyze this question. Rather, it
concluded that Guerrero’s behavior was sexual
abuse of a minor as defined in In re Rodriguez-
Rodriguez, Interim Decision 3411 (BIA 1999). In
Rodriguez-Rodriguez, the BIA determined that
sexual abuse of a minor included: "the
employment, use, persuasion, inducement,
enticement, or coercion of a child to engage in,
or assist another person to engage in, sexually
explicit conduct or the rape, molestation,
prostitution, or other form of sexual
exploitation of children, or incest with
children." 18 U.S.C. sec. 3509(a)(8). Applying
this definition, the BIA stated that "[t]his
statute [18 U.S.C. sec. 3509(a)(8)] encompasses
the conduct at issue here [Guerrero’s behavior]."
According to the BIA, Guerrero had committed an
aggravated felony as well as child abuse.
Although the BIA acknowledged that Guerrero’s
conviction was a Class A misdemeanor, its
decision is silent with regard to the issue of
whether Guerrero’s misdemeanor conviction can be
deemed an aggravated felony. Thus, we begin with
a limited commentary by the IJ on the
misdemeanor-felony question, and no analysis on
the issue by the BIA.

      On the other hand, Guerrero’s position is quite
explicit. He argues that he never committed a
felony, and certainly not an aggravated felony.
Guerrero points to several decisions by this
Court, which he believes support his claim that
a misdemeanor cannot constitute an aggravated
felony for the purposes of the statute in
question. Solorzano-Patlan v. INS, 207 F.3d 869
(7th Cir. 2000), was a case in which an alien was
convicted of burglarizing a vehicle. Under
Illinois law, this crime is labeled as a felony
burglary. This Court determined that this type of
burglary was not the sort of aggravated felony
Congress meant to reach when it included burglary
as an aggravated felony, 8 U.S.C. sec.
1101(a)(43)(G). Further, we found that Solorzano-
Patlan’s actions did not necessarily constitute
a crime of violence, 8 U.S.C. sec.
1101(a)(43)(F). Guerrero also argues that Xiong,
173 F.3d 601, is yet another case in which this
Court decided that a Wisconsin felony conviction
involving sexual conduct with a victim under
sixteen years of age was not a crime of violence
because of the particular facts of the case.
Moreover, Guerrero contends that in Jideonwo v.
INS, 224 F.3d 692 (7th Cir. 2000), this Court
said that in a felony setting a plea carries with
it settled expectations. Accordingly, Guerrero
asserts that when he entered a plea of guilty for
a Class A misdemeanor, it was not possible for
him to have known that the BIA would determine
that such a conviction was not only a felony, but
an aggravated felony. According to Guerrero,
Congress clearly has the capacity to distinguish
between what is a misdemeanor and what
constitutes a felony. An example of Congress’
ability to do so is the Immigration Reform and
Control Act of 1986, which provides general
amnesty for people in the United States, but
precludes any individual who has one felony
conviction or three misdemeanor convictions. See
Immigration Reform and Control Act of 1986, sec.
201, Pub. L. No. 99-603, 100 Stat. 3359 (1986).
More recently, Congress enacted the Legal
Immigration Family Equity Act and provided that
certain individuals could obtain permanent
residence, as long as they did not have one
felony or three misdemeanor convictions. See
Legal Immigration Family Equity Act, sec.
1104(c), Pub. L. No. 106-553, 114 Stat. 2762
(2000). It is Guerrero’s contention that if the
government were to prevail, and we were to
conclude that his actions did fall within the
aggravated felony ambit, then he would be barred
from ever returning to the United States.
Guerrero asserts that the statute discusses
"aggravated felonies," and not "aggravated
felonies or misdemeanors." Considering the
significant consequences attached to labeling him
as an aggravated felon, he urges us not to
speculate about whether Congress intended to
include misdemeanors within its definition of
aggravated felony--that is, we should construe
any ambiguity in favor of the alien and find that
the term aggravated felony does not encompass
misdemeanors.

