In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1917
C LEMENTE A LVARADO-FONSECA,
Petitioner,
v.
E RIC H. H OLDER, JR.,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A034-223-857
A RGUED D ECEMBER 3, 2010—D ECIDED JANUARY 6, 2011
Before F LAUM, R OVNER and E VANS, Circuit Judges.
F LAUM , Circuit Judge. An immigration judge ordered
Clemente Alvarado-Fonseca, a Mexican citizen, removed
to Mexico on the ground that his 1984 state court con-
viction for armed robbery constituted an aggravated
felony, a deportable offense. On appeal to the Board of
Immigration Appeals (“BIA”), Alvarado-Fonseca argued
that he was not removable because the definition of
aggravated felony in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) could not
be applied retroactively. The BIA dismissed the appeal.
2 No. 10-1917
Alvarado-Fonseca now argues that a provision in the
Anti-Drug Abuse Act of 1988 (“ADAA”) precludes his
deportation. Alvarado-Fonseca waived that argument
by failing to raise it before the BIA. In light of that
failure to exhaust, we must deny the petition.
I. Background
A. Factual Background
Alvarado-Fonseca, a citizen of Mexico, was admitted to
the United States as a lawful permanent resident alien on
April 27, 1973, at the age of ten. In 1984, a twenty-one-year-
old Alvarado-Fonseca was convicted of armed robbery
in Illinois state court, and was sentenced to six-years
in prison. Now 47 years old, Alvarado-Fonseca has since
married a United States citizen, with whom he has two
children.
On April 2, 2007, the Department of Homeland Security
commenced removal proceedings against Alvarado-
Fonseca by filing a Notice to Appear (“NTA”) against him
in the Immigration Court. The NTA charged that
Alvarado-Fonseca was removable from the United States
under three provisions of the Immigration and Nationality
Act (“INA”): (1) section 237(a)(2)(A)(iii) for conviction of
an aggravated felony relating to a theft or burglary
offense as defined in § 101(a)(43)(G) of the INA (see 8
U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G)); (2) section
237(a)(2)(A)(iii) for conviction of an aggravated felony
relating to a crime of violence as defined in § 101(a)(43)(F)
of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F));
and (3) section 237(a)(2)(C) for a conviction that in-
No. 10-1917 3
volved the use or possession of a firearm (see 8 U.S.C.
§ 1227(a)(2)(C)).
B. Statutory Background
The thrust of Alvarado-Fonseca’s argument in this
Court turns on the interplay of several amendments to
the federal immigration laws. A short discussion of each
of the relevant enactments is helpful.
1. The Anti-Drug Abuse Act of 1988
Congress first made conviction for an “aggravated
felony” a deportable offense in 1988, when it amended
the INA through the Anti-Drug Abuse Act of 1988
(“ADAA”). See ADAA § 7344(a). At that time, the statu-
tory definition of “aggravated felony” did not include
theft offenses or crimes of violence. Section 7344(b) of
the ADAA provided that the amendments applied only
“to any alien who has been convicted, on or after the
date of the enactment of this Act, of an aggravated fel-
ony.” Therefore, under the ADAA, only aliens convicted
of an aggravated felony on or after November 18, 1988
were deportable. In his petition, Alvarado-Fonseca
relies on the temporal restriction set forth in ADAA
§ 7344(b) for his position that he cannot be deported for
his 1984 conviction.
2. The Immigration Act of 1990
In 1990, Congress enacted the IMMAct, § 501(a) of
which broadened the definition of “aggravated felony” to
4 No. 10-1917
include any crime of violence for which a term of im-
prisonment of at least 5 years is imposed. The new defini-
tion applied only to crimes committed on or after Novem-
ber 29, 1990. See IMMAct § 501(b).
