Flaviano VICTORIA-FAUSTINO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent, 865 F.3d 869

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 III. Comp. 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 Department of Homeland Security 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 III. 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 Anal 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 Fonsecar-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 upon her criminal convictions. Id. at 443. This key distinction is what renders Fonseca-Sanchez inapplicable to the present case.

Rather, Vietoria-Faustino’s petition is more analogous to Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), where the petitioner, like Victoria-Faustino, failed to seek independent judicial review of the FARO within the allotted time. Instead, the Eke petitioner was referred for a eredible-fear interview to determine whether his fear of future persecution upon removal to Nigeria had any merit. The petitioner filed a timely petition for review of the BIA’s final decision denying him asylum.

We concluded that this allowed us to review his claims that his convictions did not classify as aggravated felonies under the INA. In doing so, we stated, “we retain jurisdiction to determine whether we have jurisdiction—that is to determine whether an alien’s criminal conviction is indeed an ‘aggravated felony,’ under the INA....” Id. at 378 (quoting Lara-Ruiz v. I.N.S., 241 F.3d 934, 939 (7th Cir. 2001)) (internal quotation marks omitted). While here, Victoria-Faustino failed to file a response to the Notice of Intent and refused to sign the form, he did indicate that he wished to contest withholding.

Because he indicated that he feared persecution upon removal, a reasonable fear determination interview was conducted, like in Eke. Although Victoria-Faustino failed to file a timely response to the Notice of Intent, Eke makes clear that we retain jurisdiction to determine whether the petitioner is properly within the expedited proceedings contemplated by

Section 238(

b) of the INA, i.e., whether he or she has been convicted of an aggravated felony as defined by the INA. Id.; see also Issaq v. Holder, 617 F.3d 962, 966-97 (7th Cir. 2010) (“Notwithstanding the superficially absolute nature of [§ 1252(a)(2)(c)] ... we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony.”) (emphasis added); Lopez v.

Lynch, 810 F.3d 484, 488 (7th Cir. 2016) (“Since we review de novo whether an alien was convicted of an aggravated felony, it is irrelevant to our analysis that the BIA’s opinion addressed the issue without definitively ruling on the matter.”). And, although the dissent contends that this would open the door for any legal challenge that was not raised to the DHS to be heard on appeal, we disagree. Our holding today is narrow: the INA does not deprive an appellate court of jurisdiction to consider whether or not a petitioner is properly within the expedited proceedings. A.

Illinois Conviction is Not an Aggravated Felony The INA provides that any alien convicted of an aggravated felony at any point after admission into the United States is deportable. 8 U.S.C. § 1227(a)(2) (A) (iii). The Act renders an alien removable based on the nature of his conviction, not based upon his actual conduct. Esquivel-Quintana v. Sessions, — U.S. —, 187 S.Ct. 1562, 1567, 198 L.Ed.2d 22 (2017). Under the INA, an alien who is convicted of an aggravated felony “shall be conclusively presumed to be deportable from the United States.” 8 U.S.C. § 1228(c).

Section 238(

b) of the INA permits a final removal order to issue without a hearing. Id. § 1228(b)(4). These expedited removal proceedings commence when formal notice is served on the alien. Id.; see also 8 C.F.R. § 238.1(b)(2)(i) (“Removal proceedings under

section 238(

b) of the Act shall commence upon personal service of the Notice of Intent upon the alien....”); Eke, 512 F.3d at 376-77 (describing expedited removal proceedings under the INA). While the INA does not define the term “aggravated felony,” it does provide a list of criminal offenses that qualify as such. See 8 U.S.C. § 1101(a)(43). One such qualifying offense is “an offense relating to obstruction of justice, perjury or subordination of perjury, or bribery of a witness, for which the term of imprisonment is at least one year....” Id. § 1101(a)(43)(S).

Our review of whether the petitioner committed an aggravated felony, and as such was properly in the expedited proceedings, is de novo. Lopez, 810 F.3d at 488 (citing Eke, 512 F.3d at 378). DHS concluded that Victoria-Faustino was subject to expedited removal proceedings based upon his 2000 Illinois conviction for obstruction of justice pursuant to 720 III. Comp. Stat. 5/31—4. On appeal, Victoria-Faustino contends, for the first time, that this conviction does not constitute an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43)(S).

The Illinois statute under which he was convicted states, in pertinent part, 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. To determine whether this provision of Illinois law constitutes the aggravated felony of obstruction of justice under the INA, we must engage in what has been coined the “categorical approach.” See Esquivel-Quintana, 137 S.Ct. at 1567-68.

This requires us to look at the statute of conviction, and not the specific facts underlying it, to determine whether the statute “categorically fits within the generic federal definition of the corresponding aggravated felony.” Id. at 1563 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013)) (internal quotation marks omitted). “Generic” means that the offense “must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense.... ” Moncrieffe, 569 U.S. at 190, 133 S.Ct. 1678.

To do so, we must presume that the state conviction “rested upon ... the least of th[e] acts criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime.” Esquivel-Quintana, 137 S.Ct. at 1568 (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)) (internal quotation marks omitted). Unlike other crimes enumerated as aggravated felonies, this provision does not equate a crime relating to the obstruction of justice to a particular federal crime.

