Padilla v. Gonzales, 05-2697.
| Decision Date | 07 December 2006 |
| Docket Number | No. 05-2697.,05-2697. |
| Citation | 470 F.3d 1209 |
| Parties | Luis F. PADILLA, Petitioner-Appellant, v. Alberto R. GONZALES and Deborah Achim, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mary L. Sfasciotti (argued), Chicago, IL, for Petitioner-Appellant.
Craig A. Oswald (argued), Sheila M. McNulty, Office of the United States Attorney, Chicago, IL, for Respondents-Appellees.
Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
The Board of Immigration Appeals ("BIA") ordered Luis Padilla removed to his native Mexico because he committed two crimes of moral turpitude. Padilla petitioned this court for review of the BIA's removal order and we dismissed his petition, leaving the removal order intact. Before federal immigration authorities got around to removing him, Padilla persuaded an Illinois court to vacate the two convictions that supplied the basis for his removal. Rather than asking the BIA to reopen his case in light of his vacated convictions, Padilla petitioned a federal district court for a writ of habeas corpus. He asked the district court to find him admissible to the United States and to order the Department of Homeland Security to terminate its removal proceedings against him. The district court denied Padilla's habeas petition, and Padilla took this appeal. Under the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, we construe Padilla's habeas appeal as a petition for review and conclude we lack jurisdiction to consider its merits because Padilla did not exhaust his administrative remedies. We therefore dismiss the petition.
Padilla became a lawful permanent resident of the United States in 1986. In 1989 he pleaded guilty to an Illinois charge of criminal sexual abuse. 720 ILL. COMP. STAT. 5/12-15. Two years later he pleaded guilty to obstruction of justice. 720 ILL. COMP. STAT. 5/31-4. At some point Padilla left the United States, then attempted reentry on May 7, 2000. Upon his return to the United States, federal immigration authorities placed Padilla into removal proceedings because of his criminal record. Those administrative proceedings concluded on February 27, 2004, when the BIA found Padilla had committed two crimes involving moral turpitude—criminal sexual abuse and obstruction of justice—and ordered his removal to Mexico. See 8 U.S.C. § 1182(a)(2)(A) (). Padilla petitioned this court for review of the BIA's removal order. In an opinion dated February 22, 2005, we dismissed his petition and the removal order remained in effect. Padilla v. Gonzales, 397 F.3d 1016, 1021 (7th Cir.2005) ().
The Department of Homeland Security told Padilla to report for removal to Mexico on May 10, 2005. Padilla then moved the Illinois state court to withdraw the guilty pleas that led to his 1989 sexual abuse conviction and his 1991 obstruction of justice conviction. His motion also asked the state court to vacate and set aside those two convictions. Padilla argued that his pleas were invalid in light of a new Illinois law that went into effect on January 1, 2004. The new law provides, in relevant part:
Before the acceptance of a plea of guilty[,] . . . the court shall give the following advisement to the defendant in open court:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States."
725 ILL. COMP. STAT. 5/113-8. The state court granted Padilla's motions on the same day he filed them, March 11, 2005. The court's order—which was handwritten by Padilla's counsel—permitted Padilla to withdraw his guilty pleas and vacated his sexual abuse and obstruction of justice convictions. The order does not explain why the state judge thought a law that became effective in January 2004 provided grounds to vacate judgments of conviction entered in 1989 and 1991.
On the basis of his newly vacated convictions, Padilla petitioned the district court for the Northern District of Illinois for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He asked the district court to declare him admissible to the United States and to order the Department of Homeland Security to cease its efforts to remove him. As Padilla's May 10 removal date approached, the district court held several hearings on his habeas petition. At an April 28 hearing the court and parties discussed the necessity of asking the BIA to reopen Padilla's case to consider the vacation of his convictions:
. . . .
THE COURT: The proper authorities, really, on an issue like this should be the immigration court and the Board of Immigration Appeals because they're the ones who entered the removal order and they're the only ones who could vacate the removal order or reopen.