Section 602(c) of the IMMAct provided:
SAVINGS PROVISION.—Notwithstanding the
amendments made by this section, any alien who was
deportable because of a conviction (before the date
of the enactment of this Act) of an offense referred to
in paragraph (15), (16), (17), or (18) of section 241(a)
of the Immigration and Nationality Act, as in effect
before the date of the enactment of this Act, shall be
considered to remain so deportable. Except as other-
wise specifically provided in such section and sub-
section (d), the provisions of such section, as amended
by this section, shall apply to all aliens described in
subsection (a) thereof notwithstanding that (1) any
such alien entered the United States before the date
of enactment of this Act, or (2) the facts, by reason of
which an alien is described in such subsection, oc-
curred before the date of the enactment of this Act.
See 104 Stat. 5081-82 (1990).
3. The Immigration Technical Corrections Act of 1994
On October 25, 1994, Congress again broadened the
definition of “aggravated felony” to include theft offenses
for which the term of imprisonment imposed is at least
five years. See ITCA § 222(a). The ITCA provided that
“[t]he amendments made by . . . section [222(a)] shall
No. 10-1917 5
apply to convictions entered on or after the date of en-
actment of this Act.” ITCA § 222(b).
4. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996
Congress revisited the definition of “aggravated felony”
again in 1996 with the enactment of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”). See IIRIRA § 321(a). Section 321(b) of
IIRIRA amended the INA to read: “Notwithstanding
any other provision of law (including any effective
date), [the amended definition of aggravated felony]
applies regardless of whether the conviction was
entered before, on, or after September 30, 1996.” Section
321(c) of IIRIRA states that “[t]he amendments made
by this section shall apply to actions taken on or after
the date of the enactment of this Act, regardless of when
the conviction occurred.”
C. Procedural Background
In the proceedings before the Immigration Judge (“IJ”),
Alvarado-Fonseca contended that he had previously
appeared before an IJ and had been granted a waiver
of deportation; however he could produce no evidence
of such a waiver. Alvarado-Fonseca also applied for
cancellation of removal. On April 14, 2009, the IJ con-
cluded in a written opinion that Alvarado-Fonseca was
removable on all three charges based on his conviction for
armed robbery. Specifically, the IJ found that armed
robbery “certainly is an offense relating to a theft offense,
6 No. 10-1917
identified in § 101(a)(43)(G) of the INA.” Furthermore, the
IJ determined that armed robbery constitutes a crime of
violence as defined in INA § 101(a)(43)(F) because it
involves a clear risk of harm to an individual. Finally, the
IJ found that Alvarado-Fonseca was removable pursuant to
§ 237(a)(2)(C) because he had been convicted of a crime
that involved the use or possession of a firearm. The IJ
dismissed Alvarado-Fonseca’s application for cancel-
lation of removal, concluding that he was ineligible for
cancellation because he had been convicted of an aggra-
vated felony. See 8 U.S.C. § 1229b(a)(3) (barring a perma-
nent resident alien from eligibility for cancellation of
removal if he has been convicted of an aggravated felony).
On appeal of the IJ’s decision to the BIA, Alvarado-
Fonseca argued that he was not removable pursuant to
§ 237(a)(2)(C) because he had not been convicted of
a firearm offense.1 Alvarado-Fonseca also maintained
1
Alvarado-Fonseca offered no explanation for his position
that armed robbery should not be considered a convic-
tion for “using, owning, possessing, or carrying, . . . any
weapon . . . in violation of any law” under INS § 237(a)(2)(C),
and we can think of none. See 8 U.S.C. § 1227(a)(2)(C). However,
contrary to the government’s request, we cannot deny the
petition on the ground that Alvarado-Fonseca is removable
pursuant to INS § 237(a)(2)(C). While the BIA noted that the IJ
found Alvarado-Fonseca to be removable under § 237(a)(2)(C),
it did not rely on § 237(a)(2)(C) as a basis for its ruling. Nor
did the BIA adopt the IJ’s opinion. Therefore, the BIA’s deci-
sion is “the exclusive focus of our review.” Moab v. Gonzales,
500 F.3d 656, 659 (7th Cir. 2007). Under SEC v. Chenery Corp.,
(continued...)