Cf. 8 U.S.C. § 1101(a)(43)(B) (an “ ‘aggravated felony’ means ... illicit trafficking in a controlled substance (as defined in

section 802 of Title 21), including a drug trafficking crime (as defined in

section 924(

c) of Title 18)”). Rather, it merely states that an “aggravated felony means ... an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” Id. § 1101(a)(43)(S). The petitioner seems to argue that this provision is ambiguous and, that we should provide deference to the Board’s

interpretation of the phrase, a point the government concedes. It is our practice to give deference to the Board’s reasonable

interpretation of what constitutes an aggravated felony under the INA. Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 501 (7th Cir. 2008) (“Ordinarily, we review de novo the classification of an offense as an aggravated felony, giving deference to the [Board’s] reasonable

interpretation of the INA.”) (quoting Sharashidze v. Gonzales, 480 F.3d 566, 568 n.4 (7th Cir. 2007)) (internal quotation marks omitted); but see Denis v. Att’y Gen. of U.S., 633 F.3d 201 (3d Cir. 2011) (finding that the phrase “relating to obstruction of justice” is unambiguous, rendering deference inappropriate). Yet, the parties dispute how the Board has interpreted the phrase. Victoria-Faustino contends that we must rely upon the Board’s decision in In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc).

There, the Board noted that for a crime to relate to the “obstruction of justice,” it must “have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others who cooperate in the process of justice or might otherwise so cooperate.” Id. at 892. Victoria-Faustino asserts that this contemplates the existence of an ongoing proceeding. The government, however, asks us to rely upon the Board’s decision in In re Valenzuela Gallardo, 25 I. & N. Dec. 838, 841 (BIA 2012).

In In re Valenzuela Gallardo, the Board clarified that the existence of an ongoing proceeding is not an essential element of an “offense relating to the obstruction of justice.” 25 I. & N. Dec. 838, 841 (BIA 2012). Therefore, the Board noted that there are crimes that relate to the obstruction of justice that criminalize conduct “that significantly precedes the onset of any official proceeding, even of an investigative nature.” Id. at 842-43. After the Board concluded that the petitioner’s conviction was an aggravated felony, he appealed to the Ninth Circuit.

On appeal, the Ninth Circuit concluded that although the Board is entitled to deference to its definition of “relating to obstruction of justice,” it could not defer to the definition as articulated in In re Valenzuela Gallardo. See Valenzuela Gallardo v. Lynch, 818 F.3d 808, 822 (9th Cir. 2016). The court found that the new

interpretation of the phrase raised “grave constitutional concerns because it uses an amorphous phrase ‘process of justice’—without telling us what that phrase means.” Id. Therefore, the court granted the petition for review and remanded it to the Board for further proceedings. Id. at 825. But, the court did note that it did “not hold ... that ‘ongoing proceedings’ is the only permissible anchor for the ‘process of justice.’ ” Id. at 820.

In light of the Ninth Circuit’s decision to remand the petition to the Board for further proceedings, we will not defer to the In re Valenzuela Gallardo articulation of what constitutes a crime relating to the obstruction of justice under the INA. See Cruz v. Sessions, 689 F.3d 328, 328, 2017 WL 2115209, at *1 (5th Cir. 2017) (remanding petition to the Board for further proceedings because the Board relied on “the now-vacated Valenzuela Gallardo decision ....”) (unpub.). This leaves us with the definition as articulated in In re Espinoza-Gonzalez.

Because the Illinois statute under which Victoria-Faustino was convicted does not require interference with the proceedings of a tribunal, it cannot be said that the statute categorically fits within the meaning of the INA’s definition of obstruction of justice. Therefore, we must remand this petition to the DHS for further proceedings. We caution that we do not, and need not, determine at this juncture whether Victoria-Faustino is removable under the INA. Rather, we hold that Victoria-Faustino was improperly placed in the expedited removal proceedings based upon his 2000 Illinois conviction under 720 III. Comp.

Stat. 5/31-4. III. CONCLUSION The petitioner’s petition for review is Granted and the petition is Remanded for further proceedings. . The dissent contends that “straightforward exhaustion principles should dispose of this case.” Dissent at 876. But, as the dissent concedes, we have on a number of occasions stated that the exhaustion requirement is not a "jurisdictional rule in the strict sense that the Supreme Court has emphasized that we follow.” Id. (citing Issaq, 617 F.3d at 968).

Rather, “[bjecause the rule is non-jurisdictional, it is subject to waiver, forfeiture, and other discretionary considerations.” Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (emphasis added). As the exhaustion requirement is not a jurisdictional rule and because we have been clear that we continue to retain the right to determine whether an individual is properly within the expedited proceedings, we must entertain Victoria-Faustino’s arguments on appeal even though he did not raise them to the DHS. .

The same is not true of Victoria-Faustino’s two legal arguments that DHS lacks jurisdiction to issue removal orders and that the Department of Justice’s regulations implementing 8 U.S.C. § 1228(

b) are ultra vires acts. Because these claims were never presented to the administrative agency below, they were not exhausted and, therefore, are not properly before this court. . The Notice of Intent incorrectly states that Victoria-Faustino was convicted on June 17, 2003. The petitioner concedes that he was not prejudiced by this error. . The dissent contends that we should engage in our own review of the statute’s language. But, in doing so, it fails to address our prior precedent that dictates that we give deference to the Board’s

interpretation of what constitutes an aggravated felony under the INA. Nor does the dissent engage in the categorical approach mandated by Esquivel-Quintana, 137 S.Ct. at 1567-68.