Lead Opinion
During a traffic stop, Flaviano Victoria-Faustino provided the police with a false identity. As a result, he ultimately served a term of two years’ imprisonment for obstruction of justice in violation of 720 III. Comp. Stat. 5/31-4. Fifteen years later, in 2015, he was arrested again. This time for driving while under the influence of alcohol. Because Victoria-Faustino is a Mexican national who had resided in this country without authorization for almost 24 years at the time, the Department of Homeland Security (“DHS”) initiated removal proceedings. These proceedings were based upon his 2000 conviction for providing false information to the police, which DHS determined constituted an aggravated felony under the Immigration and Nationality Act (“INA”) such that he
Victoria-Faustino was notified of DHS’s decision to initiate removal proceedings when he received a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). Although he indicated that he wished to contest and/or to request withholding of removal, he did so based upon his fear of persecution and torture upon removal to Mexico. He never challenged DHS’s determination that he was removable based upon his 2000 Illinois conviction. Based upon the boxes he checked on the Notice of Intent, he was interviewed by an Asylum Officer, who determined that while Victoria-Faustino was credible, he had not established that he was entitled to asylum.
On appeal, Victoria-Faustino argues that his 2000 Illinois conviction for obstruction of justice does not constitute an aggravated felony under the INA. Because the conviction is not an aggravated felony, he contends that he was improperly placed in expedited removal proceedings. The government, however, asserts that we lack jurisdiction to consider any of the arguments in Victoria-Faustino’s petition as he failed to file a response to the Notice of Intent.
While the government is correct that the INA generally strips us of jurisdiction to consider an appeal of a Final Administrative Removal Order (“FARO”), we retain jurisdiction to determine whether the underlying conviction upon which the FARO is based is an aggravated felony. Therefore, although Victoria-Faustino failed to respond to the Notice of Intent, we may still consider his arguments that his underlying conviction does not constitute an aggravated felony. Because we find that Victoria-Faustino’s 2000 conviction was not properly classified as an aggravated felony, we grant the petition for review and remand to the Department of Homeland Security for further proceedings.
I. BACKGROUND
Flaviano Victoria-Faustino is a Mexican national who entered this country illegally in 1991. He is the father of five children, all of whom live in this country and are United States citizens. Although he returned to Mexico to visit his family in 1999, he re-entered this country illegally once more in January of 2000. Since that time he has resided in the United States without ever obtaining legal authorization to do so.
Victoria-Faustino has had a handful of interactions with law enforcement. Central to this appeal is a 2000 traffic stop, during which he provided his brother’s name to police officers in lieu of his own. For this, he was indicted for and ultimately pled guilty to obstruction of justice, in violation of 720 III. Comp. Stat. 5/31-4. As a result, he was originally sentenced to 30 days’ of imprisonment followed by two years’ of probation. But, after two probation violations, he was resentenced to two years’ of imprisonment.
Almost fifteen years after this incident, the government initiated removal proceedings after Victoria-Faustino was arrested for driving under the influence of alcohol. He was sentenced to 180 days’ imprisonment. On January 25, 2016, DHS issued a Notice of Intent pursuant to 8 U.S.C. § 1228(b). DHS concluded that Victoria-Faustino’s 2000 conviction for obstruction of justice constituted an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(S).
The Notice of Intent was personally served upon Victoria-Faustino, who refused to sign or acknowledge its receipt. At the time, he was not represented by counsel, but he checked a box on the form indicating his desire to “Contest and/or
Because Victoria-Faustino indicated in response to the Notice of Intent that he feared persecution and torture, he was interviewed by an Asylum Officer. Although at the outset of the interview Victoria-Faustino stated that he had obtained counsel, he did not have a phone number to reach his attorney. Nonetheless, he agreed to continue the interview unrepresented. During the interview, Victoria-Faustino stated that in 1995, he was confronted by a man named Andres who threatened to kill him because of his involvement with a woman with whom Andres had also had a relationship. Andres displayed a rifle and told Victoria-Faustino that he intended to kill him. Andres, however, noted that he would not kill him in the United States, but rather would do so in Mexico, where he could “get away” with it. When Victoria-Faustino returned to Mexico in 1999, he heard that Andres continued to speak of retribution. While he believed that Andres worked to help people cross the United States’ border illegally, he did not believe that he was affiliated with a cartel or gang.