No. 10-1917 7
that, because he was not deportable at the time he was
convicted, he cannot be removed today. Specifically,
Alvarado-Fonseca argued that the IIRIRA’s expanded
the definition of “aggravated felony”—enacted in 1996—
could not be applied to his 1984 conviction because
(1) there is a presumption against retroactive applica-
tion, and (2) retroactive application would violate his
due process rights.
On March 17, 2010, the BIA dismissed Alvarado-
Fonseca’s appeal, rejecting Alvarado-Fonseca’s argument
that the IIRIRA’s aggravated felony provision should not
apply retroactively. For that conclusion the BIA relied in
part on our decision in Flores-Leon v. INS, 272 F.3d 433
(7th Cir. 2001), which we discuss further below. The
BIA did not determine whether Alvarado-Fonseca was
removable under § 237(a)(2)(C), noting that even if he
was not, he had failed to establish that he was not other-
wise removable under § 237(a)(2)(A)(iii).
II. Discussion
Generally, we lack jurisdiction to review an order
removing an alien who has been convicted of committing
1
(...continued)
332 U.S. 194 (1947), we cannot uphold the BIA’s ruling on
“a ground that is not articulated—or at least discernable—in
the decision itself.” Atunnise v. Mukasey, 523 F.3d 830, 838
(7th Cir. 2008). Because the BIA did not rely on § 237(a)(2)(C)
in dismissing Alvarado-Fonseca’s appeal, we cannot deny the
petition on that basis.
8 No. 10-1917
an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(C);
Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir. 2009). How-
ever, pursuant to 8 U.S.C. § 1252(a)(2)(D), we have juris-
diction to review questions of law and constitutional
claims. Here, Alvarado-Fonseca raises legal questions
regarding the interpretation of the aggravated felony
provisions of the INA and a constitutional claim
founded on the ex post facto clause. Therefore, we have
jurisdiction to consider the petition. While we review
questions of law and constitutional claims de novo,
we defer to the BIA’s reasonable interpretation of the
INA, “so long as it is ‘consistent with the language
and purposes of the statute.’ ” Gattem v. Gonzales, 412
F.3d 758, 763 (7th Cir. 2005).
A. Exhaustion
In the instant petition, Alvarado-Fonseca effectively
concedes that he is removable under our decision in Flores-
Leon v. INS, 272 F.3d 433 (7th Cir. 2001), but argues that
we instead should follow the Ninth Circuit’s decision in
Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir. 2010). As
the discussion below demonstrates, contrary to Alvarado-
Fonseca’s interpretation, the two cases are not neces-
sarily in conflict. More importantly, Alvarado-Fonseca’s
failure to raise before the BIA the arguments addressed
in Ledezma-Galicia, which he effectively adopts in his
petition, precludes us from considering this line of rea-
soning.
In Flores-Leon, we squarely rejected the argument
Alvarado-Fonseca advanced before the BIA—namely, that
No. 10-1917 9
the IIRIRA’s definition of aggravated felony cannot be
applied retroactively. The petitioner in Flores-Leon had
been convicted in 1994 of a crime that was not classified
as an aggravated felony until 1996. We concluded that
the amended definition could be applied to the earlier
conviction, holding that “the amended definition of ‘ag-
gravated felony’ [set forth in IIRIRA § 321(a)] should
be applied to any and all criminal violations committed
by an alien after his or her entry into the United States,
regardless of whether they were committed before or
after the amended definition went into effect.” 272 F.3d
at 439. We reasoned that Congress had “clearly mani-
fested an intent to apply the amended definition of ‘ag-
gravated felony’ retroactively” in IIRIRA § 321(b), which
states that “[n]otwithstanding any other provision of
law (including any effective date), [the amended defini-
tion of aggravated felony] applies regardless of whether
the conviction was entered before, on, or after Septem-
ber 30, 1996.” Id.
