In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐1784 FLAVIANO VICTORIA‐FAUSTINO, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A208‐506‐162 ____________________
ARGUED JANUARY 19, 2017 — DECIDED DATE AUGUST 1, 2017 ____________________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. 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’ imprison‐ ment for obstruction of justice in violation of 720 ILL. COMP. STAT. 5/31‐4. Fifteen years later, in 2015, he was arrested again. This time for driving while under the influence of alcohol. Be‐ 2 No. 16‐1784
cause Victoria‐Faustino is a Mexican national who had re‐ sided 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 in‐ formation to the police, which DHS determined constituted an aggravated felony under the Immigration and Nationality Act (“INA”) such that he was subject to expedited removal procedures. 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 In‐ tent”). 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 ag‐ gravated 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. No. 16‐1784 3
While the government is correct that the INA generally strips us of jurisdiction to consider an appeal of a Final Ad‐ ministrative Removal Order (“FARO”), we retain jurisdiction to determine whether the underlying conviction upon which the FARO is based is an aggravated felony. Therefore, alt‐ hough Victoria‐Faustino failed to respond to the Notice of In‐ tent, 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 peti‐ tion for review and remand to the Board of Immigration Ap‐ peals for further proceedings. I. BACKGROUND Flaviano Victoria‐Faustino is a Mexican national who en‐ tered this country illegally in 1991. He is the father of five chil‐ dren, 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 offic‐ ers in lieu of his own. For this, he was indicted for and ulti‐ mately pled guilty to obstruction of justice, in violation of 720 ILL. COMP. STAT. 5/31‐4. As a result, he was originally sen‐ tenced to 30 days’ of imprisonment followed by two years’ of probation. But, after two probation violations, he was resen‐ tenced to two years’ of imprisonment. 4 No. 16‐1784
Almost fifteen years after this incident, the government in‐ itiated removal proceedings after Victoria‐Faustino was ar‐ rested for driving under the influence of alcohol. He was sen‐ tenced 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 ob‐ struction of justice constituted an aggravated felony as de‐ fined 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 Re‐ quest Withholding of Removal.” He expressed that he feared persecution and torture upon his return to Mexico. On Febru‐ ary 12, 2016, DHS issued a FARO, which was served upon Vic‐ toria‐Faustino on February 16, 2016. Because Victoria‐Faustino indicated in response to the No‐ tice 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 attor‐ ney. Nonetheless, he agreed to continue the interview unrep‐ resented. 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. An‐ dres displayed a rifle and told Victoria‐Faustino that he in‐ tended to kill him. Andres, however, noted that he would not kill him in the United States, but rather would do so in Mex‐ ico, where he could “get away” with it. When Victoria‐ Faustino returned to Mexico in 1999, he heard that Andres No. 16‐1784 5
continued to speak of retribution. While he believed that An‐ dres worked to help people cross the United States’ border il‐ legally, 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 estab‐ lished that he had experienced past persecution or was at risk of future persecution upon removal to Mexico. Nor had Vic‐ toria‐Faustino suffered torture while in Mexico. Therefore, his application for asylum was denied. Victoria‐Faustino ap‐ pealed 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 final 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 re‐ moval 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 judi‐ ciary 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 6 No. 16‐1784
deprives us of jurisdiction to consider his arguments on ap‐ peal. We review jurisdictional and legal issues raised de novo. See id at 443. In Fonseca‐Sanchez, the petitioner had a criminal history that included convictions for retail theft, shoplifting, and con‐ tributing 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, Victoria‐Faustino’s petition is more analogous to Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), where the peti‐ tioner, like Victoria‐Faustino, failed to seek independent judi‐ cial review of the FARO within the allotted time. Instead, the Eke petitioner was referred for a credible‐fear interview to de‐ termine whether his fear of future persecution upon removal to Nigeria had any merit. The petitioner filed a timely petition for review of the BIA’s final decision denying him asylum. We concluded that this allowed us to review his claims that his convictions did not classify as aggravated felonies under the INA. In doing so, we stated, “we retain jurisdiction to deter‐ mine whether we have jurisdiction—that is to determine whether an alien’s criminal conviction is indeed an ‘aggra‐ vated felony,’ under the INA … .” Id. at 378 (quoting Lara‐Ruiz v. I.N.S., 241 F.3d 934, 939 (7th Cir. 2001)) (internal quotation marks omitted). No. 16‐1784 7