Based upon this interview, the Asylum Officer concluded that while Victoria-Faustino was credible, he had not established that he had experienced past persecution or was at risk of future persecution upon removal to Mexico. Nor had Victoria-Faustino suffered torture while in Mexico. Therefore, his application for asylum was denied. Victoria-Faustino appealed the Asylum Officer’s findings. On March 21, 2016, an Immigration Judge upheld the Officer’s determination that he was not eligible for asylum. This appeal followed.
II. ANALYSIS
As a threshold matter, we must determine whether we have jurisdiction to address the merits of this petition. Section 1252(d) provides that a court may only review a Anal order of removal if the alien has exhausted all administrative remedies available as of right. 8 U.S.C. § 1252(d). Further, the INA strips the judiciary of the authority to review “any final order of removal against an alien who is removable by reason of having committed” an aggravated felony. See 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii); see also Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir. 2005) (“The INA ... strips the judiciary of authority to review any final order of removal against an alien who is removable by reason of having committed an aggravated felony.”). Therefore, relying upon Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007), the government argues that the petitioner’s failure to respond to the Notice of Intent deprives us of jurisdiction to consider his arguments on appeal. We review jurisdictional and legal issues raised de novo. See id at 443.
In Fonsecar-Sanchez, the petitioner had a criminal history that included convictions for retail theft, shoplifting, and contributing to the delinquency of a minor. DHS issued a Notice of Intent, to which the petitioner failed to respond. We found that this deprived us of jurisdiction to consider her petition for review of the Citizen and Immigration Service’s denial of a U-Visa. Id. at 444. But, in Fonseca-Sanchez, the petitioner did not challenge whether she was removable based upon her criminal convictions. Id. at 443. This key distinction is what renders Fonseca-Sanchez inapplicable to the present case.
Rather, Vietoria-Faustino’s petition is more analogous to Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), where the peti
While here, Victoria-Faustino failed to file a response to the Notice of Intent and refused to sign the form, he did indicate that he wished to contest withholding. Because he indicated that he feared persecution upon removal, a reasonable fear determination interview was conducted, like in Eke. Although Victoria-Faustino failed to file a timely response to the Notice of Intent, Eke makes clear that we retain jurisdiction to determine whether the petitioner is properly within the expedited proceedings contemplated by Section 238(b) of the INA, i.e., whether he or she has been convicted of an aggravated felony as defined by the INA.
And, although the dissent contends that this would open the door for any legal challenge that was not raised to the DHS to be heard on appeal, we disagree. Our holding today is narrow: the INA does not deprive an appellate court of jurisdiction to consider whether or not a petitioner is properly within the expedited proceedings.
A. Illinois Conviction is Not an Aggravated Felony
The INA provides that any alien convicted of an aggravated felony at any point after admission into the United
While the INA does not define the term “aggravated felony,” it does provide a list of criminal offenses that qualify as such. See 8 U.S.C. § 1101(a)(43). One such qualifying offense is “an offense relating to obstruction of justice, perjury or subordination of perjury, or bribery of a witness, for which the term of imprisonment is at least one year....” Id. § 1101(a)(43)(S). Our review of whether the petitioner committed an aggravated felony, and as such was properly in the expedited proceedings, is de novo. Lopez, 810 F.3d at 488 (citing Eke, 512 F.3d at 378).
DHS concluded that Victoria-Faustino was subject to expedited removal proceedings based upon his 2000 Illinois conviction for obstruction of justice pursuant to 720 III. Comp. Stat. 5/31—4.
To determine whether this provision of Illinois law constitutes the aggravated felony of obstruction of justice under the INA, we must engage in what has been coined the “categorical approach.” See Esquivel-Quintana, 137 S.Ct. at 1567-68. This requires us to look at the statute of conviction, and not the specific facts underlying it, to determine whether the statute “categorically fits within the generic federal definition of the corresponding aggravated felony.” Id. at 1563 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)) (internal quotation marks omitted). “Generic” means that the offense “must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense.... ” Moncrieffe, 569 U.S. at 190, 133 S.Ct. 1678. To do so, we must presume that the state conviction “rested upon ... the least of th[e] acts criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime.” Esquivel-Quintana, 137 S.Ct. at 1568 (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)) (internal quotation marks omitted).