      The approach that Guerrero would like us to
adopt is the one articulated by the dissent in
United States v. Pacheco, 225 F.3d 148 (2d Cir.
2000) (Straub, J., dissenting). In Pacheco, the
Second Circuit dealt with a case where the
defendant pled guilty to aggravated reentry
following deportation, in violation of 8 U.S.C.
sec. 1326(a)(1). The question became whether he
deserved a 16-level enhancement for having
committed an aggravated felony as defined within
the meaning of sec. 101(a)(43)(F) and (G) of the
INA, 8 U.S.C. sec. 1101(a)(43)(F), (G), which
relates to a crime of violence and a theft or
burglary offense respectively. The majority in
Pacheco decided that the "statutory definition is
explicit on its face that certain offenses
punished by a one-year sentence are included [as
aggravated felonies], it is neither our task to
rewrite the definition of the underlying offense
to eliminate the incongruity nor to ignore the
clear dictates of the amended INA." Id. at 155.
Thus, the majority at the outset of its opinion
said: "In the case before us, we deal with the
question of whether Congress can make the word
’misdemeanor’ mean ’felony.’ As will be seen, we
hold that it can, because in this instance, we
consider Congress ’to be master--that’s all.’"
Id. at 149. Judge Straub in his dissent reasoned
that "the critical issue presented by this case
is not whether Congress can make the word
misdemeanor mean felony, but rather whether it
actually did." Id. at 156 (internal citations,
emphasis, and internal quotations marks omitted).
Using plain meaning as his guide, Judge Straub
discussed the ordinary and plain meaning of the
words "felony" and "aggravated." He stated that,
"One would never suggest, for example, that by
adding the adjective ’blue’ to the noun ’car,’
one could be attempting to define items that are
not, in the first instance, cars. . . . [W]e
should presume that the specifics that follow in
the definition of ’aggravated felony’ under INA
sec. 101(a)(43) serve to elucidate what makes
these particular felonies ’aggravated’; we
certainly should not presume that those specifics
would include offenses that are not felonies at
all. Thus, under the majority’s view, Congress
has defined a subset of a category to include
items that are not in the broader category
itself." Id. at 157. Although Judge Straub did
acknowledge the premise of the majority’s
position, he countered by saying, "While Congress
certainly has a right to define one thing to mean
something different from what it normally means,
the counter-intuitive use of language in INA sec.
101(a)(43)(F) & (G) should raise red flags
signaling the need for closer scrutiny." Id. at
158. He therefore concluded that "the
’linguistically unnatural’ statement that
’aggravated felony’ includes misdemeanors renders
the term ambiguous" and then he applied the rule
of lenity to decide that the statute should be
construed not to include misdemeanors. Id.
Guerrero advances that we should adopt the
analysis of the dissent in Pacheco and find that
the term aggravated felony does not include
misdemeanor convictions.

      While we are mindful of the harsh realities
that Guerrero will face if he is deemed to be an
aggravated felon, we are constrained by the
structure of the statute as well as Congress’
intent when it defined certain crimes as
aggravated felonies to reject Guerrero’s
position. We will begin by addressing Guerrero’s
arguments, none of which are persuasive.
Solorzano-Patlan, 207 F.3d 869, was a case in
which we had to confront whether burglary of a
vehicle, which at the time was a felony crime in
Illinois, should be considered a crime of
violence under 8 U.S.C. sec. 1101(a)(43)(F) ("a
crime of violence . . . for which the term of
imprisonment [is] at least one year"), id. at
875, and a burglary offense under 8 U.S.C. sec.
1101(a)(43)(G) ("burglary offense for which the
term of imprisonment [is] at least one year"),
id. at 873. Ultimately, we concluded that a
burglary offense entails "unlawful entry into, or
remaining in, a building or structure, with
intent to commit a crime." Id. at 874.
Consequently, Solorzano-Patlan’s burglarizing a
vehicle did not involve a building or structure
and so could not fall within the meaning of
burglary offense as provided for in 8 U.S.C. sec.
1101(a)(43)(G).

