Jose Garcia-Lara v. Eric Holder, Jr. ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2009
Decided August 25, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08-4023
JOSE LUIS GARCIA-LARA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A091 175 801
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
ORDER
Jose Garcia-Lara, a native and citizen of Mexico, was found to be removable after an
immigration judge determined that his state conviction for criminal sexual abuse
constituted both an aggravated felony and a crime involving moral turpitude. Garcia-Lara
appealed to the Board of Immigration Appeals, making arguments unrelated to the
classification of his conviction. The BIA dismissed the appeal, and Garcia-Lara now argues
that the IJ’s classification of his conviction as an aggravated felony and a crime involving
moral turpitude was error. These new arguments suggest serious problems with the IJ’s
No. 08-4023 Page 2
ruling, but they are waived because Garcia-Lara failed to raise them before the BIA.
Accordingly, we are constrained to dismiss the petition for lack of jurisdiction.
I. BACKGROUND
Garcia-Lara came to the United States as a temporary resident in 1988 and became a
lawful permanent resident in 1992. Two years later, he pleaded guilty to criminal sexual
abuse, 720 ILCS 5/12-15(a)(2), and was sentenced to 18 months probation. Although the
definition of the offense has not changed since 1994, the classification has changed from
Class A misdemeanor to Class 4 felony. Compare 720 ILCS 5/12-15(d) with id. (1994). Under
the sentencing scheme at the time and today, the prison term for a Class A misdemeanor
must be less than one year. 730 ILCS 5/5-4.5-55(a); id. at 5/5-8-3(a)(1) (1994).
Garcia-Lara came to the federal government’s attention in 2007 when he was
arrested for aggravated assault and unlawful restraint. The government, relying on the
current penalty for criminal sexual abuse—the maximum term for a Class 4 felony is three
years, 730 ILCS 5/5-4.5-45(a)—charged Garcia-Lara as removable under 8 U.S.C.
§ 1227(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude. An alien
who commits a crime involving moral turpitude within five years of admission is
removable only if the crime is one ”for which a sentence of one year or longer may be
imposed.” 8 U.S.C. § 1227(a)(2)(A)(i)(II).
The government later added another charge of removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony, sexual abuse of a
minor, id. § 1101(a)(43)(A). The Illinois statute under which Garcia-Lara was convicted
covers sexual abuse of minors and non-minors: “The accused commits criminal sexual
abuse if he or she commits an act of sexual conduct and the accused knew that the victim
was unable to understand the nature of the act or was unable to give knowing consent.”
720 ILCS 5/12-15(a)(2). To conclude that Garcia-Lara’s victim was in fact a minor, the
government relied on two documents. The first is a misdemeanor complaint form that
names the victim and charges Garcia-Lara with fondling her breast and stomach for the
purpose of sexual gratification. The complaint follows the text of the statute—it states that
the victim was unable to understand or give knowing consent without mentioning the
victim’s age. For that fact, the government relied on an arrest report that recites the
complaint made by the victim’s mother and states that the victim was fifteen years old.
At hearings before the IJ, Garcia-Lara denied the charges against him. In response,
the government submitted the misdemeanor complaint form, the arrest report, a certified
statement of conviction/disposition from the Circuit Court of Cook County, and a then-
current copy of the statute at issue. The IJ asked Garcia-Lara if he objected to the admission
No. 08-4023 Page 3
of the documents, counsel said he did not, and the IJ admitted them. Garcia-Lara raised no
argument about his conviction beyond simply denying the charges of removability.
The IJ determined that Garcia-Lara was removable because his conviction
constituted both an aggravated felony and a crime involving moral turpitude. First, the IJ
agreed with the government that he could rely on the arrest report to determine the age of
the victim of sexual assault. Without any discussion, the IJ also concluded that Garcia-Lara
was removable because he had been convicted of a crime involving moral turpitude.
Finally, the IJ denied Garcia-Lara’s request for a continuance and determined that he was
not eligible for a waiver of removal under INA § 212(c) because sexual abuse of a minor has
no statutory counterpart in § 212(a).