Unlike other crimes enumerated as aggravated felonies, this provision does not equate a crime relating to the obstruction of justice to a particular federal crime. Cf. 8 U.S.C. § 1101(a)(43)(B) (an “ ‘aggravated felony’ means ... illicit trafficking in a
Yet, the parties dispute how the Board has interpreted the phrase. Victoria-Faustino contends that we must rely upon the Board’s decision in In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc). There, the Board noted that for a crime to relate to the “obstruction of justice,” it must “have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others who cooperate in the process of justice or might otherwise so cooperate.” Id. at 892. Victoria-Faustino asserts that this contemplates the existence of an ongoing proceeding. The government, however, asks us to rely upon the Board’s decision in In re Valenzuela Gallardo, 25 I. & N. Dec. 838, 841 (BIA 2012).
In In re Valenzuela Gallardo, the Board clarified that the existence of an ongoing proceeding is not an essential element of an “offense relating to the obstruction of justice.” 25 I. & N. Dec. 838, 841 (BIA 2012). Therefore, the Board noted that there are crimes that relate to the obstruction of justice that criminalize conduct “that significantly precedes the onset of any official proceeding, even of an investigative nature.” Id. at 842-43. After the Board concluded that the petitioner’s conviction was an aggravated felony, he appealed to the Ninth Circuit.
On appeal, the Ninth Circuit concluded that although the Board is entitled to deference to its definition of “relating to obstruction of justice,” it could not defer to the definition as articulated in In re Valenzuela Gallardo. See Valenzuela Gallardo v. Lynch, 818 F.3d 808, 822 (9th Cir. 2016). The court found that the new interpretation of the phrase raised “grave constitutional concerns because it uses an amorphous phrase ‘process of justice’—without telling us what that phrase means.” Id. Therefore, the court granted the petition for review and remanded it to the Board for further proceedings. Id. at 825. But, the court did note that it did “not hold ... that ‘ongoing proceedings’ is the only permissible anchor for the ‘process of justice.’ ” Id. at 820.
III. CONCLUSION
The petitioner’s petition for review is Granted and the petition is Remanded for further proceedings.
. The dissent contends that “straightforward exhaustion principles should dispose of this case.” Dissent at 876. But, as the dissent concedes, we have on a number of occasions stated that the exhaustion requirement is not a "jurisdictional rule in the strict sense that the Supreme Court has emphasized that we follow.” Id. (citing Issaq, 617 F.3d at 968). Rather, “[bjecause the rule is non-jurisdictional, it is subject to waiver, forfeiture, and other discretionary considerations.” Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (emphasis added). As the exhaustion requirement is not a jurisdictional rule and because we have been clear that we continue to retain the right to determine whether an individual is properly within the expedited proceedings, we must entertain Victoria-Faustino’s arguments on appeal even though he did not raise them to the DHS.
. The same is not true of Victoria-Faustino’s two legal arguments that DHS lacks jurisdiction to issue removal orders and that the Department of Justice’s regulations implementing 8 U.S.C. § 1228(b) are ultra vires acts. Because these claims were never presented to the administrative agency below, they were not exhausted and, therefore, are not properly before this court.
. The Notice of Intent incorrectly states that Victoria-Faustino was convicted on June 17, 2003. The petitioner concedes that he was not prejudiced by this error.
. The dissent contends that we should engage in our own review of the statute’s language. But, in doing so, it fails to address our prior precedent that dictates that we give deference to the Board’s interpretation of what constitutes an aggravated felony under the INA. Nor does the dissent engage in the categorical approach mandated by Esquivel-Quintana, 137 S.Ct. at 1567-68.
Dissenting Opinion
dissenting.
