January 19, 2017
for Review of an Order of the Board of Immigration Appeals.
Flaum, Manion, and Williams, Circuit Judges.
Williams, Circuit Judge.
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 ILL. COMR 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 was subject to
expedited removal procedures.
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.
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.
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 Board of Immigration
Appeals for further proceedings.
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.
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 ILL.
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.
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).
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 Request Withholding of Removal." He
expressed that he feared persecution and torture upon his
return to Mexico. On February 12, 2016, DHS issued a FARO,
which was served upon Victoria-Faustino on February 16, 2016.
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.
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.
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 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.
Fonseca-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 ...