Victoria-Faustino v. Sessions

MANION, Circuit Judge,

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),1 if nevertheless “usually forecloses a *877petitioner from raising an issue in federal court that 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 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*878tional 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 exhausting his administrative remedies. That is incorrect. Properly understood, the exhaustion requirement is a separate jurisdictional limitation that limits our power to hear even challenges that raise questions of law.

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.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, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“one of the most' basic interpretive canons” is that a statute should be construed “so that no part will be inoperative or superfluous, .void or insignificant” (internal quotation marks omitted)).

The court is also incorrect that Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), *879dictates 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 binding authority-on a statute which it did not cite.3 Moreover, even if Eke were an exhaustion case, it would be distinguishable for two reasons. First, the government’s concession that we had jurisdiction in that case is enough under our precedents 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 argument that his convictions, for various reasons, should not automatically lead to his removal”). In my view, Eke is inappo-site and this case is governed by general principles of exhaustion of remedies.4

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.”

*880III. CONCLUSION

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 *877superficially absolute nature of [§ 1252(a)(2)(C)],” we may decide the aggravated felony question, is inapposite. As I explain below, 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 general jurisdiction-stripping statute and exception at issue in Issaq. We should simply apply the exhaustion requirement.

. 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).