      To illustrate the need for uniformity in
defining the term "burglary," we explored what
possible Indiana and Wisconsin statutes under
which Solorzano-Patlan would have been convicted.
This exercise allowed us to reveal how even
though Illinois labels entering a vehicle a
burglary, Indiana would classify this type of
crime as a theft, and Wisconsin would consider
Solorzano-Patlan’s behavior to involve a
misdemeanor offense. Id. Pursuant to Indiana law,
the INS would not have been able to deport
Solorzano-Patlan for burglary because he would
have been convicted of theft. Id. Likewise, in
Wisconsin the crime is labeled "Entry Into a
Locked Vehicle" and is a Class A misdemeanor with
a punishment of "a fine not to exceed $10,000 or
imprisonment not to exceed 9 months, or both."
Id. (internal citations and quotation marks
omitted). Thus, we said that "in Wisconsin,
Solorzano-Patlan would only have been charged
with a misdemeanor, and therefore he would not
have been eligible for deportation." Id. Some
might interpret this observation to suggest that
a misdemeanor cannot be included within the
purview of an aggravated felony. Such a reading
would be misplaced. Earlier we had said that for
a burglary offense, it is necessary to have "the
term of imprisonment [be] at least one year," id.
at 873 (modification added), and that the
"relevant inquiry is whether the possible maximum
sentence that could have been imposed is at least
a year." Id. at 873 n.6. The Wisconsin crime for
entry into a locked vehicle has a maximum
sentence of 9 months, so by definition it would
not be an aggravated felony because the maximum
sentence that could be imposed could never be at
least a year. We were merely demonstrating how,
because of various state law definitions, the
same conduct could be interpreted differently and
could lead to divergent consequences for an
alien. To avoid such a disparity, we concluded
that it would be prudent to adopt a general
definition of burglary so that a more uniform
approach could be obtained. Id. at 874. In
addition, we said that it was unclear whether
burglarizing a car involved a "substantial risk
that physical force . . . [may] be used." Id. at
876 (internal citations and quotation marks
omitted). Solorzano-Patlan simply involves
interpreting the limits of what comprises a
burglary offense and crime of violence and not
whether a misdemeanor can be an aggravated
felony.

      Similarly, in Xiong, 173 F.3d 601, we were
faced with the task of determining whether Xiong
had committed a crime of violence, 8 U.S.C. sec.
1101(a)(43)(F). Xiong had been convicted of
sexual assault of a child under a Wisconsin
statute, a crime classified as a felony, and
sentenced to five years of imprisonment. In this
particular case, we decided it was appropriate to
look beyond the charging papers and this
permitted us to conclude that "[i]f the IJ had
considered the facts described in the complaint,
he would have found that the conduct of which
Xiong was convicted consisted of consensual sex
between a boyfriend and his fifteen year old
girlfriend," id. at 607, and did not "by its
nature, involve[ ] a substantial risk [of]
physical force" and thus was not a crime of
violence. Id. (internal citations and quotation
marks omitted). Although the INS attempted to
argue that Xiong’s behavior constituted sexual
abuse of a minor, we declined to address this
question because it had not been initially raised
before the IJ, noting that aliens have Fifth
Amendment due process rights in removal
proceedings: the right to notice and a meaningful
chance to be heard. See id at 608. Briefing and
argument on an alternative ground at the court of
appeals stage is not a proper substitute for the
alien’s right to have a "chance to argue against
the proposition" before the IJ and we therefore
determined that the question of whether Xiong
committed sexual abuse of a minor "is best
considered by the IJ on remand." Id. Once again,
we were interpreting the contours of what
delineates a crime of violence in Xiong, and
Guerrero was not charged as removable because he
was convicted of a crime of violence, making
Xiong inapplicable. Further, the issue of whether
a misdemeanor can be an aggravated felony was not
addressed since Xiong had been convicted of a
felony.

