Gonzalez, Carlos v. O'Connell, Cynthia

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1527

CARLOS GONZALEZ,

Petitioner-Appellee,

v.

CYNTHIA J. O’CONNELL, District Director,

Bureau of Immigration and Customs Enforcement,

and UNITED STATES OF AMERICA,

Respondents-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 7511—Milton I. Shadur, Judge.

____________

ARGUED SEPTEMBER 19, 2003—DECIDED JANUARY 21, 2004

____________

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. The Immigration and Naturalization

1

Service (“Agency”) initiated removal pro-

1

Recently, the Immigration and Naturalization Service was

abolished, and its immigration enforcement function was trans-

ferred to the Bureau of Immigration and Customs Enforcement

in the newly created Department of Homeland Security. See

Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003). To

(continued...)

2 No. 03-1527

ceedings against Carlos Gonzalez in August of 2002 as a

result of his conviction in the Circuit Court of Cook County,

Illinois, for possession of a controlled substance, cocaine. It

also placed Mr. Gonzalez in physical civil immigration

custody under the authority of § 236(c) of the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1226(c). After an

immigration judge (“IJ”) denied Mr. Gonzalez’s request for

bond, citing § 1226(c)’s mandatory detention requirement,

Mr. Gonzalez filed a petition for a writ of habeas corpus. See

28 U.S.C. § 2241. His petition alleged that he was entitled to

immediate release because § 1226(c)’s mandatory detention

requirement was unconstitutional as applied to him. The

district court agreed and issued the writ; the Government

timely appealed. For the reasons set forth in this opinion, we

must reverse the judgment of the district court.

I

BACKGROUND

A. Facts

Mr. Gonzalez is a native and citizen of El Salvador. He

entered the United States in 1990 and became a lawful

permanent resident of this country in 1994. In November of

2001, Mr. Gonzalez was found guilty of possession of a

controlled substance, cocaine, in violation of Illinois law, see

720 ILCS 570/402(c), and was sentenced to two years of

1

(...continued)

avoid confusion, we shall refer to this entity as the “Agency.”

Also, many of the immigration regulations at issue in this case

recently were reclassified, although their substance, as it relates

to this appeal, remains the same. We shall cite to the new reg-

ulations in this opinion.

No. 03-1527 3

probation. Accordingly, the Agency placed Mr. Gonzalez in

removal proceedings in August of 2002. It charged him with

removability as an alien convicted of an aggravated felony,

2

see 8 U.S.C. § 1227(a)(2)(A)(iii), and as an alien convicted of

a state law relating to a controlled substance, see 8 U.S.C. §

3

1227(a)(2)(B)(i). The Agency also placed him in physical

civil immigration custody pending his removal proceedings

4

under the authority of § 1226(c).

On October 17, 2002, an IJ held a custody/bond rede-

termination hearing, referred to by Mr. Gonzalez’s counsel

as the equivalent of a “Joseph hearing.” The IJ determined

that Mr. Gonzalez was subject to mandatory detention

pending removal proceedings under § 1226(c) because he

was removable as an alien convicted of an aggravated

felony and of a state drug offense. Therefore, bond was not

available to Mr. Gonzalez.

Mr. Gonzalez did not appeal the IJ’s decision to the Board

of Immigration Appeals (“BIA”), but, on October 18, 2002,

he filed a petition for a writ of habeas corpus in the United

States District Court for the Northern District of Illinois. He

2

8 U.S.C. § 1227(a)(2)(A)(iii) provides: “Any alien who is con-

victed of an aggravated felony at any time after admission is

deportable.”

3

8 U.S.C. § 1227(a)(2)(B)(i) provides: “Any alien who at any time

after admission has been convicted of a violation of . . . any law

or regulation of a State . . . relating to a controlled substance . . .

, other than a single offense involving possession for one’s own

use of 30 grams or less of marijuana, is deportable.”

4

Under 8 U.S.C. § 1226(c)(1)(B), the Attorney General is required

to take into custody any alien who “is deportable by reason of

having committed any offense covered in section

1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.”