Petitioner Flaviano Victoria-Faustino entered the United States illegally in 1991. In 2000, he was convicted of obstruction of justice in Illinois after he told a police officer during a traffic stop that he was his brother. After he was arrested again in 2015, the Department of Homeland Security initiated expedited removal proceedings against him based on the 2000 conviction. For the first time in this petition, Victoria-Faustino argues that his obstruction of justice conviction doesn’t qualify as an aggravated felony that would permit expedited removal. Because he failed to raise that argument to the agency, and failed to respond to the Department’s Notice of Intent to Issue a Final Administrative Removal Order, he did not exhaust his available administrative remedies. Therefore, we lack jurisdiction to hear his petition and should dismiss it on that ground. And even if I were to find that we had jurisdiction, I would conclude that Victoria-Faustino’s 2000 conviction qualifies as an aggravated felony and thus deny his petition on that basis. I respectfully dissent.
I. JURISDICTION
Straightforward exhaustion principles should dispose of this case. Congress has told us that we may only review a final order of removal once “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). While it is true that the exhaustion requirement is not “a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow,” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010),
Neither exception applies here, as the government has argued exhaustion and the proceedings below never addressed whether Victoria-Faustino’s 2000 conviction was properly classified as an aggravated felony. While we may also excuse failure to exhaust for “other discretionary reasons,” Duarte-Salagosa v. Holder, 775 F.3d 841, 846 (7th Cir. 2014), we have never described what those reasons might be. More importantly, the exceptions that do exist are either procedural or directly related to the purposes of the exhaustion requirement, which serves to give the immigration tribunals the first crack at addressing an argument and to give us reasoning to review. See Arobelidze, 653 F.3d at 517. Thus, it would be a mistake to create an open-ended catch-all exception that is neither procedural nor related to the purposes of exhaustion. Cf. Banks v. Chi. Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014) (discussing the “narrow operation” of the catch-all provision of Fed. R. Civ. P. 60(b), which provides relief from final judgments “for any other reason that justifies relief’). There are no extraordinary circumstances present here that would justify creating such an exception. Cf. id. This is an ordinary case wherein the petitioner has failed to preserve an argument for appeal. Section 1252(d)(1) thus prohibits us from considering Victoria-Faustino’s petition.
If that weren’t enough, we held in Fonseca-Sanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007), that failure to respond to a Notice of Intent deprived us of jurisdiction to hear a petition for review. In that case, the petitioner also failed to respond to a Notice of Intent (as here, issued on the ground that the petitioner had committed an aggravated felony). However, nine days after Immigration and Customs Enforcement (ICE) issued a Final Administrative Removal Order, the petitioner sought interim relief from the Citizenship and Immigration Service (CIS) under the “U” visa statute and requested that ICE stay her removal. Two days before she received a denial from CIS, she filed a petition for review in this court, challenging the removal order. We dismissed the petition for lack of jurisdiction on the ground that she had not raised her “U” visa claim in a response to the Notice of Intent. Id. at 444. We held that the petitioner had to make that claim in the response even though ICE had no authority to grant the “U” visa relief, because it could have stayed her removal or declined to issue a final removal order. Id. In short, the failure to raise a particular claim in a response to a Notice of Intent deprived us of power to adjudicate that claim. The same should be true here.
The court tries to distinguish Fonseca-Sanchez on the ground that the petitioner in that case never argued that his conviction wasn’t an aggravated felony, but that is irrelevant. The court concludes otherwise by mixing two independent jurisdic
A look at the statutory language should suffice to demonstrate this. Section 1252(a)(2)(C) is a jurisdiction-stripping statute—it deprives us of power to “review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of [Title 8].” Section 1227(a)(2)(A)(iii) covers the class of aggravated felonies, so ordinarily we would lack jurisdiction to review a challenge to a final removal order on these grounds. However, 8 U.S.C. § 1252(a)(2)(D) contains an exception for “constitutional claims or questions of law” raised in a petition. So, standing alone, Section 1252(a)(2)(D) would permit us to decide the question presented here.
But that subsection doesn’t stand alone; it is further limited by Section 1252(d)(1). That provision says that, even among the limited class of challenges to final removal orders that we may generally entertain (ones that present questions of law), we still may not hear a petition unless the petitioner has exhausted all available administrative remedies. Thus, the statutory scheme limits our jurisdiction in these cases to questions of law that have been properly presented to the agency. While Victoria-Faustino’s petition presents a question of law, his argument was not properly presented below, so we still lack jurisdiction.