      Guerrero also relies upon Jideonwo, 224 F.3d
692, to claim, although he does not expressly
couch his argument in these terms, that deporting
him as an aggravated felon would violate his
rights under the Due Process Clause. In Jideonwo,
we dealt with a situation in which the defendant,
Jideonwo, had pled guilty to one count of
conspiracy to possess with intent to distribute
heroin in violation of 21 U.S.C. sec. 846, under
the premise that he would remain eligible for a
discretionary waiver of deportation under sec.
212(c) of the INA. With the enactment of the
Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), "sec.440(d) of that Act amended
sec. 212(c) of the INA to make criminal aliens
who had been convicted of aggravated felonies,
such as the drug felony to which Jideonwo pled
guilty, ineligible to receive a discretionary
waiver." Id. at 695-96. We had to decide whether
this Act retroactively should apply to Jideonwo;
if it did, he would be ineligible for a sec.
212(c) waiver because he had been convicted of an
aggravated felony, 8 U.S.C. sec. 1101(a)(43)(B).
According to Jideonwo, to apply the provisions of
the AEDPA’s sec.440(d) retroactively would
violate his rights under the Due Process Clause.
Id. at 696. Because there was "significant
evidence that the availability of a sec. 212(c)
waiver influenced Jideonwo’s decision to plead
guilty," we found him eligible for such relief.
Id. at 701. Our decision to reach this position
rested in large part upon the particular facts of
the case--that is, Jideonwo’s specific reliance
on a sec. 212(c) waiver when he pled guilty and
the retroactivity problem that nullified the
existence of such relief. Guerrero has not
provided any affirmative evidence that he pled
guilty to a Class A misdemeanor in reliance upon
the fact that he would not be considered an
aggravated felon nor is there any issue of
retroactively applying an immigration statute in
Guerrero’s case. Even if Guerrero had pled guilty
to a misdemeanor based on the assumption that it
would not be considered an aggravated felony,
this type of reliance probably would not result
in a due process violation because at the time
there existed no explicit direction, as was the
case in Jideonwo prior to the change in statute,
that this Circuit would conclude a misdemeanor
cannot be an aggravated felony. Therefore,
Jideonwo does not support Guerrero’s position.

      Arguably, Guerrero’s strongest argument is that
we should adopt the dissent’s position in
Pacheco, 225 F.3d at 155-61. The difficulty with
the dissent’s approach is that it focuses upon
the plain meaning of the term "aggravated
felony," by exploring the ordinary, common sense
meaning of each of these words. The statute,
however, includes more than these two words: "The
term ’aggravated felony’ means--. . ." 8 U.S.C.
sec. 1101(a)(43). The dissent does not address
the word "means," and instead concentrates on the
term "aggravated felony," and thus concludes that
it is difficult to conceive of how a misdemeanor
could be a felony, let alone an aggravated
felony. While this approach to the issue is not
without a certain logic, it places a heavy
emphasis upon the two words--that is, aggravated
and felony--without discussing the full statute
in which these two words appear. Consequently,
the dissent’s analysis operates in a type of
vacuum, and as a result, does not grapple with
either the structure and context of the complete
statute or Congress’ intent when it enacted the
aggravated felony provision, 8 U.S.C. sec.
1227(a)(2)(A)(iii), and its attendant meaning, 8
U.S.C. sec. 1101(a)(43).

      Whether an Illinois Class A Misdemeanor for
criminal sexual abuse can constitute an
aggravated felony under the rubric of sexual
abuse of a minor is a question of first
impression for this Circuit. We are mindful that
several other circuits have addressed a similar
issue with regard to a crime of violence, 8
U.S.C. sec. 1101(a)(43)(F), and theft or burglary
offense, 8 U.S.C. sec. 1101(a)(43)(G). See United
States v. Christopher, No. 00-10899, 2001 WL
50343 (11th Cir. Jan. 22, 2001) (misdemeanor
theft offense); Wireko v. Reno, 211 F.3d 833 (4th
Cir. 2000) (misdemeanor crime of violence);
Pacheco, 225 F.3d 148 (misdemeanor theft or
burglary offense/crime of violence); United
States v. Graham, 169 F.3d 787 (3d Cir. 1999)
(misdemeanor theft offense). However, none of
these cases directly address whether a
misdemeanor conviction for sexual abuse of a
minor can be an aggravated felony./3 Our task is
to deal with the term "aggravated felony."