Ledezma-Galicia involved a petitioner who, like Alvarado-
Fonseca and unlike Flores-Leon, was convicted before
Congress enacted the ADAA in 1988, thereby making
conviction for an “aggravated felony” a deportable
offense for the first time. 599 F.3d at 1058. Ledezma-Galicia
argued that the temporal limitation set forth in ADAA
§ 7344(b) remains in effect and prohibits his removal. Id.
at 1061. The government responded that the ADAA’s
temporal limitation on the aggravated felony ground of
deportation did not survive the later passage of the
IMMAct in 1990 and the IIRIRA in 1996. Specifically, the
government argued that IMMAct § 602(c) and IIRIRA
10 No. 10-1917
§ 321(b) override ADAA § 7344(b). Id. In a split decision,
the Ninth Circuit rejected both of the government’s
arguments and found that the petitioner could not be
deported.
With respect to IIRIRA § 321 (the only provision at issue
in Flores-Leon), the Ninth Circuit stated that “it is settled
law that the . . . definitional statute, IIRIRA § 321, which
defines certain crimes as aggravated felonies, applies
regardless of the date of the crime.” Id. at 1074 (quoting
Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.
2006)) (emphasis in original). That is precisely what we
said in Flores-Leon. The Ledezma-Galicia court went on to
explain that, under Ninth Circuit precedent, “the IIRIRA’s
effective date provisions do not control ‘the sub-
stantive immigration consequences of IIRIRA’ (emphasis
added)—even when those consequences turn on an
aggravated felony conviction.” Id. (quoting Lopez-Castel-
lanos, 437 F.3d at 852-54). In other words, the Ninth
Circuit has held that while the definition of “aggravated
felony” applies to all aliens, that does not neces-
sarily mean that all aliens convicted of an aggravated
felony can be deported as a result. We have never
explicitly considered whether the consequences of being
an aggravated felon, such as removability, should be
considered separately from the definition. Flores-Leon
may be read as implicitly holding that both the definition
and consequences of being an aggravated felon apply
retroactively. But even if that is the case, such that our
case law is in conflict with the Ninth Circuit’s, we cannot
resolve that tension here, for the reasons below.
No. 10-1917 11
The Ledezma-Galicia court went on to conclude that
nothing in the IIRIRA affected the temporal limitation set
forth in ADAA § 7344(b). 599 F.3d at 1074-75. It also
found that IMMAct § 602(c) does not override ADAA
§ 7344(b). In reaching that conclusion, the Ninth Circuit
refused to defer to the BIA’s contrary interpretation
that the second sentence of IMMAct § 602(c) overrides
ADAA § 7344(b)). Id. at 1062-73. Based on those deter-
minations, the Ninth Circuit found that Ledezma-
Galicia was not removable as an aggravated felon.
Thus, the decision on which Alvarado-Fonseca now
relies turns on ADAA § 7344(b), and its relationship to
IIRIRA § 321(b) and IMMAct § 602(c). By relying on
Ledezma-Galicia, Alvarado-Fonseca is asking us to con-
sider whether ADAA § 7344(b) remains in effect.2 But
Alvarado-Fonseca did not raise the potential relevance
2
We have not addressed that issue. Both the BIA and a number
of our sister circuits have considered it, and have reached
varying conclusions based on the interplay of the ADAA, the
IMMAct, and the IIRIRA. See Lewis v. INS, 194 F.3d 539, 543
n.5 (4th Cir. 1999) (deferring to BIA’s interpretation that the
second sentence of IMMAct § 602(c) overrides ADAA § 7344(b));
Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000) (same); Bell v.
Reno, 218 F.3d 86 (2d Cir. 2000) (rejecting BIA’s interpretation
that IMMAct § 602(c) overrides ADAA § 7344(b), but never-
theless concluding that petitioner convicted before 1988 is
deportable under INA § 237(a)(2)(A)(iii) as an alien convicted
of an aggravated felony after entry into the United States,
because IMMAct § 602(d) overrides ADAA § 7344(b)); Ledezma-
Galicia, 599 F.3d 1055 (concluding that neither IMMAct § 602
nor IIRIRA § 321(b) overrides ADAA § 7344(b)).
