Victoria-Faustino v. Sessions
865 F.3d 869
7th Cir.2017Background
- Victoria‑Faustino, a Mexican national who entered the U.S. unlawfully in 1991 and reentered in 2000, pleaded guilty in Illinois (2000) to obstruction of justice for giving a false name during a traffic stop and ultimately served two years in prison.
- In 2015 he was arrested for DUI; DHS issued a Notice of Intent to Issue a Final Administrative Removal Order (FARO), treating the 2000 obstruction conviction as an INA "aggravated felony" that justified expedited removal under 8 U.S.C. § 1228(b).
- He did not dispute removability to DHS on the aggravated‑felony ground; he checked boxes asserting fear of persecution/torture and therefore received a credible‑fear/asylum interview, which was denied by an Asylum Officer and an Immigration Judge.
- On petition for review, Victoria‑Faustino argued that his Illinois obstruction statute (720 Ill. Comp. Stat. 5/31‑4) does not categorically fall within the INA aggravated‑felony definition for offenses "relating to obstruction of justice."
- The government argued the court lacked jurisdiction because he failed to respond to the Notice of Intent; the majority held the court retains jurisdiction to decide whether the underlying conviction is an aggravated felony and found the Illinois statute does not categorically match the INA definition, granting review and remanding to DHS.
Issues
| Issue | Victoria‑Faustino's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review his claim despite failing to respond to the Notice of Intent | Court may review whether the underlying conviction is an aggravated felony; exhaustion does not bar that question | Failure to respond to the Notice of Intent (and failure to exhaust) deprives the court of jurisdiction | Court has jurisdiction to determine whether the conviction is an aggravated felony for purposes of expedited removal (majority) |
| Whether his Illinois conviction for obstruction of justice is an INA aggravated felony under § 1101(a)(43)(S) | Illinois statute does not require interference with a tribunal or ongoing proceeding and thus does not categorically fit the INA definition | The statute "relates to obstruction of justice" and therefore qualifies as an aggravated felony | The Illinois statute, as written, does not categorically fit the INA "obstruction of justice" provision; conviction cannot sustain expedited removal (majority) |
| Whether deference should be given to the Board of Immigration Appeals’ later broad construction (In re Valenzuela Gallardo) | Deference to the Board is appropriate only to the extent the Board’s interpretation survives review; the court will not defer to Valenzuela Gallardo after Ninth Circuit concerns | The Board’s broader interpretation supports DHS’s classification | Court declines to defer to Valenzuela Gallardo and instead relies on the narrower Espinoza‑Gonzalez framing; remand required |
| Whether other procedural/constitutional challenges (agency jurisdiction; regs ultra vires) can be considered | These arguments were raised on appeal | DHS/DOJ contend they were not properly presented below | Court declines to consider those claims because they were not exhausted before the agency |
Key Cases Cited
- Esquivel‑Quintana v. Sessions, 137 S. Ct. 1562 (2017) (mandates categorical approach comparing state statute to generic federal definition)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (explains categorical approach and presumption regarding least conduct criminalized)
- Fonseca‑Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007) (failure to respond to Notice of Intent can bar judicial review)
- Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) (court retains jurisdiction to decide whether petitioner’s conviction is an aggravated felony despite expedited process)
- Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) (court may decide whether crime was properly characterized as an aggravated felony)
- Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) (rejected Board’s broader Valenzuela Gallardo interpretation and remanded, raising doubts about that BIA formulation)
- Negrete‑Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008) (discusses deference to BIA on aggravated‑felony classifications)