      We begin by noting that Congress has extensive
control over the admission of aliens into the
United States. This authority stems from the
constitutional grant of power to Congress to
"establish an uniform Rule of Naturalization."
Art. I., sec. 8, cl. 4. Almost a half-century
ago, the Supreme Court recognized the principle
"that the formulation of these policies [that is,
policies concerning the entry of aliens and their
right to remain here] is entrusted exclusively to
Congress has become about as firmly imbedded in
the legislative and judicial tissues of our body
politic as any aspect of our government." Galvan
v. Press, 347 U.S. 522, 531 (1954). "Drawing upon
this power, upon its plenary authority with
respect to foreign relations and international
commerce, and upon the inherent power of a
sovereign to close its borders, Congress has
developed a complex scheme governing admission to
our Nation and status within our borders." Plyler
v. Doe, 457 U.S. 202, 225 (1982). Thus, we must
respect that "over no conceivable subject is the
legislative power of Congress more complete than
it is over the admission of aliens." Fiallo v.
Bell, 430 U.S. 787, 792 (1977) (internal
citations and quotation marks omitted).

      The question before us arises out of the
"complex scheme" that Congress has created to
address the challenging policy questions that
arise with respect to aliens within our country.
Doe, 457 U.S. at 225. The structure Congress has
implemented requires that "[a]ny alien who is
convicted of an aggravated felony at any time
after admission is deportable." 8 U.S.C. sec.
1227(a)(2)(A)(iii) (emphasis added). In theory,
one need not ponder about the meaning of
aggravated felony, as Congress has provided us
with a list, aggravated felonies A through U,
indicating what falls within this term. See 8
U.S.C. sec. 1101(a)(43). Nonetheless, this is the
very question that we must address--did Congress
actually provide us with the meaning of
"aggravated felony"? We can begin to answer this
query by examining how the meaning of aggravated
felony has evolved over time. Congress passed the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub.L.No. 104-208
("IIRIRA"), which made amendments to the INA, and
significantly expanded the immigration
consequences for an alien who has committed past
criminal conduct. See United States v. Corona-
Sanchez, 234 F.3d 449, 454 (9th Cir. 2000). If
one were to compare the prior list of aggravated
felonies to the 1996 version, it would be
immediately clear that Congress not only
increased the type of crimes covered within this
category, but also widened the scope of the
crimes previously contained within this section
of the statute. Id.; see 8 U.S.C. sec.
1101(a)(43) (1994) and 8 U.S.C. sec. 1101(a)(43)
(Supp. 1996). This expansion has important
implications for the issue raised in this case
because the list of aggravated felonies, 8 U.S.C.
sec. 1101(a)(43)(A), prior to the 1996 changes
covered only murder. With the enactment of
IIRIRA, this very same section now reads: "(A)
murder, rape, or sexual abuse of a minor." See 8
U.S.C. sec. 1101(a)(43)(A) (Supp. 1996). A House
Report specifically commented upon the addition
of the latter two crimes: "This section amends
INA section 101(a)(43) (as amended by section
440(e) of the AEDPA (Public Law 104-132)), the
definition of ’aggravated felony,’ by: adding
crimes of rape and sexual abuse of a minor. . .
." H.R. Conf. Rep. No. 104-828, 104th Cong., 2d
Sess., at 494 (Sept. 24, 1996). In the same
Report, there is mention of the consequences of
including sexual abuse of a minor as an
aggravated felony: "This section amends INA
section 241(a)(2) (prior to redesignation as
section 237(a)(2)) to provide that an alien
convicted of crimes of domestic violence,
stalking, or child abuse is deportable. The
crimes of rape and sexual abuse of a minor are
elsewhere classified as aggravated felonies under
INA section 101(a)(43), thus making aliens
convicted of those crimes deportable and
ineligible for most forms of immigration benefits
or relief from deportation." Id. at 505-06.
Hence, the enlargement of part (A) of 8 U.S.C.
sec. 1101(a)(43) is discernible both from
comparing the current and former verison of the
statute as well as from the legislative history.
Congress decided to broaden 8 U.S.C. sec.
1101(a)(43)(A) from just murder to include rape
and sexual abuse of a minor, implicitly signaling
that it felt both of these latter two crimes were
of similar severity and import. Murder and rape
are widely recognized as felony crimes. Thus,
grouping sexual abuse of a minor with these two
acts, without explicitly limiting sexual abuse of
a minor to the status of a misdemeanor, is a
fairly strong indication, albeit a limited one
because of the lack of definite legislative
commentary on the subject, that Congress intended
both misdemeanor and felony convictions for
sexual abuse of a minor to be considered
aggravated felonies.