4 No. 03-1527

sought an order compelling the Agency to conduct an

individualized bond determination. His petition alleged that

he was not “deportable” under § 1226(c)(1)(B) because he

was not “convicted” of either an aggravated felony, see 8

U.S.C. § 1227(a)(2)(A)(iii), or a state law relating to a

controlled substance, see 8 U.S.C. § 1227(a)(2)(B)(i). His

contention that he was not “convicted” for immigration

purposes was based on Illinois law, which provides that

probationary dispositions, such as the one Mr. Gonzalez

received, are not “conviction[s].” 720 ILCS 570/410(g)

(mandating that a probationary disposition “is not a con-

viction . . . for purposes of disqualifications or disabilities

imposed by law upon conviction of a crime”). He main-

tained that § 1226(c)’s mandatory detention requirement

violated his right to due process under the Fifth and

Fourteenth Amendments because he raised a good-faith

argument that he would not in fact be deported.

B. District Court Proceedings

As a threshold matter, the district court held that Mr.

Gonzalez was not required to exhaust his administrative

remedies by appealing to the BIA the IJ’s determination that

he was ineligible for bond. The court determined that his

case was excepted from the exhaustion requirement because

“the INS authorities are of course bound to conform to

Section 1226(c), so that any attempt by Gonzalez to chal-

lenge his detention before them would be an exercise in

total futility.” R.8 at 2.

As to the merits, the district court first noted that under

Illinois law probationary dispositions are not “convic-

tion[s].” 720 ILCS 570/410(g). Because both removability

grounds charged against Mr. Gonzalez required a “convict-

No. 03-1527 5

[ion],” see 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i), the

court held there was a “serious substantive legal question”

regarding his deportability. R.8 at 2. That being the case, it

concluded that Mr. Gonzalez’s right to due process under

the Fifth and Fourteenth Amendments would be violated if

he were subject to mandatory detention under § 1226(c).

II

DISCUSSION

We believe it first would be helpful to set out a brief

overview of the procedures at issue in this case. Section

1226(c) requires the Attorney General to take into custody

and mandatorily detain certain aliens. See 8 U.S.C. § 1226(c)

(“The Attorney General shall take into custody any alien

who . . . .”). Included in this list are aliens who are “de-

portable” because they have been “convicted” of an ag-

gravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), or “convicted”

of violating a state law relating to a controlled substance, 8

U.S.C. § 1227(a)(2)(B)(i). 8 U.S.C. § 1226(c)(1)(B). After

the Agency takes an alien into custody and orders him

mandatorily detained under § 1226(c), a “Joseph hearing”

before an IJ is “immediately provided” if the alien claims he

is not covered by § 1226(c). Demore v. Kim, 123 S. Ct. 1708,

1712 n.3 (2003); see also 8 C.F.R. §§ 236.1(d)(1) & 1236.1(d)(1)

(explaining that an IJ may redetermine the initial custody

and bond determination of the district director any time

before a final deportation order); § 1003.19(h)(1)(ii) (provid-

ing that an alien may seek a “determination by an immigra-

tion judge that the alien is not properly included” within §

1226(c)). “At the hearing, the detainee may avoid manda-

tory detention by demonstrating that he is not an alien, was

not convicted of the predicate crime, or that the INS is

6 No. 03-1527

otherwise substantially unlikely to establish that he is in fact

subject to mandatory detention.” Kim, 123 S. Ct. at 1712 n.3

(citations omitted); see also In re Joseph, 22 I. & N. Dec. 799,

1999 BIA LEXIS 25, at *14 (BIA 1999) (noting that a

Joseph hearing provides an alien “the opportunity to offer

evidence and legal authority on the question whether the

Service has properly included him within a category that is

subject to mandatory detention”). Thus, “the [IJ] must

necessarily look forward to what is likely to be shown

during the hearing on the underlying removal case.” Id. at

*20.

The IJ’s ultimate decision “may be based upon any

information that is available to the [IJ] or that is presented

to him or her by the alien or the Service.” 8 C.F.R.

§ 1003.19(d). If the IJ determines the alien does fall within

§ 1226(c), then he is without authority to conduct an indi-

vidualized bond determination. See 8 C.F.R. § 1003.19(h)(1)

(i)(E). However, if the IJ determines the alien does not fall

within § 1226(c), then he may consider the question of bond.

See In re Joseph, 22 I. & N. Dec. 799, 1999 BIA LEXIS 25, at *16

(BIA 1999) (“A determination in favor of an alien on this

issue does not lead to automatic release. It simply allows an

[IJ] to consider the question of bond . . . .”). The IJ’s ruling

then may be appealed to the BIA for review under the same

governing principles. See 8 C.F.R. §§ 236.1(d)(3) &

1236.1(d)(3) (explaining that an alien may appeal to the BIA

an IJ’s custody and bond determinations).