12 No. 10-1917
of either ADAA § 7344(b) or IMMAct § 602(c) before the IJ
or the BIA. Rather, in his administrative proceedings,
Alvarado-Fonseca focused on the fact that he was con-
victed before the IIRIRA was enacted in 1996; now he
bases his argument on the fact that he was convicted
before the 1988 passage of the ADAA.
Consequently, as the government contends, Alvarado-
Fonseca failed to exhaust the argument he now advances.3
“An alien ordered removed from this country is required
to exhaust the administrative remedies available to him
before seeking judicial review of the removal order.”
Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008); see
also 8 U.S.C. § 1252(d)(1) (“A court may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of
right”). Part of the duty to exhaust is the obligation to
present all arguments to the BIA in the first instance that
it has the power to address. Ghaffar, 551 F.3d at 655.
Because Alvarado-Fonseca failed to exhaust his admin-
istrative remedies, we cannot consider his argument
that ADAA § 7344(b) bars his deportation.
By requiring that the BIA be given the first oppor-
tunity to consider questions of law under the INA, the
exhaustion requirement acknowledges and respects the
BIA’s role as the primary interpreter of immigration law,
as well as its expertise in interpreting the INA. Zeqiri v.
3
Alvarado-Fonseca did not file a reply brief to refute the
government’s exhaustion argument and argue that he
properly preserved this issue.
No. 10-1917 13
Mukasey, 529 F.3d 364, 369-70 (7th Cir. 2008). It would
undermine the BIA’s authority to ignore the exhaustion
requirement here.4
B. Ex Post Facto Clause
Alvarado-Fonseca also contends that deporting him
for the commission of an aggravated felony would
violate the ex post facto clause, which prohibits the retro-
active application of criminal laws that materially disad-
vantage the defendant. See U.S. C ONST. art. I, § 9, cl. 3;
Flores-Leon, 272 F.3d at 440. Alvarado-Fonseca concedes
that the ex post facto clause applies only to criminal laws,
and that both this circuit and the Supreme Court have
long held that removal under the immigration laws is a
civil proceeding, not a criminal punishment. See Galvan
v. Press, 347 U.S. 522, 531 (1954) (“And whatever might
4
As noted above, the BIA has concluded in other cases that
IMMAct § 602(c) overrides ADAA § 7344(b). Presumably, the
BIA would have dismissed Alvarado-Fonseca’s appeal on that
ground if he had presented the argument he now raises in
his administrative appeal. Therefore, one might argue that
Alvarado-Fonseca should be excused from administrative
exhaustion on futility grounds. (Alvarado-Fonseca does not
attempt to avoid the exhaustion requirement by advancing
this argument, or any other for that matter). However, we
rejected a similar argument in United States v. Roque-Espinoza,
338 F.3d 724, 729 (7th Cir. 2003), noting that “the law would
never change if litigants did not request the responsible tribu-
nals to reconsider earlier rulings.”
14 No. 10-1917
have been said at an earlier date for applying the ex post
facto Clause, it has been the unbroken rule of this Court
that it has no application to deportation.”); Flemming v.
Nestor, 363 U.S. 603, 616 (1960); Montenegro v. Ashcroft,
355 F.3d 1035 (7th Cir. 2004); Flores-Leon, 272 F.3d at
440. However, he argues that we should revisit that
conclusion in light of the Supreme Court’s recent deci-
sion Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
In Padilla, the Court held that counsel for an alien
charged with a crime has a constitutional obligation to
tell the client that a guilty plea carries a risk of deporta-
tion. Id. at 1486. In reaching that conclusion, the Court
noted that “deportation is a particularly severe ‘penalty,’ ”
and that removal proceedings, while “civil in nature,” are
“intimately related to the criminal process.” Id. at 1481.
However, the Court also reaffirmed that deportation “is
not, in a strict sense, a criminal sanction.” Id. In light of
that statement, we cannot agree that Padilla provides
sufficient guidance to deviate from the long line cases
establishing that statutes retroactively setting criteria
for deportation do not violate the ex post facto clause.
III. Conclusion
For the foregoing reasons, the petition for review is
D ENIED.
1-6-11