                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-2661
OTAR SHARASHIDZE,
                                                      Petitioner,
                              v.

ALBERTO R. GONZALES,
                                                     Respondent.
                        ____________
                 Petition for Review of an Order
              of the Board of Immigration Appeals.
                         No. A77-857-926
                        ____________
  ARGUED FEBRUARY 16, 2007—DECIDED MARCH 16, 2007
                   ____________


 Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
  FLAUM, Circuit Judge.           In October 2002, Otar
Sharashidze, an asylee from Georgia, was convicted of
indecent solicitation of a sex act, an Illinois misdemeanor
under 720 ILCS 5/11-14.1. Sharashidze’s conviction trig-
gered removal proceedings against him in immigration
court. In January 2006, an immigration judge (“IJ”)
determined that Sharashidze’s offense constituted an
aggravated felony within the meaning of the Immigration
and Nationality Act (“INA”) because it involved a minor,
thus rendering Sharashidze deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) (“Any alien who is convicted of
an aggravated felony at any time after admission is
deportable.”). Accordingly, the IJ terminated Sharashidze’s
2                                                No. 06-2661

asylee status and denied his pending application for
adjustment of status. The Board of Immigration Appeals
(“BIA”) affirmed the IJ’s decision, and Sharashidze
appeals. For the following reasons, we deny the petition for
review.


                     I. BACKGROUND
  Otar Sharashidze is a native and citizen of Georgia. On
March 31, 1999, he legally entered the United States as
a non-immigrant. On November 25, 1999, the Immigration
and Naturalization Service granted him asylum.1 In July
2002, Sharashidze was arrested and charged with indecent
solicitation of a sex act, a misdemeanor offense under
720 ILCS 5/11-14.1.2 The criminal complaint against
Sharashidze stated that he “offered Evelyn M. Aguila[,] a
person not his spouse[,] mother of [child’s name,] a child
under 13 yrs of age, $20.00 USC, to allow him to have
sexual contact with same for the purpose of his sexual
gratification or arousal.” The complaint listed the com-
plainant’s name as “Evelyn Aguila for [child’s name].” On
October 18, 2002, the trial court convicted Sharashidze of


1
  Documents related to Sharashidze’s asylum grant have
been filed under seal.
2
  The Illinois statute pursuant to which Sharashidze was
charged provides:
    Any person who offers a person not his or her spouse any
    money, property, token, object, or article or anything of
    value to perform any act of sexual penetration as defined
    in Section 12-12 of this Code, or any touching, or fondling
    of the sex organs of one person by another person for the
    purpose of sexual arousal or gratification, commits the
    offense of solicitation of a sexual act.
720 ILCS 5/11-14.1(a).
No. 06-2661                                                  3

the charged offense. He was sentenced to 18 months of
probation, which he successfully completed on April 16,
2004.
  On July 21, 2005, the Department of Homeland Security
(“DHS”) issued Sharashidze a Notice to Appear, alleging
that Sharashidze’s conviction rendered him deportable
under 8 U.S.C. § 1227(a)(2)(A)(iii) because he commit-
ted an aggravated felony as defined by 8 U.S.C.
§ 1101(a)(43)(A) (classifying sexual abuse of a minor as
an aggravated felony). It also charged that Sharashidze
was deportable under 8 U.S.C. § 1227(a)(2)(E)(I) because
he committed a crime of child abuse.
  Sharashidze contested the charges of deportability,
arguing that his criminal offense did not involve a minor.
In rebuttal, DHS filed copies of the criminal complaint,
a certified statement of conviction, and a May 26, 2005
Illinois Appellate Court decision that affirmed
Sharashidze’s conviction and summarized the trial testi-
mony.3 The IJ considered the evidence, including the



3
  In People v. Sharashidze, No. 1-03-2102 (Ill. App. Ct. Order
June 29, 2005), the Illinois Appellate Court summarized the
testimony of complaining witness Evelyn M. Aguila. Accord-
ing to the summary, Aguila and her seven-year-old son
entered Sharashidze’s convenience store on July 26, 2002.
After Aguila engaged Sharashidze in small talk, he gave
her son some free candy. Aguila informed Sharashidze she
was job hunting, and Sharashidze asked if she needed
money. After Aguila replied “no, thank you,” Sharashidze
told her he’d give her $20, wrote the amount on a scratch pad,
said “have sex,” and motioned to himself and Aguila’s son.
Sharashidze then said, “Please, please, $20,” but Aguila
refused, and Sharashidze continued pleading for “just two
minutes.” Aguila fled the store with her son, and Sharashidze
                                                 (continued...)
4                                             No. 06-2661