With this structure in mind, we turn to Mr. Gonzalez’s

petition. Mr. Gonzalez challenges § 1226(c)’s mandatory

detention as applied to detainees, such as him, who raise

what his counsel characterized as a “good-faith argument”

that they will not in fact be deported. Before reaching that

contention, however, we must address two threshold mat-

No. 03-1527 7

ters. First, we must ensure that we have subject matter

jurisdiction to adjudicate Mr. Gonzalez’s claim. Next, we

must consider whether Mr. Gonzalez is required to exhaust

his administrative remedies by appealing to the BIA before

bringing his claim via a writ of habeas corpus to federal

court.

A. Subject Matter Jurisdiction

Although both parties agree that 8 U.S.C. § 1226(e) does

not deprive this court of jurisdiction, we have an independ-

ent duty to verify our subject matter jurisdiction before

proceeding. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 95 (1998). Section 1226(e) states: “The Attorney General’s

discretionary judgment regarding the application of this

section shall not be subject to review. No court may set

aside any action or decision by the Attorney General under

this section regarding the detention or release of any alien

or the grant, revocation, or denial of bond or parole.”

Arguably, Mr. Gonzalez is contesting a “discretionary

judgment” or “decision by the Attorney General” to detain

him under § 1226(c), and therefore, under § 1226(e), no court

may “set aside” that decision.

That very argument, however, was rejected by this court

in Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), and more

recently, by the Supreme Court in Demore v. Kim, 123 S. Ct.

1708 (2003). In both Kim and Parra, aliens who were man-

datorily detained under § 1226(c) challenged that section as

unconstitutional. The Supreme Court in Kim, consistent with

this court’s earlier decision in Parra, held that it was not

deprived of jurisdiction by § 1226(e) to consider a challenge

such as this one because the petitioner was not simply

challenging “a ‘discretionary judgment’ by the Attorney

General or a ‘decision’ that the Attorney General has made

8 No. 03-1527

regarding his detention or release. Rather, [the petitioner]

challenges the statutory framework that permits his deten-

tion without bail.” Id. at 1714 (citing Parra, 172 F.3d at 957

(“Section 1226(e) likewise deals with challenges to opera-

tional decisions, rather than to the legislation establishing

the framework for those decisions.”)).

The Supreme Court relied on two rules of statutory

construction: “ ‘[W]here Congress intends to preclude judi-

cial review of constitutional claims its intent to do so must

be clear,’ ” Kim, 123 S. Ct. at 1714 (quoting Webster v. Doe,

486 U.S. 592, 603 (1988)), and “where a provision precluding

review is claimed to bar habeas review, the Court has

required a particularly clear statement that such is

Congress’ intent,” id. (citing INS v. St. Cyr, 533 U.S. 289, 308-

09 (2001)). With these principles as guidance, the Supreme

Court concluded: “Section 1226(e) contains no explicit

provision barring habeas review, and we think that its clear

text does not bar respondent’s constitutional challenge to

the legislation authorizing his detention without bail.” Id.

Mr. Gonzalez, like the petitioners in Kim and Parra, is

not challenging “operational decisions” of the Attorney

General, Parra, 172 F.3d at 957, but “the statutory frame-

work that permits his detention without bail,” Kim, 123 S.

Ct. at 1714. Mr. Gonzalez is different in one respect from the

petitioners in Kim and Parra: He did not concede his

deportability. One might argue that this case is therefore

different because here a “discretionary decision” or even

just a “decision” is necessary to determine whether Mr.

Gonzalez is “deportable” and thus within § 1226(c)’s ambit.

This “decision,” as the argument might proceed, is not

subject to review under § 1226(e).

That distinction, however, is illusory. The Attorney

General necessarily must make a “decision” that all detain-

No. 03-1527 9

ees are “deportable” (or “inadmissible”) in order to detain

them under § 1226(c), even if they concede their deport-

ability. As noted above, the Supreme Court and this circuit

have not been persuaded such a “decision” is within

§ 1226(e)’s ban on review. Furthermore, such a distinction

ignores the Supreme Court’s blanket holding in Kim that

Congress’ language in § 1226(e) was simply not clear

enough to overcome the presumption that it was not de-

priving the federal courts of jurisdiction over constitutional

questions, a presumption which is even stronger in the

habeas context. See Kim, 123 S. Ct. at 1714. In sum, therefore,

we conclude that Kim and Parra control this case for pur-

poses of the § 1226(e) analysis. Accordingly, we hold that

we have subject matter jurisdiction to adjudicate Mr.