It would make little sense otherwise. If the “questions of law” exception to the jurisdiction-stripping statute overrides the exhaustion requirement, then the latter would be meaningless. After all, the requirement only applies to reviews of final orders of removal, and we only have jurisdiction to conduct such reviews if the petitioner presents a question of law. So every challenge to a final order of removal that we can entertain will necessarily present a question of law (or we wouldn’t have jurisdiction in the first place). Thus, under the court’s reasoning, the exhaustion requirement would never apply.
The court is also incorrect that Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008),
In summary, I would conclude that we lack jurisdiction because Victoria-Faustino failed to exhaust his administrative remedies and none of the recognized exceptions to exhaustion applies. He cannot avoid the exhaustion requirement by simply presenting a question of law in his petition. Therefore, we should dismiss the petition.
II. MERITS
Although I believe we lack jurisdiction, I will respond briefly to the court’s argument that Victoria-Faustino’s 2000 conviction was not properly classified as an aggravated felony. The relevant definitional subsection says that an aggravated felony includes “an offense relating to obstruction of justice.” 8 U.S.C. § 1101(a)(43)(S). The Supreme Court has told us that the ordinary meaning of “relating to” “is a broad one,” meaning “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)). And, since the statute lacks a definition of “obstruction of justice,” we use the common definition: “Interference with the orderly administration of law and justice, as by giving false information to or withholding evidence from a police officer or prosecutor....” Black’s Law Dictionary 1105 (7th ed. 1999).
The Illinois obstruction of justice statute under which Victoria-Faustino was convicted provides that “[a] person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he or she knowingly ... furnishes false information.” 720 Ill. Comp. Stat. 5/31-4. The definition of obstruction of justice in the Illinois statute almost exactly tracks the general definition, and it certainly “relates” to that definition. Thus, we should not need to consult any contradictory decisions of the Board of Immigration Appeals. We should simply apply the statute as it is written. We should conclude that violation of the Illinois statute is a crime “relating to obstruction of justice.”
This is a simple case. Petitioner Flavi-ano Victoria-Faustino has presented an argument that the Department of Homeland Security improperly classified his pri- or conviction as an aggravated felony. But he failed to raise that argument until this petition. Therefore, 8 U.S.C. § 1252(d)(1) and this court’s exhaustion-of-remedies precedent preclude our review. Moreover, even if we had jurisdiction, the statute under which Victoria-Faustino was convicted certainly is one “relating to obstruction of justice.” Thus, we should either dismiss this petition for lack of jurisdiction or deny it on the merits.
I respectfully dissent.
. The court says that we must entertain Victoria-Faustino's petition because the exhaustion requirement is not strictly speaking jurisdictional. Maj. Op. at 873 n.l. But that does not follow. Even though we may entertain unex-hausted petitions in certain instances, this case is not one of them. The court does not explain what sort of discretionary considerations should permit us to waive the requirement, and I can think of none that would be present here. Thus, the general rule should apply.
Moreover, the court’s citation of Issaq for the proposition that "[njotwithstanding the
. The court claims that its holding is narrow, referring only to jurisdiction over challenges to placement in expedited removal. But I do not see how that can be true. This petition is a challenge to a final removal order, and the court's reasoning necessarily applies to all challenges to final removal orders. As I explain above, we have limited jurisdiction to consider such petitions anyway. But the court’s holding makes it so that any presentation of a question of law will override the exhaustion requirement of Section 1252(d)(1). In any case, the court's holding will permit us to consider many more unexhausted arguments in immigration petitions in the future.
. Moreover, in the nine years since Eke was decided, we have never cited it for the proposition that a petitioner may avoid the exhaustion requirement by presenting a question of law in his petition. One would think that if such a rule existed, we would have discovered it before today.
. To the extent .Eke does stand for the proposition that we have jurisdiction to decide any legal challenge in a petition without regard to exhaustion, I believe that it was wrongly decided for the reasons stated by the Eleventh Circuit in Malu, 764 F.3d at 1288, and the Eighth Circuit in Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 (8th Cir. 2011).