Illinois Appellate Court decision, and concluded that
Sharashidze’s conviction constituted an aggravated felony
because the victim was a minor. The IJ also terminated
Sharashidze’s asylee status, finding that there were “no
countervailing factors that militate against termination.”
As a result of his terminated asylee status, Sharashidze
was no longer eligible for discretionary relief he had
requested under 8 U.S.C. § 1159(b), which permits
asylees to adjust their status to that of permanent resi-
dent.
  Sharashidze appealed the IJ’s decision to the BIA,
claiming that the IJ improperly relied on the Illinois
Appellate Court decision, the IJ improperly found that
Sharashidze was convicted of soliciting a minor, and the
IJ should have considered his eligibility for adjustment of
status. The BIA affirmed the IJ’s decision, but based its
determination that the victim of Sharashidze’s offense
was a minor on the complaint alone. Sharashidze appeals
the BIA’s order.


                     II. DISCUSSION
  Sharashidze makes two primary claims on appeal. First,
he contends that his conviction should not have been
classified as an aggravated felony because the govern-
ment offered insufficient evidence that the offense in-
volved a minor. Second, Sharashidze argues that the IJ
denied him due process by failing to conduct a hearing
on his eligibility for discretionary relief.




3
  (...continued)
followed them around the corner. Aguila contacted the
police, who subsequently arrested Sharashidze. Id. at 2-3.
No. 06-2661                                                  5

    A. Aggravated Felony Classification
  The IJ found, and the BIA agreed, that Sharashidze’s
conviction constituted 1) sexual abuse of a minor,
2) attempted sexual abuse of a minor, and 3) child
abuse—all aggravated felonies within the meaning of the
INA. Sharashidze challenges each finding based on the
same argument: that the record of conviction did not
clearly identify the intended target of his solicitation.4
  Where, as here, the BIA supplements the IJ’s decision,
we review the two decisions together. Gjerazi v. Gonzales,
435 F.3d 800, 807 (7th Cir. 2006). We must uphold the
BIA’s determination that the conviction involved a minor
so long as it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”


4
  Sharashidze also contends that, even if his offense did
involve a minor, his conviction should not be categorized as
an aggravated felony. Ordinarily, we review de novo the
classification of an offense as an aggravated felony, giving
deference to the BIA’s reasonable interpretation of the INA.
See Marquez v. INS, 105 F.3d 374, 378 (7th Cir. 1997).
However, any significant inquiry into the issue is foreclosed
by our decision in Gattem v. Gonzales, which held that
solicitation of sexual contact with a minor in violation of the
statute under which Sharashidze was convicted constitutes
an aggravated felony. 412 F.3d 758, 765 (7th Cir. 2005).
Sharashidze attempts to distinguish Gattem because the
petitioner in that case directly solicited a minor whereas
Sharashidze is accused of soliciting a minor through the
child’s mother. Although he correctly observes that direct
solicitation of a minor presents an inherent risk of exploita-
tion because minors as a group have a less developed sense of
judgment, see Gattem, 412 F.3d at 765, the presence of an
intermediary for the solicitation is a dubious basis for
distinction.
6                                                No. 06-2661

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotation and citation omitted).
  The statute that Sharashidze violated is divisible,
meaning that it covers both solicitation of sexual acts
from adults (conduct that is not an aggravated felony
under the INA) and solicitation of sexual acts from minors
(conduct that constitutes an aggravated felony under
Gattem). Where a statute is divisible, courts may look to
the record of conviction to determine the factual basis of
the offense. See Gattem, 412 F.3d at 765. Under the INA,
the record of conviction includes, among other things, the
complaint, the judgment, and any document or record
prepared by, or under the direction of, the court in which
the conviction was entered that indicates the existence
of a conviction. 8 U.S.C. § 1229a(c)(3)(B). Sharashidze
argues that the record of conviction does not reveal
whether Sharashidze solicited a sex act from Evelyn
Aguila or her minor son.5
  The complaint identifies the complainant as “Evelyn M.
Aguila for [son’s name].” This language indicates that
the actual complainant, i.e., the victim, was the minor
child. Moreover, although the complaint’s charge—that
Sharashidze “offered Evelyn M Aguila . . . mother of
[child’s name,] a child under 13 years of age, $20.00 USC,
to allow him to have sexual contact with same . . .”—uses