Gonzalez’s habeas claim.

B. Exhaustion of Administrative Remedies

Mr. Gonzalez did not appeal to the BIA the IJ’s October

17, 2002 decision that he fell within § 1226(c). The only

question, therefore, is whether he was required to take such

a step before filing a habeas petition. The district court

determined that he was not because he was excepted from

the exhaustion requirement. We review that determination

de novo. See United States v. Castor, 937 F.2d 293, 296-97 (7th

Cir. 1991) (reviewing de novo a district court’s determina-

tion regarding exhaustion in the context of a habeas petition

brought under 28 U.S.C. § 2241(c)(3)).

The exhaustion requirement can be statutorily created

or judicially created (so-called “common-law exhaustion”).

The difference is key. “Most agency organic acts do not

address exhaustion. When they do, however, courts are not

free simply to apply the common law exhaustion doctrine

with its pragmatic, judicially defined exceptions. Courts

10 No. 03-1527

must, of course, apply the terms of the statute.” II Kenneth

C. Davis et al., Administrative Law Treatise § 15.3, at 318 (3d

ed. 1994); Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003)

(noting the distinction between statutorily and judicially

imposed exhaustion is pivotal because “statutory exhaus-

tion requirements are mandatory, while the judicial (com-

mon-law) exhaustion doctrine is discretionary and includes

a number of exceptions”); Glisson v. United States Forest

Serv., 55 F.3d 1325, 1327 (7th Cir. 1995) (“[T]o the extent that

[exhaustion] is a doctrine of federal common law rather

than the inflexible command of a statute, it is to be applied

with due regard for its underlying purpose and for consid-

erations that may in particular cases counsel for a waiver.”).

Therefore, were we reviewing Mr. Gonzalez’s request that

he be excepted from exhaustion on the basis of futility in the

context of a statutorily mandated exhaustion requirement,

our lone question would be whether Congress intended

such an exception. See Booth v. Churner, 532 U.S. 731, 741 n.6

(2001) (instructing that courts should “not read futility or

other exceptions into statutory exhaustion requirements

where Congress has provided otherwise”); United States v.

Roque-Espinoza, 338 F.3d 724, 728-29 (7th Cir. 2003) (consid-

ering a request that the exhaustion requirement of 8 U.S.C.

§ 1326(d)(1) be excused because appeal to the BIA would be

futile and noting recent Supreme Court cases “construing

the contemporaneous exhaustion requirements of the Prison

Litigation Reform Act suggest strongly that futility excuses

will not go far”).

However, exhaustion of administrative remedies is not

statutorily mandated in Mr. Gonzalez’s case. The INA

mandates exhaustion in order to challenge “final order[s] of

removal.” 8 U.S.C. § 1252(d)(1). However, this provision

does not cover challenges to preliminary custody or bond

determinations, which are quite distinct from “final order[s]

No. 03-1527 11

of removal.” See Gornicka v. INS, 681 F.2d 501, 505 (7th Cir.

1982) (“[I]t is clear bond hearings are separate and apart

from deportations hearings. . . . A bond determination is not

a final order of deportation . . . and does not effect [sic] the

deportation proceeding.”). Also, Congress requires exhaus-

tion for certain types of habeas petitions, but not for those

petitions, such as Mr. Gonzalez’s, brought under 28 U.S.C.

§ 2241. See James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)

(“Section 2254(b)(1) requires state prisoners to exhaust all

available state court remedies before filing a Section 2254

petition, whereas Section 2241 contains no such exhaustion

requirement.”).

“[W]here Congress has not clearly required exhaustion,

sound judicial discretion governs.” McCarthy v. Madigan,

5

503 U.S. 140, 144 (1992). In exercising that discretion, we

must balance the individual and institutional interests

involved, taking into account “the nature of the claim pre-

sented and the characteristics of the particular admini-

strative procedure provided.” Id. at 146. We start with “the

general rule that parties exhaust prescribed administrative

5

McCarthy v. Madigan, 503 U.S. 140 (1992), has been superseded

by statute to the extent it held that federal prisoners seeking

monetary damages in a Bivens action are not required under 42

U.S.C. § 1997e to exhaust administrative remedies provided by

the Bureau of Prisons. See Wendell v. Asher, 162 F.3d 887, 890 (5th

Cir. 1998) (noting that the Prison Litigation Reform Act, Pub. L.