      The structure of 8 U.S.C. sec. 1101(a)(43)
reveals a desire on Congress’ part not to limit
aggravated felonies to only felony convictions.
Congress announced that "[a]ny alien who is
convicted of an aggravated felony at any time
after admission is deportable." 8 U.S.C. sec.
1227(a)(2)(A)(iii) (emphasis added). The critical
term in this section of the statute is
"aggravated felony" and Congress could have
decided not to define this term, as it chose not
to do so with regard to the term moral turpitude.
However, rather than leave the question of what
constitutes an aggravated felony open-ended,
Congress said, "The term ’aggravated felony’
means--. . ." and proceeded to list what crimes
would be considered aggravated felonies. It is
important to note that the term aggravated felony
is placed within quotation marks and Congress
then used the word "means" after this term. What
is evident from the setting aside of aggravated
felony with quotation marks and the use of the
term "means" is that 8 U.S.C. sec. 1101(a)(43)
serves as a definition section. As a consequence,
Congress had the option to use a variety of terms
to reach the crimes listed within sec.
1101(a)(43). It could have substituted the term
"aggravated felony" for a myriad of phrases,
including: (1) aggravated offense, see Graham,
169 F.3d at 792; (2) bad acts; and (3) aggravated
crimes. Although this list is hypothetical, it
exemplifies that Congress had the discretion to
use whatever term it pleased and define the term
as it deemed appropriate. See Stenberg v.
Carhart, 530 U.S. 914, 120 S.Ct. 2597, 2615
(2000) ("When a statute includes an explicit
definition, we must follow that definition, even
if it varies from that term’s ordinary
meaning."); Meese v. Keene, 481 U.S. 465, 484
(1987) ("Congress’ use of the term ’political
propaganda’ does not lead us to suspend the
respect we normally owe to the Legislature’s
power to define the terms that it uses in
legislation."). The statute functions like a
dictionary, in that it provides us with Congress’
definition of the term "aggravated felony." See
Stenberg, 120 S.Ct. at 2615 ("That is to say, the
statute, read as a whole, leads the reader to a
definition.") (internal citations and quotation
marks omitted). There is no explicit provision in
the statute directing that the term "aggravated
felony" is limited only to felony crimes. See
Colautti v. Franklin, 439 U.S. 379, 393 n.10
(1979) ("As a rule, [a] definition which declares
what a term ’means’ . . . excludes any meaning
that is not stated.") (internal citations and
quotation marks omitted). We therefore are
constrained to conclude that Congress, since it
did not specifically articulate that aggravated
felonies cannot be misdemeanors, intended to have
the term aggravated felony apply to the broad
range of crimes listed in the statute, even if
these include misdemeanors.
      Considering the broad authority that Congress
has over immigration, we are compelled to
acknowledge and implement its will. However, this
does not preclude us from underscoring the need
to carefully draft legislation that has crucial
importance to the lives of aliens, many of whom
are lawful permanent resident noncitizens in this
country. We readily acknowledge the harsh
consequences that can flow from including
misdemeanors as aggravated felonies. An
aggravated felony conviction causes an alien to
be ineligible for most forms of discretionary
relief, see INA sec. 208(b)(2)(B)(i), 8 U.S.C.
sec. 1158(b)(2)(B)(i) (asylum); INA sec.
240A(a)(3), 8 U.S.C. sec. 1229b(a)(3)
(cancellation of removal); and INA sec.
240B(a)(1) & (b)(1)(C), 8 U.S.C. sec. 1229c(a)(1)
& (b)(1)(C) (voluntary departure), and such an
alien may not reenter the United States without
the Attorney General’s consent to apply for
readmission. See INA sec. 212(a)(9)(A)(i), 8
U.S.C. sec. 1182(a)(9)(A)(i)-(iii). Also, an
alien who has been admitted to the United States
as a lawfully admitted permanent resident and has
been convicted of an aggravated felony is not
eligible for a waiver. See sec. 212(h) of the
INA, 8 U.S.C. sec. 1182(h). See generally 6 Charles
Gordon Et Al., Immigration Law and Procedure sec.
71.05[2][c] (rev. ed. 1998) (discussing the
provisions and restrictions relating to
aggravated felons). However, any unease with the
policy implications of the statute in question
are matters within the province of Congress and
not the judicial branch.

