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

No. 03-2351
WALTER LEOPOLDO ESPINOZA-FRANCO,
                                                          Petitioner,
                                 v.


JOHN ASHCROFT, Attorney General
of the United States,
                                                      Respondent.

                          ____________
              On Petition for Review of an Order of the
                  Board of Immigration Appeals.
                          No. A35-917-417
                          ____________
    ARGUED NOVEMBER 16, 2004—DECIDED DECEMBER 15, 2004
               PUBLISHED JANUARY 3, 2005Œ
                          ____________



    Before RIPPLE, EVANS, and SYKES, Circuit Judges.
  PER CURIAM. Walter Leopoldo Espinoza-Franco was con-
victed under an Illinois statute of felony sexual abuse of his
daughter. The Immigration and Naturalization Service


Œ
  This decision was originally issued on December 15, 2004, as an
unpublished order. By the court’s own motion, it is being reissued
as a per curiam opinion.
2                                                No. 03-2351

(now Department of Homeland Security) began proceedings
against him, arguing that he is removable because he com-
mitted “sexual abuse of a minor”—an aggravated felony
under the Immigration and Nationality Act. After a hear-
ing, an Immigration Judge ordered his removal, and the
Board of Immigration Appeals affirmed. Espinoza-Franco
admits having committed the crime but argues that it is not
an aggravated felony. Because the crime does constitute an
aggravated felony, we dismiss his petition for review of the
administrative proceedings for lack of jurisdiction.
  Espinoza-Franco was born in Ecuador. He was admitted
to the United States as a lawful permanent resident in 1978.
He is married and has three daughters. In 1996 Espinoza-
Franco pleaded guilty to one count of felony aggravated
criminal sexual abuse, see 720 ILCS 5/12-16(b), for fondling
his daughter Martha’s leg for his own sexual gratification
or arousal. There is no dispute that Martha was seven and
later eight years old at the time of the incidents giving rise
to the conviction. The indictment included three other counts
of aggravated criminal sexual abuse—including a count that
he caused Martha to touch his penis for the purpose of his
sexual gratification and arousal—as well as one count of
unlawful restraint of Martha. None of these other counts
was prosecuted. Espinoza-Franco served three years’
probation.
  In 1999 the INS began removal proceedings against
Espinoza-Franco for committing what it termed the aggra-
vated felony of “sexual abuse of a minor,” see 8 U.S.C.
§ 1101(a)(43)(A). Espinoza-Franco initially admitted remov-
ability and conceded that his crime constituted an aggra-
vated felony. He later moved to retract his concession.
Relying on Solorzano-Patlan v. INS, 

, 873-75
(7th Cir. 2000), which established a generic definition of
burglary because of disparity in state laws, Espinoza-Franco
argued that his conviction under Illinois’s relatively broadly
defined statute should not be considered sexual abuse of a
No. 03-2351                                                 3

minor under the Immigration and Nationality Act. The IJ
rejected his motion as Solorzano-Patlan involves the term
“crime of violence” and thus was not on point with Espinoza-
Franco’s crime of conviction.
  Ordering Espinoza-Franco’s removal as an aggravated
felon, the IJ also denied his request for asylum, withholding
of removal, and relief under the Convention Against
Torture. Despite denying relief, the IJ decided that the crime
was not a “particularly serious crime” of the kind that con-
stitutes a statutory exception to eligibility for withholding
of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). In May 2000
Espinoza-Franco filed a motion for reconsideration with the
Executive Office for Immigration Review, arguing that we
had recently changed the law defining “sexual abuse of a
minor,” by holding that consensual sex between an 18-year-
old alien and his 16-year-old girlfriend was not an aggra-
vated felony. See United States v. Cruz-Guevara, 