No. 104-134, § 803, 110 Stat. 1321, which took effect April 26,

1996, changed the exhaustion requirements contained in 42 U.S.C.

§ 1997e). However, McCarthy’s principle that when exhaustion is

not statutorily mandated, “sound judicial discretion governs,”

503 U.S. at 144, remains good law, as does its further admonitions

on how that discretion should be utilized. See, e.g., Zephyr

Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570-73 (5th Cir. 2001).

12 No. 03-1527

remedies before seeking relief from the federal courts.” Id.

at 144-45; see also Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir.

1986) (accord). This rule, however, is not absolute. We have

held that individual interests demand that exhaustion be

excused when

(1) requiring exhaustion of administrative remedies

causes prejudice, due to unreasonable delay or an

indefinite timeframe for administrative action; (2) the

agency lacks the ability or competence to resolve the is-

sue or grant the relief requested; (3) appealing through

the administrative process would be futile because the

agency is biased or has predetermined the issue; or (4)

where substantial constitutional questions are raised.

Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) (internal

quotations and citations omitted).

Mr. Gonzalez does not suggest that an “unreasonable

delay” would have resulted from an appeal to the BIA.

Rather, consistent with the district court, he relies on a

combination of the latter three exceptions. Specifically, he

argues that an appeal to the BIA would have been “futile,”

and thus unnecessary, because the BIA is without juris-

diction to decide constitutional questions, such as the due

process question he presented to the district court. In re-

lying on the futility exception, Mr. Gonzalez faces a heavy

burden because futility only exists if there is “no reasonable

prospect that [Mr. Gonzalez] could obtain any relief” by

pursuing an appeal to the BIA. Health Equity Res. Urbana,

Inc. v. Sullivan, 927 F.2d 963, 965 (7th Cir. 1991). Although

we ultimately agree that futility’s high standard is met in

this case, we cannot accept Mr. Gonzalez’s suggested broad

rationale for this holding.

Mr. Gonzalez’s challenge is ultimately a constitutional

one, and an exception to the exhaustion requirement has

No. 03-1527 13

been carved out for constitutional challenges to Agency

procedures because the BIA has no jurisdiction to adjudicate

constitutional issues. See Rashtabadi v. INS, 23 F.3d 1562,

1567 (9th Cir. 1994). Although his ultimate challenge is

constitutional, the premise of his constitutional argument is

statutory. Mr. Gonzalez argues that, because he has raised

a good-faith argument that he is not in fact deportable

under the statute, to mandatorily detain him under § 1226(c)

would violate his rights to due process under the law. His

predicate statutory argument regarding his deportability is

that he was not “convicted” for purposes of 8 U.S.C. §§

1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i), and therefore, he was

not legally “deportable” under those sections or eligible for

mandatory detention under § 1226(c)(1)(B).

Although it is not entirely clear from the record, the IJ

apparently rejected this statutory argument at the Joseph

hearing. See R.6, Ex.2. It is unquestionable that the BIA

could have considered that predicate statutory argument on

an appeal from the IJ’s determination. See, e.g., In re Salazar-

Regino, 23 I. & N. Dec. 223, 2002 BIA LEXIS 2 (BIA 2002)

(considering whether an alien who received “deferred

adjudication” had been “convicted” for immigration

purposes). It is likewise clear that the BIA could have

granted Mr. Gonzalez relief, in the form of an order com-

pelling the IJ to perform an individualized bond hearing, if

it found his statutory contention meritorious. Indeed, as

discussed at the outset of our discussion, a whole web of

procedural mechanisms are set out in the regulations and

decisions interpreting them for the very purpose of allowing

both the IJ and BIA the opportunity to determine that an

alien does not fall within § 1226(c) before he is mandatorily

detained.

Thus, the question becomes whether, by framing his chal-

lenge as one of constitutionality, with the statutory issue as

14 No. 03-1527

a mere predicate to that argument, a detainee such as Mr.

Gonzalez may skip bringing the statutory issue before the

BIA. As a general rule, the answer to that question must be

no. The Supreme Court has set out two purposes for

exhaustion: “protecting administrative agency authority and

promoting judicial efficiency.” McCarthy, 503 U.S. at 145; see

also Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.

