ESCOTO-CASTILLO v. Napolitano
658 F.3d 864
| 8th Cir. | 2011Background
- Escoto-Castillo, a Mexican citizen, entered the U.S. in 1995 and overstayed a six-month visit.
- In October 2002, he pleaded guilty in Minnesota state court to third-degree burglary.
- The sentencing order stayed execution of a one-year term, placed him on 364 days of probation, required 3 days in jail (time served) and 17 days on electronic monitoring.
- DHS treated the 2002 burglary as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and issued a Form I-851 notice of removal.
- Escoto-Castillo admitted deportability and waived rights to seek review or relief on the Form I-851; DHS issued a Final Administrative Removal Order and deported him to Mexico.
- He challenged the removal order in a petition for judicial review, arguing the 2002 conviction was not an aggravated felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2002 burglary conviction qualified as an aggravated felony | Escoto-Castillo argues the sentence was 364 days with a stay, not a year or more. | DHS contends the term of imprisonment controls despite suspension; the conviction thus qualifies as aggravated felony. | Precluded; court denies on exhaustion and record grounds |
| Whether the petition for review was barred by exhaustion of administrative remedies | Escoto-Castillo asserts an exception for inadequate administrative remedies due to post-removal state-order change. | Government argues exhaustion was required; no adequate remedy shown because state-order change occurred after removal. | Denied; exhaustion failure precludes merits review |
Key Cases Cited
- Lukowski v. I.N.S., 279 F.3d 644 (8th Cir.2002) (limits review to administrative record and governs post-removal reassessment)
- Gonzalez v. Chertoff, 454 F.3d 813 (8th Cir.2006) (exhaustion requirement governs review of removal orders)
- Wijono v. Gonzales, 439 F.3d 868 (8th Cir.2006) (exhaustion and procedural requirements for review)
- Bustillos-Sosa v. Holder, 384 Fed.Appx. 714 (10th Cir.2010) (recognizes exhaustion principle in expedited removal context)
- Sutariya v. U.S. Att'y Gen., 299 Fed.Appx. 949 (11th Cir.2008) (exhaustion considerations in removal proceedings)
- Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir.2007) (administrative-remedies adequacy in removal context)