While here, Victoria‐Faustino failed to file a response to the Notice of Intent and refused to sign the form, he did indi‐ cate that he wished to contest withholding. Because he indi‐ cated that he feared persecution upon removal, a reasonable fear determination interview was conducted, like in Eke. Alt‐ hough 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 expe‐ dited 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.1 Id.; see also Issaq v. Holder, 617 F.3d 962, 966–97 (7th Cir. 2010) (“Notwithstanding the super‐ ficially absolute nature of [§ 1252(a)(2)(c)] ... we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony.”) (em‐ phasis added); Lopez v. Lynch, 810 F.3d 484, 488 (7th Cir. 2016) (“Since we review de novo whether an alien was convicted of an aggravated felony, it is irrelevant to our analysis that the
1 The dissent contends that “straightforward exhaustion principles
should dispose of this case.” Dissent at 14. 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, “[b]ecause 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 re‐ tain 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 Board. 8 No. 16‐1784
BIAʹs opinion addressed the issue without definitively ruling on the matter.”).2 And, although the dissent contends that this would open the door for any legal challenge that was not raised to the Board to be heard on appeal, we disagree. Our holding today is narrow: the INA does not deprive an appellate court of ju‐ risdiction to consider whether or not a petitioner is properly within the expedited proceedings. A. Illinois Conviction is Not an Aggravated Fel‐ ony The INA provides that any alien convicted of an aggra‐ vated felony at any point after admission into the United States is deportable. 8 U.S.C. § 1227(a)(2)(A)(iii). The Act ren‐ ders an alien removable based on the nature of his conviction, not based upon his actual conduct. Esquivel‐Quintana v. Ses‐ sions, 137 S. Ct. 1562, 1567 (2017). Under the INA, an alien who is convicted of an aggravated felony “shall be conclusively presumed to be deportable from the United States.” 8 U.S.C. § 1228(c). Section 238(b) of the INA permits a final removal order to issue without a hearing. Id. § 1228(b)(4). These expe‐ dited removal proceedings commence when formal notice is served on the alien. Id.; see also 8 C.F.R. § 238.1(b)(2)(i) (“Re‐ moval proceedings under section 238(b) of the Act shall com‐ mence upon personal service of the Notice of Intent upon the
2 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. No. 16‐1784 9
alien … .”); Eke, 512 F.3d at 376–77 (describing expedited re‐ moval proceedings under the INA). While the INA does not define the term “aggravated fel‐ ony,” 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 sub‐ ordination 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 com‐ mitted 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 ex‐ pedited removal proceedings based upon his 2000 Illinois conviction for obstruction of justice pursuant to 720 ILL. COMP. STAT. 5/31‐4.3 On appeal, Victoria‐Faustino contends, for the first time, that this conviction does not constitute an aggra‐ vated felony, as defined by 8 U.S.C. § 1101(a)(43)(S). The Illi‐ nois statute under which he was convicted states, in pertinent part, that “[a] person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or de‐ fense of any person, he or she knowingly … furnishes false information.” 720 ILL. COMP. STAT. 5/31‐4. To determine whether this provision of Illinois law consti‐ tutes the aggravated felony of obstruction of justice under the INA, we must engage in what has been coined the “categori‐ cal approach.” See Esquivel‐Quintana, 137 S. Ct. at 1567–68.
3 The Notice of Intent incorrectly states that Victoria‐Faustino was
convicted on June 17, 2003. The petitioner concedes that he was not preju‐ diced by this error. 10 No. 16‐1784
This requires us to look at the statute of conviction, and not the specific facts underlying it, to determine whether the stat‐ ute “categorically fits within the generic federal definition of the corresponding aggravated felony.” Id. at 1563 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)) (internal quota‐ tion 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. To do so, we must presume that the state convic‐ tion “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‐Quin‐ tana, 137 S. Ct. at 1568 (quoting Johnson v. United States, 556 U.S. 133, 137 (2010)) (internal quotation marks omitted). Unlike other crimes enumerated as aggravated felonies, this provision does not equate a crime relating to the obstruc‐ tion of justice to a particular federal crime. Cf. 8 U.S.C. § 1101(a)(43)(B) (an “‘aggravated felony’ means … illicit traf‐ ficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in sec‐ tion 924(c) of Title 18)”). Rather, it merely states that an “ag‐ gravated felony means … an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a wit‐ ness, for which the term of imprisonment is at least one year.” Id. § 1101(a)(43)(S). The petitioner seems to argue that this provision is ambiguous and, that we should provide defer‐ ence to the Board’s interpretation of the phrase, a point the government concedes. It is our practice to give deference to the Board’s reasonable interpretation of what constitutes an No. 16‐1784 11