1993). Requiring exhaustion in this circumstance fits both.

As to administrative authority, we must bear in mind that

the Agency has particular expertise in interpreting the INA.

See McCarthy, 503 U.S. at 145 (“Exhaustion concerns apply

with particular force . . . when the agency proceedings in

question allow the agency to apply its special expertise.”).

Also, as a matter of comity, the Agency should have the

opportunity, without reaching the constitutional issue, to

provide the petitioner the ultimate relief requested in the

first instance. Id. (“[T]he exhaustion doctrine recognizes the

notion, grounded in deference to Congress’ delegation of

authority to coordinate branches of Government, that

agencies, not the courts, ought to have primary responsibil-

ity for the programs that Congress has charged them to

administer.”). In this case, if the BIA had concluded that Mr.

Gonzalez’s statutory contention had merit, it could have

ordered an individualized bond determination hearing,

which was the same relief ordered by the district court

through a writ of habeas corpus.

In terms of judicial efficiency, under these circumstances,

the BIA “could well resolve any controverted matter with-

out the need for involvement by the federal courts.” Duvall

v. Elwood, 336 F.3d 228, 232 (3d Cir. 2003); see also McCarthy,

503 U.S. at 145 (“When an agency has the opportunity to

correct its own errors, a judicial controversy may well be

mooted, or at least piecemeal appeals may be avoided.”). If

not, we are always available “to consider any constitutional

No. 03-1527 15

challenge upon completion of the administrative proceed-

ings.” Duvall, 336 F.3d at 232. Furthermore, in adjudicating

such a challenge, we normally will benefit not only from a

more complete record, but also from the agency’s expertise

on questions presented to us, such as statutory questions

tied to broader constitutional issues. See McCarthy, 435 U.S.

at 145 (“[E]ven where a controversy survives administrative

review, exhaustion of the administrative procedure may

produce a useful record for subsequent judicial consider-

ation, especially in a complex or technical factual context.”).

For these reasons, we hold that a petitioner with a statutory

argument that has a reasonable prospect of affording him

relief may not skip the administrative process and go

straight to federal court by simply reconstituting his claim

as constitutional and claiming futility. See Health Equity Res.

Urbana, 927 F.2d at 965; see also Mojsilovic v. INS, 156 F.3d

743, 748 (7th Cir. 1998) (“Although due process claims do

not usually require exhaustion because the [BIA] cannot

adjudicate constitutional issues, the requirement applies

when the petitioner’s claim involves procedural errors

correctable by the administrative tribunal.” (internal

quotation and citation omitted)).

That does not end our inquiry in this case, however,

because it appears that Mr. Gonzalez had “no reasonable

prospect [of obtaining] any relief” by an appeal to the BIA

because the BIA had clearly and repeatedly taken a position

contrary to Mr. Gonzalez’s lone statutory contention. Health

Equity Res. Urbana, 927 F.2d at 965. Mr. Gonzalez advanced

that he was not within § 1226(c)’s mandatory detention

ambit because his Illinois probationary disposition did not

count as a “conviction” for immigration purposes. How-

ever, the BIA held in In re Roldan-Santoyo, 22 I. & N. Dec.

512, 1999 BIA LEXIS 7 (BIA 1999), that “conviction” for

immigration purposes is not defined by state law, but by

16 No. 03-1527

8 U.S.C. § 1101(a)(48)(A), under which Mr. Gonzalez’s

6

Illinois disposition counts as a “conviction.” The BIA

strongly reaffirmed that position in In re Salazar-Regino, 23

I. & N. Dec. 223, 2002 BIA LEXIS 2 (BIA Feb. 14, 2002),

approximately eight months before the IJ held on October

17, 2002, that Mr. Gonzalez fell within § 1226(c)’s ambit

because he was “convicted” for immigration purposes.

As counsel for the Government noted at oral argument,

the BIA’s decision in Salazar-Regino made clear that the

BIA deemed his statutory contention to be without merit.

Furthermore, there is nothing to indicate the BIA would

7

change its position. Therefore, appealing to the BIA would

6

8 U.S.C. § 1101(a)(48)(A) provides:

The term “conviction” means, with respect to an alien, a

formal judgment of guilt of the alien entered by a court or, if

adjudication of guilt has been withheld, where (i) a judge or

jury has found the alien guilty or the alien has entered a plea

of guilty or nolo contendere or has admitted sufficient facts

to warrant a finding of guilt, and (ii) the judge has ordered

some form of punishment, penalty, or restraint on the alien’s

liberty to be imposed.