The court and parties agreed that Padilla would prepare a motion asking the BIA to reopen his case. Although Padilla's ninety-day period for filing a motion to reopen had long since expired, if the government joined in his motion, he could file it beyond the ninety days.1 The government said it would decide whether to join Padilla's motion before his May 10 removal date. The parties reconvened before the district court on May 9. Padilla's counsel had prepared the motion as agreed, but the government had still not decided whether to join in it. At a 9 a.m. hearing the next morning, three hours before Padilla was to report for removal to Mexico, the government informed the district court and Padilla's counsel that it would not join in his motion to reopen. Counsel for the government said Padilla could ask the BIA to exercise its authority to reopen his case sua sponte at any time.2 Padilla's counsel responded, "[T]he only problem is that even if there were such a provision—and I believe that there is—the other problem for Mr. Padilla is that he has a 12:00 o'clock surrender time." Padilla never filed any motion asking the BIA to reopen his case to consider the effect of his vacated convictions on the order of removal.
The district court found that the BIA's removal order remained valid despite the recent state court order vacating Padilla's convictions. Accordingly, the court denied Padilla's habeas petition and motion to stay his removal. After listening to further argument at a hearing the next day, the court denied Padilla's motion to reconsider.
The same day the district court denied Padilla's motion to reconsider—May 11, 2005—President Bush signed into law the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231.3 Padilla filed his notice of appeal on June 9. At some point on or after May 10, the Department of Homeland Security removed Padilla to Mexico.
The jurisdictional adjustments contained in the REAL ID Act apply retroactively to Padilla's case; they apply "to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment of this division." Pub.L. No. 109-13, 119 Stat. 231, 311 Div. B, Title I, § 106(b). The REAL ID Act further instructs district courts that any pending habeas petitions (28 U.S.C. § 2241) challenging final orders of removal must be transferred to the courts of appeals and treated as petitions for review. Id. at § 106(c).
Congress did not specify how to treat habeas petitions that were already pending on appeal when the REAL ID Act was enacted on May 11, 2005. However, we have joined several other circuits in concluding these habeas claims should also be treated as petitions for review because Congress clearly intended the courts of appeals to be the one judicial forum for hearing challenges to administrative removal orders. Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir.2006); Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.2005); Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir.2005); Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.2005). So whether Padilla's habeas petition was currently pending before the district court or was already on appeal to this court when the REAL ID Act went into effect, we construe this appeal as a petition for review of the BIA's removal order. The REAL ID Act retroactively deprived the district court of jurisdiction to decide Padilla's claims and nullifies its ruling on the habeas petition. See Bonhometre, 414 F.3d at 446.
When a petition for review challenges a final order of removal, we have jurisdiction only when "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). The government contends Padilla did not exhaust his administrative remedies with respect to the issues raised on this appeal because he never asked the...
To continue reading
Request your trial
-
Gor v. Holder
...must first present the issue to the Board in the form of a motion to reopen for exceptional circumstances.”); Padilla v. Gonzales, 470 F.3d 1209, 1213-14 (7th Cir.2006) (holding that a claim could be exhausted if it were denied by the agency on a motion to sua sponte); cf. Qeraxhiu v. Gonza......
-
Vargas v. Beth
...Vargas seeks judicial review of an order of removal, his petition is barred by 8 U.S.C. § 1252(a)(5) and (g). Padilla v. Gonzales , 470 F.3d 1209, 1214 (7th Cir. 2006). However, Vargas' Count One claim is not a challenge to an order of removal. It is a challenge to detention and, specifical......
-
Arobelidze v. Holder
...the petitioner with the relief requested in the first instance, and it provides us with reasoning to review. See Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir.2006); Gonzalez v. O'Connell, 355 F.3d 1010, 1017–18 (7th Cir.2004). When the Board addresses an issue on its own, all of these ......
-
Sidabutar v. Gonzales
...requirement permits the BIA "the opportunity to apply its specialized knowledge and experience to the matter," Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir.2006), and "to resolve a controversy or correct its own errors before judicial intervention," Bonhometre v. Gonzales, 414 F.3d 442......