Garcia-Lara appealed to the BIA, arguing only that he was entitled to § 212(c) relief
and that the IJ should have granted a continuance. The BIA dismissed the appeal in a
written opinion that addressed nothing more than the two arguments Garcia-Lara raised.
II. ANALYSIS
Garcia-Lara, represented by new counsel, now argues that the IJ erred in classifying
his conviction as an aggravated felony and a crime involving moral turpitude. We have
jurisdiction to review the legal question whether a conviction is properly classified as an
aggravated felony or a crime involving moral turpitude, but only if that question was
properly presented to the agency. See Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir.
2006) (citing 8 U.S.C. § 1252(d)(1)). The government argues that by failing to challenge the
classification of his conviction before the IJ and the BIA, Garcia-Lara failed to exhaust his
administrative remedies.
Generally speaking, arguments not raised before the BIA are waived. See Ghani v.
Holder, 557 F.3d 836, 839 (7th Cir. 2009). Garcia-Lara’s brief to the BIA argues that he was
entitled to § 212(c) relief and that the IJ should have granted him a continuance, but it says
nothing about the classification of his conviction as an aggravated felony and a crime
involving moral turpitude. Waiver can be excused for a limited number of reasons, but in
his brief to the court, Garcia-Lara does not suggest that any apply. At oral argument,
counsel for Garcia-Lara asked us to excuse the waiver because the government raised the
arguments before the BIA and because the BIA addressed them in passing, but the record
does not support these contentions. First, the BIA’s opinion says absolutely nothing about
the classification of the conviction. Second, assuming that an argument is exhausted when
it is raised only in the government’s brief to the BIA and not addressed by the BIA itself, see
Zara v. Ashcroft, 383 F.3d 927, 930-31 (9th Cir. 2004), the brief here was not enough to put
the BIA on notice of the arguments Garcia-Lara now wishes to raise. The government’s
No. 08-4023 Page 4
brief did nothing more than explain the IJ’s rulings on the offense classification and state
that they were made “appropriately.”
Counsel also asked that we excuse the failure to exhaust because of the seriousness
of the IJ’s errors. We do not dispute the premise of this argument. Because Garcia-Lara
was convicted of a misdemeanor punishable only by a sentence of less than one year, 720
ILCS 5/12-15(d) (1994); 730 ILCS 5/5-8-3(a)(1) (1994), it appears that he should not have
been found removable for having committed a crime involving moral turpitude. 8 U.S.C.
§ 1227(a)(2)(A)(i)(II). A misdemeanor may be classified as an aggravated felony, see
Guerrero-Perez v. I.N.S., 242 F.3d 727, 737 (7th Cir. 2001), but under the categorical approach
that governs the determination whether a conviction constitutes the aggravated felony of
sexual abuse of a minor, see Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009); Gaiskov v.
Holder, 567 F.3d 832, 835-36 (7th Cir. 2009), the IJ arguably erred by relying on the police
report, see Shepard v. United States, 544 U.S. 13, 16, 21 (2005) (holding that police report
submitted as grounds for issuing a criminal complaint could not be considered under
categorical approach applied to Armed Career Criminal Act); Jaggernauth v. U.S. Atty. Gen.,
432 F.3d 1346, 1355 (11th Cir. 2005) (applying Shepard in immigration context); Omari v.
Gonzales, 419 F.3d 303, 308 (5th Cir. 2005) (same); Parrilla v. Gonzales, 414 F.3d 1038, 1044
(9th Cir. 2005) (same). Ultimately, though, the seriousness of the IJ’s errors is immaterial
where, as here, the errors are ones the BIA could have remedied. See Ghaffar v. Mukasey, 551
F.3d 651, 655 (7th Cir. 2008). The contrary rule would eliminate the exhaustion requirement
entirely and deprive the BIA of its role as the principal interpreter of immigration law. See
Zeqiri v. Mukasey, 529 F.3d 364, 369-70 (7th Cir. 2008). Accordingly, we lack jurisdiction to
consider Garcia-Lara’s arguments because they are unexhausted.
III. CONCLUSION
Because we lack jurisdiction to consider Garcia-Lara’s arguments, we DISMISS the
petition.