aggravated felony under the INA.4 Negrete‐Rodriguez v. Mukasey, 518 F.3d 497, 501 (7th Cir. 2008) (”Ordinarily, we re‐ view de novo the classification of an offense as an aggravated felony, giving deference to the [Boardʹs] reasonable interpre‐ tation of the INA.”) (quoting Sharashidze v. Gonzales, 480 F.3d 566, 568 n.4 (7th Cir. 2007)) (internal quotation marks omit‐ ted); but see Denis v. Att’y Gen. of U.S., 633 F.3d 201 (3d Cir. 2011) (finding that the phrase “relating to obstruction of jus‐ tice” is unambiguous, rendering deference inappropriate). 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 (B.I.A. 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 co‐ operate in the process of justice or might otherwise so coop‐ erate.” Id. at 892. Victoria‐Faustino asserts that this contem‐ plates the existence of an ongoing proceeding. The govern‐ ment, 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 ex‐ istence 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
4 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 prece‐ dent that dictates that we give deference to the Board’s interpretation of what constitutes an aggravated felony under the INA. Nor does the dis‐ sent engage in the categorical approach mandated by Esquivel‐Quintana, 137 S. Ct. at 1567–68. 12 No. 16‐1784
are crimes that relate to the obstruction of justice that crimi‐ nalize 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 con‐ viction 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 constitu‐ tional 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 re‐ manded it to the Board for further proceedings. Id. at 825. But, the court did note that it did “not hold … that ‘ongoing pro‐ ceedings’ is the only permissible anchor for the ‘process of jus‐ tice.’” Id. at 820. In light of the Ninth Circuit’s decision to remand the peti‐ tion to the Board for further proceedings, we will not defer to the In re Valenzuela Gallardo articulation of what constitutes a crime relating to the obstruction of justice under the INA. See Cruz v. Sessions, No. 15‐60857, 2017 WL 2115209, at *1 (5th Cir. May 12, 2017) (remanding petition to the Board for further proceedings because the Board relied on “the now‐vacated Valenzuela Gallardo decision … .”) (unpub.). This leaves us with the definition as articulated in In re Espinoza‐Gonzalez. Because the Illinois statute under which Victoria‐Faustino was convicted does not require interference with the proceed‐ No. 16‐1784 13
ings of a tribunal, it cannot be said that the statute categori‐ cally fits within the meaning of the INA’s definition of ob‐ struction of justice. Therefore, we must remand this petition to the Board for further proceedings. We caution that we do not, and need not, determine at this juncture whether Victo‐ ria‐Faustino is removable under the INA. Rather, we hold that Victoria‐Faustino was improperly placed in the expedited re‐ moval proceedings based upon his 2000 Illinois conviction under 720 ILL. COMP. STAT. 5/31‐4. III. CONCLUSION The petitioner’s petition for review is GRANTED and the pe‐ tition is REMANDED for further proceedings.
14 No. 16‐1784
MANION, Circuit Judge, dissenting. Petitioner Flaviano Vic‐ toria‐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 proceed‐ ings against him based on the 2000 conviction. For the first time in this petition, Victoria‐Faustino argues that his obstruc‐ tion of justice conviction doesn’t qualify as an aggravated fel‐ ony 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 Administra‐ tive Removal Order, he did not exhaust his available admin‐ istrative 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 adminis‐ trative 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),1 it nevertheless “usually fore‐ closes a petitioner from raising an issue in federal court that
1 The court says that we must entertain Victoria‐Faustino’s petition be‐
cause the exhaustion requirement is not strictly speaking jurisdictional. No. 16‐1784 15
was not raised before the immigration tribunal,” Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011). Indeed, we have thus far recognized only two concrete exceptions to the rule: (1) where the government has waived or forfeited the exhaustion argument; and (2) where the agency has raised and discussed the issue on its own. Id. Neither exception applies here, as the government has ar‐ gued 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 im‐ portantly, the exceptions that do exist are either procedural or directly related to the purposes of the exhaustion require‐ ment, 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 mis‐ take to create an open‐ended catch‐all exception that is neither
Maj. Op. at 7 n.1. But that does not follow. Even though we may entertain unexhausted 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 “[n]ot‐ withstanding the superficially absolute nature of [§ 1252(a)(2)(C)],” we may decide the aggravated felony question, is inapposite. As I explain be‐ low, I agree that Section 1252(a)(2)(C) is not absolute; it is limited by the questions‐of‐law exception of Section 1252(a)(2)(D). But this case involves the independent exhaustion provision of Section 1252(d)(1), not the gen‐ eral jurisdiction‐stripping statute and exception at issue in Issaq. We should simply apply the exhaustion requirement. 16 No. 16‐1784
procedural nor related to the purposes of exhaustion. Cf. Banks v. Chi. Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014) (dis‐ cussing the “narrow operation” of the catch‐all provision of Fed. R. Civ. P. 60(b), which provides relief from final judg‐ ments “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. Gon‐ zales, 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 peti‐ tioner had committed an aggravated felony). However, nine days after Immigration and Customs Enforcement (ICE) is‐ sued 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, challeng‐ ing 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, be‐ cause 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. No. 16‐1784 17
