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Victoria-Faustino v. Sessions

United States Court of Appeals, Seventh Circuit

August 1, 2017

Flaviano Victoria-Faustino, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued January 19, 2017

         Petition for Review of an Order of the Board of Immigration Appeals. No. A208-506-162

          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' 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.

         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 Board of Immigration Appeals 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 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.

         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 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.

         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 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.

         In 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 ...


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