This court was faced with a plea of guilty and probationary

disposition under 720 ILCS 570/410 in Gill v. Ashcroft, 335 F.3d

574 (7th Cir. 2003), and concluded the “plea of guilty satisfies part

(i) of [§ 1101(a)(48)(A)], and the term of probation satisfies part

(ii), so he has been ‘convicted’ even though ‘adjudication of guilt

has been withheld.’ ” Id. at 576 (quoting 8 U.S.C.

§ 1101(a)(48)(A)).

7

To the contrary, it appears the BIA was firm in its view that

“conviction” is defined by 8 U.S.C. § 1101(a)(48)(A), and not state

law, at the time the IJ rejected Mr. Gonzalez’s statutory argument

on October 17, 2002. This is demonstrated not only by Roldan-

Santoyo and Salazar-Regino, but also by the fact that on July 15,

(continued...)

No. 03-1527 17

have been “futile” because the BIA had “predetermined”

the statutory issue, Iddir, 301 F.3d at 498, and Mr. Gonzalez

had “no reasonable prospect” of obtaining relief, Health

Equity Res. Urbana, 927 F.2d at 965. See Atlantic Richfield

Co. v. United States Dep’t of Energy, 769 F.2d 771, 782 (D.C.

Cir. 1984) (“[E]xhaustion is not required where, as here, it is

highly unlikely that the [agency] would change its posi-

tion.” (internal quotation and citation omitted)); 3 Charles

H. Koch, Jr., Administrative Law and Practice § 13.22[9], at 351

(2d ed. 1997) (“Where the agency has ruled on the issue in

a proceeding involving another party, the exhaustion

8

requirement may be satisfied.”).

C. Due Process Claim

The district court issued a writ of habeas corpus because

it held that, as applied to Mr. Gonzalez, § 1226(c) violated

due process because Mr. Gonzalez’s statutory contention

posed a “serious substantive legal question” regarding his

deportability. R.8 at 2. We review a district court’s decision

7

(...continued)

2002, the BIA summarily affirmed an IJ’s holding that

a petitioner’s conviction and probationary disposition under

720 ILCS 570/410(g), the same Illinois statute governing Mr.

Gonzalez’s probationary disposition, is a “conviction” for

immigration purposes under 8 U.S.C. § 1101(a)(48)(A). See

Appellant’s Opening Brief at 5-6 & n.2, Gill v. Ashcroft, 335 F.3d

574 (7th Cir. 2003) (No. 02-2994).

8

Cf. Lampkins v. Gagnon, 710 F.2d 374, 375 (7th Cir. 1983)

(holding that exhaustion in Wisconsin state court was not re-

quired where recent decisions of the Wisconsin Supreme Court

made it clear that pursuit of the prisoner’s claims would have

been futile).

18 No. 03-1527

to grant a writ of habeas corpus de novo. See Ward v. Sternes,

334 F.3d 696, 704 (7th Cir. 2003). We also review constitu-

tional questions and non-constitutional questions of law de

novo. See United States v. Israel, 317 F.3d 768, 770 (7th Cir.

2003); APS Sports Collectibles, Inc. v. Sports Time, Inc., 299

F.3d 624, 628 (7th Cir. 2002).

The Supreme Court has instructed that government

detention is inconsistent with due process unless the de-

tention is “ordered in a criminal proceeding with adequate

procedural protections, or, in certain special and narrow

nonpunitive circumstances where a special justification,

such as harm-threatening mental illness, outweighs the

individual’s constitutionally protected interest in avoiding

physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690

(2001) (internal quotations and citations omitted). After this

case was decided by the district court, the Supreme Court

squarely held in Demore v. Kim, 123 S. Ct. 1708 (2003),

that “[d]etention during removal proceedings [pursuant to

§ 1226(c)] is a constitutionally permissible part of the

process.” Id. at 1721-22. This is the same result that this

court reached in Parra v. Perryman, 172 F.3d 954, 958 (7th

Cir. 1999). In both Kim and Parra, however, the detainees

at issue conceded their deportability. See Kim, 123 S. Ct.