, 647 (7th Cir. 2000). Espinoza-Franco reasoned that his
crime must not be an aggravated felony if Cruz-Guevara’s
crime was not because, he maintained, Cruz-Guevara’s was
more serious since it involved penetration. The EOIR did
not decide that motion, but it was forwarded to the Board
of Immigration Appeals.
  In May 2000 Espinoza-Franco appealed the IJ’s order
determining that he was an aggravated felon and denying
withholding of removal and relief under the Convention
Against Torture. Espinoza-Franco argued that the term
“sexual abuse of a minor” must be defined by reference to 18
U.S.C. §§ 2243, 2246, to require the touching of “genitalia,
anus, groin, breast, inner thigh, or buttocks.” The INS
cross-appealed the IJ’s decision that Espinoza-Franco’s con-
viction was not a “particularly serious crime.”
  The BIA dismissed Espinoza-Franco’s appeal. The BIA
explained that we had already rejected the argument that
sexual abuse of a minor should be defined by reference to
4                                                No. 03-2351

any particular statute. See Lara-Ruiz v. INS, 

(7th Cir. 2001). The BIA added that Espinoza-Franco’s pro-
posed definition would “impose an unnecessarily restrictive
definition of ‘sexual abuse of a minor.’ ” Next, the BIA re-
jected Espinoza-Franco’s argument that he should not be
considered an aggravated felon under 

, because Espinoza-Franco’s crime of abusing his
seven-year-old daughter was much more severe than con-
sensual sex between the teenagers in Cruz-Guevara. The
BIA decided that Espinoza-Franco’s crime was an aggra-
vated felony under Matter of Rodriguez-Rodriguez, 22 I.
& N. Dec. 991, 995 (BIA 1999), which defined sexual abuse
of a minor by reference to 18 U.S.C. § 3509 to include “ ‘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.’ ” The BIA determined that Espinoza-
Franco failed to carry his burden under the Convention
Against Torture of establishing the likelihood that he would
be tortured if returned to Ecuador. Last, the BIA sustained
the government’s cross-appeal and determined that
Espinoza- Franco’s crime was a “particularly serious crime,”
reasoning that crimes of sexual abuse against children
involve a heightened risk of violence and noting that
Espinoza-Franco’s crime violated his daughter’s trust.
  In his petition for review, Espinoza-Franco argues that he
has not committed an aggravated felony because the Illinois
sexual abuse law that was the basis for his conviction is
broader than the definition of “sexual abuse of a minor”
under the Immigration and Nationality Act. Specifically, he
contends that Illinois’s law is an outlier, and he would not
have been convicted for “merely” rubbing a child’s leg under
most other states’ laws and the federal law criminalizing
sexual abuse of a minor, see 18 U.S.C. §§ 2241-48. Because
immigration law demands uniformity, see U.S. Const. art. I,
No. 03-2351                                                  5

§ 8, cl. 4, he urges us to enumerate basic elements of
the crime to craft a single definition consistent with the ma-
jority of states and the federal law. He proposes a definition
that would require touching “intimate parts,” like genitalia,
etc., and that would overrule the BIA’s definition (which
adopts § 3509 by reference).
  Congress has stripped us of jurisdiction to review an order
removing an alien who commits an “aggravated felony,” see
8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii), which is defined
to include “sexual abuse of a minor,” see 8 U.S.C.
§ 1101(a)(43)(A). Nevertheless, we retain jurisdiction to con-
sider the limited question of whether we have jurisdiction—
that is, whether Espinoza-Franco has been convicted of an
aggravated felony under § 1101(a)(43)(A). 

; Guerrero-Perez v. INS, 

, 730 (7th
Cir. 2001). Similarly, we retain jurisdiction over cases where
there has been a substantial violation of an alien’s constitu-
tional rights, although such an assertion of jurisdiction is
an “exceptional procedure” to be invoked sparingly. Lara-

(quoting Singh v. Reno, 

,
510 (7th Cir. 1999)).
  Espinoza-Franco’s arguments notwithstanding, we have
already declined to adopt a “formal definition” enumerating
the elements of “sexual abuse of a minor” under the Immi-
gration and Nationality Act. See United States v. Marti-
nez-Carillo, 

, 1104 (7th Cir. 2001) (comparing

with 

). Instead, we have held that Congress intended the
phrase “sexual abuse of a minor” to broadly incorporate all
acts that fall within the “ordinary, contemporary, and
common meaning of the words.” Martinez- 