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 jurisdictional statutes: (1) the statute stripping the federal courts of jurisdiction to review final orders of removal except for “constitutional claims or questions of law raised upon a petition for review,” 8 U.S.C. § 1252(a)(2)(C)–(D); and (2) the exhaustion requirement, 8 U.S.C. § 1252(d)(1). In effect, the court says that we have jurisdiction here because Victoria‐ Faustino presents a question of law, without regard to whether he has properly presented that question by first ex‐ hausting his administrative remedies. That is incorrect. Properly understood, the exhaustion requirement is a sepa‐ rate jurisdictional limitation that limits our power to hear even challenges that raise questions of law. A look at the statutory language should suffice to demon‐ strate 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 hav‐ ing 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 or‐ dinarily 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 lim‐ ited by Section 1252(d)(1). That provision says that, even 18 No. 16‐1784
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 ques‐ tions 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 mean‐ ingless. After all, the requirement only applies to reviews of final orders of removal, and we only have jurisdiction to con‐ duct such reviews if the petitioner presents a question of law. So every challenge to a final order of removal that we can en‐ tertain 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.2 We don’t generally read entire subsections of statutes out of existence, and we shouldn’t do so here. See Corley v. United States, 556 U.S. 303, 314 (2009) (“one of the most basic
2 The court claims that its holding is narrow, referring only to juris‐
diction 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 fi‐ nal 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 require‐ ment 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. No. 16‐1784 19
interpretive canons” is that a statute should be construed “so that no part will be inoperative or superfluous, void or insig‐ nificant” (internal quotation marks omitted)). The court is also incorrect that Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), dictates a different result. As our sister circuit observed, “[i]n Eke, the court failed to mention, let alone cite, the exhaustion provision.” Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1288 (11th Cir. 2014). Eke shouldn’t be considered bind‐ ing authority on a statute which it did not cite.3 Moreover, even if Eke were an exhaustion case, it would be distinguish‐ able for two reasons. First, the government’s concession that we had jurisdiction in that case is enough under our prece‐ dents to waive the exhaustion requirement. And second, to the extent the Eke court considered exhaustion principles at all, it arguably concluded that the petitioner had done enough to exhaust his remedies below. See Eke, 512 F.3d at 378 (the court was “satisfied that Eke has been trying to raise the ar‐ gument that his convictions, for various reasons, should not automatically lead to his removal”). In my view, Eke is inap‐ posite and this case is governed by general principles of ex‐ haustion of remedies.4
3 Moreover, in the nine years since Eke was decided, we have never
cited it for the proposition that a petitioner may avoid the exhaustion re‐ quirement 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. 4 To the extent Eke does stand for the proposition that we have juris‐
diction to decide any legal challenge in a petition without regard to ex‐ haustion, 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). 20 No. 16‐1784
In summary, I would conclude that we lack jurisdiction be‐ cause 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 fel‐ ony. The relevant definitional subsection says that an aggra‐ vated 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 con‐ cern; to pertain; refer; to bring into association with or con‐ nection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (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 of‐ ficer or prosecutor ... .” Black’s Law Dictionary 1105 (7th ed. 1999). The Illinois obstruction of justice statute under which Vic‐ toria‐Faustino was convicted provides that “[a] person ob‐ structs 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 Illi‐ nois statute almost exactly tracks the general definition, and No. 16‐1784 21
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.” III. CONCLUSION This is a simple case. Petitioner Flaviano Victoria‐Faustino has presented an argument that the Department of Homeland Security improperly classified his prior conviction as an ag‐ gravated felony. But he failed to raise that argument until this petition. Therefore, 8 U.S.C. § 1252(d)(1) and this court’s ex‐ haustion‐of‐remedies precedent preclude our review. Moreo‐ ver, even if we had jurisdiction, the statute under which Vic‐ toria‐Faustino was convicted certainly is one “relating to ob‐ struction of justice.” Thus, we should either dismiss this peti‐ tion for lack of jurisdiction or deny it on the merits. I respectfully dissent.