at 1717; Parra, 172 F.3d at 958. Indeed, Kim’s holding was

expressly premised on that fact: “The INS detention of

respondent, a criminal alien who has conceded that he is de-

portable,” is constitutional. Kim, 123 S. Ct. at 1722 (emphasis

added); see also Parra, 172 F.3d at 958 (accord). These cases,

therefore, left open the question of whether mandatory

detention under § 1226(c) is consistent with due process

when a detainee makes a colorable claim that he is not in

fact deportable. Before Kim, but after Parra, several district

courts in our circuit held that § 1226(c) is unconstitutional as

applied to detainees who have a good-faith claim that they

No. 03-1527 19

will ultimately be permitted to remain in the country. See,

e.g., Bonsol v. Perryman, 240 F. Supp. 2d 823, 827 (N.D. Ill.

2003).

It is not necessary, however, for this court to reach this

important issue in this case. After the district court’s deci-

sion in this case, this court decided Gill v. Ashcroft, 335

F.3d 574 (7th Cir. 2003). Gill squarely rejected the argument

that Mr. Gonzalez advanced before the district court that he

was not in fact “deportable”: that “convict[ion]” for immi-

gration purposes is defined by state law, and that he was

not “convicted” according to Illinois law because he only

received a disposition of probation. See 720 ILCS 570/410(g)

(mandating that a disposition of probation is not a “convic-

tion”). Specifically, Gill held that the definition of “convic-

tion” for immigration purposes is governed by 8 U.S.C. §

1101(a)(48)(A), and that a probationary disposition under

720 ILCS 570/410 following a plea of guilty qualifies as a

“conviction” under that definition. See Gill, 335 F.3d at 579.

Gill, in effect, stripped Mr. Gonzalez of the predicate

argument underlying his constitutional claim—that he has

raised a “good-faith challenge” to his deportability—and

likewise rendered void the district court’s determination

that Mr. Gonzalez had posed a “serious substantive legal

question” regarding his deportability. In the language of

Parra, after Gill, Mr. Gonzalez’s “legal right to remain in the

United States ha[d] come to an end.” Parra, 172 F.3d at 958.

Mr. Gonzalez agrees that “Gill addresses the issue of

his removability,” but argues that issue is not “dispositive”

in this case. Appellee’s Br. at 13. Although his argument

in this regard is not entirely clear, he appears to be argu-

ing that the mere fact that he contests his deportability,

regardless of whether that contention is meritless or not,

is enough to take him outside the reach of Kim and Parra. As

20 No. 03-1527

an initial matter, this position cuts against the very argu-

ment he emphasized to this court: that § 1226(c) is unconsti-

tutional as applied to detainees with a good-faith argument

that they are not in fact deportable. A distinction between

petitioners who raise facially meritless claims and those

who concede their deportability is one of form and not sub-

stance. Both are without a legal right to remain in the

United States. See Parra, 172 F.3d at 958.

Furthermore, such a distinction cannot be squared with

the Supreme Court’s decision in Kim. The Court in Kim held

that “[d]etention during removal proceedings is a con-

stitutionally permissible part of the process.” Kim, 123 S. Ct.

at 1722. Again, under Mr. Gonzalez’s theory, § 1226(c)

would be violative of due process, and thus could be

avoided, when a detainee makes any claim, no matter how

ridiculous, that he is not in fact deportable. If that position

is correct, Kim’s holding is practically void, as is the con-

gressional purpose behind § 1226(c) “of preventing

deportable criminal aliens from fleeing prior to or during

their removal proceedings, thus increasing the chance that,

if ordered removed, the aliens will be successfully re-

moved,” a congressional purpose the Court in Kim accorded

significant weight. Id. at 1720.

A wholly different case arises when a detainee who has a

good-faith challenge to his deportability is mandatorily

detained under § 1226(c). See Kim, 123 S. Ct. at 1738 (Souter,

J., dissenting) (“Some individual aliens covered by § 1226(c)

have meritorious challenges to removability or claims for

relief from removal. See Brief for Citizens and Immigrants

for Equal Justice et al. as Amici Curiae 10-20. As to such

aliens . . . the Government has only a weak reason under the

immigration laws for detaining them.”). However, this is

not such a case. We therefore hold that, because Kim and

No. 03-1527 21

Parra control this case, Mr. Gonzalez’s due process chal-

lenge to § 1226(c) must fail.

Conclusion

For the foregoing reasons, we reverse the judgment of the

district court.

REVERSED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-21-04