; see 

; accord United
States v. Zavala-Sustaita, 

, 604-05 (5th Cir.
2000); United States v. Baron-Medina, 

, 1146-
47 (9th Cir. 1999). Indeed, we have already rejected
Espinoza-Franco’s argument that sexual abuse of a minor
6                                               No. 03-2351

must be defined by reference to §§ 2241-48 instead of
§ 3509. See 

.
  To determine whether a state conviction fits the
Immigration and Nationality Act’s definition of the crime,
we apply what is called the “categorical approach.” Under
this approach, we identify the crime at issue by looking at
the elements of the statute and the indictment together and
then decide whether that crime constitutes sexual abuse of
a minor. See Taylor v. United States, 

(1990);
Martinez-

; 

. Here, Espinoza-Franco was convicted under a statute
that criminalizes an act of sexual conduct on a family mem-
ber younger than 18. 720 ILCS 5/12-16(b). When the victim
is under 13, sexual conduct means touching any part of
the victim’s body for the purpose of sexual gratification or
arousal. 720 ILCS 5/12-12(e). Espinoza-Franco’s indictment
charges him with fondling his daughter Martha’s leg for his
own sexual gratification or arousal. Although the indict-
ment does not say that Martha was seven and later eight at
the time of the incidents giving rise to the charge and
conviction, we have approved looking beyond the indictment
to determine the victim’s age so long as doing so would not
require an evidentiary hearing. 

.
Martha’s age at the time of the crime is undisputed.
  This circuit and others have held that state statutes and
crimes similar to Espinoza-Franco’s constitute sexual abuse
of a minor. Cf. Flores-Leon v. INS, 

, 435, 439
n.4 (7th Cir. 2001) (touching any part of the body of a child
under 13-years-old for sexual arousal or gratification was
an aggravated felony, see 720 ILCS 5/12-16(c)(1)(I)). The
Ninth Circuit has held, for instance, that touching, with
lewd intent, any part of the body of a child under 14 con-
stitutes sexual abuse of a minor under the Immigration and
Nationality Act. 

; see also
Cedano-Viera v. Ashcroft, 

, 1065-67 (9th Cir.
2003); United States v. Pallares-Galan, 

,
No. 03-2351                                                    7

1099-1100 (9th Cir. 2004). Indeed, several circuits have not
required any physical contact at all. 

; see Bahar v. Ashcroft, 

, 1310-
13 (11th Cir. 2001) (holding that “taking indecent liberties”
with a child under 16 for sexual gratification constitutes
sexual abuse of a minor, even without physical contact).
Even misdemeanor crimes of sexual abuse on minors can
constitute aggravated felonies under § 1101(a)(43)(A).

, reh’g denied, 

(7th Cir. 2001); Matter of Small, 23 I. & N. Dec. 448,
450 (BIA 2002) (citing cases). Accordingly, Espinoza-Franco’s
crime fits squarely within the ordinary meaning of sexual
abuse of a minor, and fondling any part of Martha’s body
with a lewd intent seems particularly serious considering
her young age. See 

.
  Espinoza-Franco’s remaining arguments also lack merit.
First, he cannot show that the BIA’s decision violated the
constitutional rule of uniformity in immigration and natu-
ralization laws, see U.S. Const. art. I, § 8, cl. 4, or his equal
protection rights, because his crime fits the definition of sex-
ual abuse of a minor applied by federal courts. Next,
although Espinoza-Franco argues that the BIA committed
due process violations by impermissibly looking beyond the
charging documents to consider police reports alleging that
he abused his daughter Veronica in addition to abusing
Martha, the BIA simply noted those accusations and did not
factor them into its analysis, so there was no due process
violation.
  Because we hold Espinoza-Franco is an aggravated felon
whose petition fails to raise a substantial violation of his
constitutional rights, we DISMISS his petition for lack of
jurisdiction.
8                                        No. 03-2351

A true Copy:
      Teste:

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




               USCA-02-C-0072—1-3-05
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