Alvarado–fonseca v. Holder, 10–1917.

• Citation: 631 F.3d 385
• Decision Date: 06 January 2011
• Docket Number: No. 10–1917.,10–1917.
• Parties: Clemente ALVARADO–FONSECA, Petitioner,v.Eric H. HOLDER, Jr., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

631 F.3d 385

Clemente ALVARADO–FONSECA, Petitioner,

v.Eric H. HOLDER, Jr., Respondent.

No. 10–1917.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 2010.Decided Jan. 6, 2011.

Laureen R. Anderson (argued), Stanley J. Horn, Horn, Khalaf, Abuzir, Mitchell, & Schmidt, Chicago, IL, for Petitioner.Gregory D. Mack (argued), OIL, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.Before FLAUM, ROVNER and EVANS, Circuit Judges.FLAUM, Circuit Judge.

An immigration judge ordered Clemente Alvarado–Fonseca, a Mexican citizen, removed to Mexico on the ground that his 1984 state court conviction 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. 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 involved 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 statutory 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 felony.” 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 include any crime of violence for which a term of imprisonment of at least 5 years is imposed. The new definition applied only to crimes committed on or after November 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 otherwise specifically provided in such section and subsection (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, occurred 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 apply to convictions entered on or after the date of enactment 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 Immigration 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 concluded 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, 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 cancellation of removal, concluding that he was ineligible for cancellation because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (barring a permanent 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 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 application, 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 otherwise 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 an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(C); Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir.2009). However, pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction 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 necessarily 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 reasoning.

In Flores–Leon, we...