5
   Sharashidze also contends that the IJ’s consideration of the
Illinois Appellate Court decision was improper. The BIA did
not rely on the Illinois Appellate Court decision because it
found that the complaint alone supported a finding that
Sharashidze’s conviction “involved a minor.” Because we
agree with the BIA that the complaint provided sufficient
evidence that Sharashidze targeted a minor, we need not
address whether the INA’s definition of “record of conviction”
encompasses appellate court decisions.
No. 06-2661                                                7

the ambiguous phrase “with same,” any logical interpreta-
tion of the phrase reveals that it refers to the minor child.
First, within the sentence, the phrase’s closest antecedent
is “[child’s name].” Second, if the complaint charged
Sharashidze with soliciting a sexual act from Evelyn
Aguila, it would be completely unnecessary to mention
her minor son. We therefore conclude that substantial
evidence supports the BIA’s finding that the minor child
was the intended victim of the solicitation.


  B. Due Process Claim
  Because Sharashidze’s conviction constituted an aggra-
vated felony under the INA, this Court retains only
limited jurisdiction to review the BIA’s final order of
removal. See 8 U.S.C. § 1252(a)(2)(C) (stating that no
court shall have jurisdiction to review any final order of
removal against an alien who is removable for having
committed an aggravated felony). Specifically, this Court
may consider constitutional claims and questions of law
raised in proper petitions for review. See 8 U.S.C.
§ 1252(a)(2)(D); Hernandez-Alvarez v. Gonzales, 432 F.3d
763, 765 (7th Cir. 2005).
  Sharashidze raises a due process claim, alleging that
the IJ improperly denied him the opportunity to present
evidence of countervailing equities that could be weighed
against DHS’s interest in deporting aggravated felons.
See, e.g., In re K-A-, 23 I & N Dec. 661, 665-66 (BIA 2004)
(recognizing that an IJ may grant permanent resident
status to an asylee convicted of an aggravated felony if
the asylee demonstrates sufficient equities). Specifically,
Sharashidze claims that the IJ denied him due process
by concluding that there were no countervailing equities
without conducting a subsequent hearing in which
Sharashidze could offer evidence of such equities.
8                                                No. 06-2661

  At the threshold, we must determine whether
Sharashidze exhausted his due process claim in the
immigration court. Although petitioners generally do not
have to exhaust due process claims administratively, they
must raise such claims below when alleging procedural
errors correctable by the BIA. See Capric v. Ashcroft, 355
F.3d 1075, 1087 (7th Cir. 2004).
   Sharashidze argues that he raised his due process claim
below and the BIA rejected it. He directs us to a sentence
in his petition to the BIA seeking “remand to the im-
migration judge for reconsideration of the discretionary
determination to terminate appellant’s asylum status
rather than accept an application for adjustment of sta-
tus.” Upon closer inspection of his BIA petition, however,
it is clear that Sharashidze did not complain to the Board
about the lack of an additional hearing. Rather, his
petition alleged that the IJ misconstrued the evidence
and misunderstood the nature of his conviction. The
petition did not refer to the IJ’s failure to hold a hearing on
the issue of countervailing equities, nor did it identify
evidence of countervailing equities that Sharashidze
would have presented at a hearing. In short, Sharashidze
did not exhaust his due process claim, which means that
this Court cannot review it. See 8 U.S.C. § 1252(d)(1)
(noting that a court may review an agency’s final order
only if the alien has exhausted all administrative rem-
edies as of right).


                     III. CONCLUSION
  For the foregoing reasons, we DENY the petition for
review and DISMISS Sharashidze’s due process claim for
lack of jurisdiction.
No. 06-2661                                         9

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—3-16-07