Conclusion

      For the foregoing reasons, we Affirm the BIA’s
decision regarding Guerrero’s petition for
review.



/1 During the immigration hearing, the petitioner
identified himself as Jose Guerrero. We therefore
will refer to him as Guerrero rather than
Guerrero-Perez.

/2 Guerrero raised the following additional claims
that are without merit: (1) The INS failed to
establish Guerrero’s alienage and removability.
The government submitted a copy of Record of
Deportable Alien (Form I-213), which is
considered a reliable document. See In re Ponce-
Hernandez, Interim Decision 3397 (BIA 1999).
Further, when the name on the Service’s Form I-
213 is identical to the respondent’s name, in the
absence of a denial, we can infer that the record
describes the respondent. See Matter of Ramirez-
Sanchez, Interim Decision 2820 (BIA 1980).
Guerrero has not presented any evidence that the
Form-213 does not concern him. Therefore, the
Service has established Guerrero’s removability
by clear, unequivocal, and convincing evidence.
(2) The record presented regarding his criminal
sexual abuse conviction was not properly
established. See Matter of Lopez, Interim
Decision 2346 (BIA 1975). (3) The IJ erred in
drawing a negative inference from his failure to
testify. See INS v. Lopez-Mendoza, 468 U.S. 1032,
1043-44 (1984). (4) Removal from the United
States constitutes cruel and unusual punishment.
See Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 491 (1999); United States ex
rel. Circella v. Sahli, 216 F.2d 33, 40 (7th Cir.
1954); Carlson v. Landon, 342 U.S. 524, 537
(1952); and Fong Yue Ting v. United States, 149
U.S. 698, 730 (1893). (5) His right to due
process was violated because the IJ, who
conducted his removal proceeding, also held his
bond hearing and therefore should have recused
himself. Guerrero has not provided any evidence
that the IJ improperly relied on information
gained at the bond hearing to render his decision
at the removal proceeding nor does the relevant
INS regulation, 8 C.F.R. sec. 3.15(d),
specifically articulate that an IJ who conducts
an alien’s bond hearing cannot conduct the
alien’s removal proceeding. To successfully make
out a due process claim, one has to demonstrate
actual prejudice, which Guerrero has not. See
Mojsilovic v. INS, 156 F.3d 743, 749 (7th Cir.
1998). (6) His due process rights were violated
because he was handcuffed during his removal
hearing. See United States v. Pallais, 921 F.2d
684, 686 (7th Cir. 1990), discussing how physical
restraints of a defendant in the courtroom is not
favored because the sight of shackles, cuffs, and
gags might leave a potentially negative
impression on a jury. In a deportation hearing,
the absence of a jury lessens the due process
concerns that the use of physical restraints may
undermine the fairness of the proceedings. And
(7) Section 242(a)(2)(C) of the INA, 8 U.S.C.
sec. 1252(a) (2)(C) violates the Constitution
because it precludes judicial review of the
actions of the executive and legislative
branches. See Yang v. INS, 109 F.3d 1185, 1196-97
(7th Cir. 1997), disapproved on other grounds by
Amercian-Arab Anti-Discrimination Comm., 525 U.S.
471. Further, we will not address whether
Guerrero’s behavior constitutes child abuse
according to 8 U.S.C. sec. 1227(a)(2) (E)(i)
because as discussed earlier, this issue is not
dispositive in this case.

/3 We accept that Guerrero’s conviction for criminal
sexual abuse would be considered sexual abuse of
a minor, as the term is defined in In re
Rodriguez-Rodriguez, Interim Decision 3411 (BIA
1999).
