Alvarado-Fonseca v. Holder
631 F.3d 385
| 7th Cir. | 2011Background
- Alvarado-Fonseca, a Mexican citizen and lawful permanent resident since 1973, was convicted of armed robbery in Illinois in 1984.
- DHS initiated removal proceedings in 2007, charging removability under three INA provisions: aggravated felony relating to theft, aggravated felony relating to crime of violence, and firearm offense.
- IJ found Alvarado-Fonseca removable on all three grounds, and denied cancellation of removal; BIA later dismissed his appeal.
- Alvarado-Fonseca argued the IIRIRA’s aggravated felony definition could not be applied retroactively to his 1984 conviction.
- Alvarado-Fonseca also argued under ADAA that the 1988 enactment’s temporal limitation preserved by ADAA § 7344(b) barred removal, and invoked ex post facto concerns after Padilla.
- The Seventh Circuit ultimately denied the petition for review, holding exhaustion barred consideration of the ADAA-based argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of ADAA argument | Alvarado-Fonseca contends ADAA § 7344(b) bars removal. | Government: he failed to raise before BIA; exhaustion required. | Exhaustion defeats review of ADAA-based challenge. |
| Retroactivity of IIRIRA definition of aggravated felony | IIRIRA’s retroactive application cannot apply to pre-1996 conviction. | BIA and circuit precedent permit retroactive definition application to pre-enactment convictions. | Not reach subsequent merits due to exhaustion; underlying retroactivity not decided here. |
| Ex post facto claim | Padilla calls into question retroactive criminal-law like consequences in removal. | Removal is civil; ex post facto does not apply to deportation. | Removal remains civil; Padilla does not rewrite ex post facto ruling. |
Key Cases Cited
- Flores-Leon v. INS, 272 F.3d 433 (7th Cir. 2001) (IIRIRA § 321(a) retroactivity applies to aggravated felonies regardless of conviction date)
- Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir. 2010) (ADA A/IMMAct interplay with ADAA § 7344(b) not overriding; debates retroactivity)
- Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006) (IIRIRA retroactivity of aggravated felony definition)
- Ghaffar v. Mukasey, 551 F.3d 651 (7th Cir. 2008) (exhaustion requirement and administrative remedies in removal appeals)
- Zeqiri v. Mukasey, 529 F.3d 364 (7th Cir. 2008) (BIA interpretation and exhaustion considerations in immigration cases)
- Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008) (administrative review and BIA role in interpreting INA)