Fonseca-Sanchez, Ame v. Gonzales, Alberto

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2387

AMERICA FONSECA-SANCHEZ,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of a Decision

of the Board of Immigration Appeals.

No. A91-297-177

____________

ARGUED FEBRUARY 8, 2007—DECIDED APRIL 13, 2007

____________

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. The Immigration and Customs

Enforcement (“ICE”) branch of the Department of Home-

land Security (“DHS”) issued a Final Administrative

Removal Order (“FARO”) to America Fonseca-Sanchez,

directing her removal from the United States. Fonseca-

Sanchez then petitioned the Citizenship and Immigration

Service (“CIS”) for interim relief under the “U” visa statute

to avoid removal. Because DHS had not (and still has

not) issued final “U” visa regulations to determine eligibil-

ity, CIS relied upon criteria contained in what it calls

“guidance memoranda” issued by DHS. Based on those

2 No. 06-2387

documents, CIS denied Fonseca-Sanchez’s petition on

grounds that she had been engaged in criminal activity and

she already had been issued a final order of removal.

Fonseca-Sanchez now petitions this court to review CIS’

decision to deny her interim “U” visa relief. Because

Fonseca-Sanchez failed to exhaust her administrative

remedies by not claiming a right to interim “U” visa relief

prior to ICE’s issuance of the FARO, and because this

court’s jurisdiction under 8 U.S.C. § 1252 is limited to direct

review of final orders of removal and matters decided by

ICE in the course of removal proceedings, we dismiss

Fonseca-Sanchez’s petition for lack of jurisdiction.

I.

America Fonseca-Sanchez, a Mexican national, illegally

entered the United States in 1978 at the age of eight, and

illegally resided here until her removal in July 2006. Dur-

ing her residence in the United States, Fonseca-Sanchez

gave birth to four children. Jose Martinez, Fonseca-

Sanchez’s former common-law husband, is the father of

two of her children. On at least one occasion in 2003,

Martinez was charged with domestic battery of Fonseca-

Sanchez, and she provided local police with helpful testi-

mony regarding the underlying facts that were essential

to their investigation of Martinez.1

1

Fonseca-Sanchez submitted as evidence in support of her

petition for interim “U” visa relief three police reports for

domestic batteries committed against her by Martinez, which

occurred on March 4, 2000, April 27, 2002, and March 24, 2003.

She also included in her “U” visa petition a letter of support

(continued...)

No. 06-2387 3

Unfortunately for Fonseca-Sanchez, she had her own

problems with the law. On December 16, 2002, she pleaded

guilty to shoplifting from a Target store merchandise

worth more than $150. She was fined and sentenced to 24

months of probation. On December 13, 2004, Fonseca-

Sanchez was convicted of retail theft for shoplifting

merchandise worth more than $150 from a J.C. Penney

store and with contributing to the delinquency of a minor.

She was sentenced to 92 days in jail and 24 months of

probation. On August 25, 2005, Fonseca-Sanchez vio-

lated her probation by missing appointments with her

probation officer, and she was resentenced for both of-

fenses to three years’ imprisonment in the Illinois Depart-

ment of Corrections. On April 26, 2006, Fonseca-Sanchez

was released from the Illinois Department of Corrections

and directly transferred into ICE’s custody and detained

at the McHenry County Jail in Woodstock, Illinois.

In the meantime, on April 3, 2006, pursuant to 8 U.S.C.

§ 1228(b), which provides for expedited removal of aliens

convicted of aggravated felonies, ICE served Fonseca-

Sanchez with a Notice of Intent to Issue a Final Administra-

tive Removal Order (“Notice of Intent”). Aliens subject to

removal under this expedited procedure do not appear

before an Immigration Judge. See 8 C.F.R. § 238.1 (setting

1

(...continued)

from an officer of the DuPage County Sheriff Department. That

letter, however, only references the March 22, 2003, incident,

and it states that Fonseca-Sanchez provided testimony regard-

ing “the underlying facts [that were] essential to the investiga-

tion” of that incident. The officer’s letter does not mention

whether Martinez was convicted of the domestic violence

charge.

4 No. 06-2387

forth procedures). Instead, an ICE officer issues a Notice

of Intent, to which the alien has ten calendar days to file a

response and rebut the charges. 8 C.F.R. § 238.1(b)(2), (c)(1).

If the alien does not rebut the charges within ten calendar

days, an ICE Supervisory Deportation Officer issues a Final

Administrative Removal Order (“FARO”) and can remove

the alien fourteen days after issuance of that order. 8 C.F.R.

§ 238.1(d).

It is undisputed that Fonseca-Sanchez did not rebut the

charges in the Notice of Intent or make any other response

within the ten-calendar-day period following the order.2

Accordingly, on May 2, 2006, ICE issued to Fonseca-

Sanchez a FARO pursuant to 8 U.S.C. § 1101(a)(43)(G),3

finding that she was not a lawful permanent resident and

had been convicted of an aggravated felony. ICE then

ordered Fonseca-Sanchez removed to Mexico. Fonseca-

Sanchez does not challenge that she was removable based

on her criminal convictions.

On May 11, 2006, nine days after ICE issued the FARO to

Fonseca-Sanchez, she submitted to CIS a petition for

interim relief under the “U” visa statute and requested that

ICE stay her removal.4 In a letter dated May 18, 2006, CIS

2

ICE is compelled to issue a FARO if the alien does not re-

spond to the Notice of Intent. 8 C.F.R. § 238.1(d)(1).

3

Section 1101(a)(43)(G) states that an alien is subject to removal

if convicted of “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprison-

ment is at least one year.” 8 U.S.C. § 1101(a)(43)(G).

4

With the enactment of the Victims of Trafficking and Violence

Protection Act of 2000 (“VTVPA”), Congress created the “U”

(continued...)

No. 06-2387 5

responded to Fonseca-Sanchez’s petition, stating that it

was “not able to grant [her] interim relief” because she had

“engaged in criminal activity” and she was “currently in

immigration proceedings or ha[d] a final order of re-

moval.”5 The letter also stated, “[y]ou may submit docu-

4

(...continued)

nonimmigrant classification (“U” visa) for victims of certain

qualifying criminal activity, including victims of domestic

violence, sexual assault, trafficking of aliens, and other crimes.

VTVPA, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464,

1533-34 (2000) (codified at 8 U.S.C. § 1101(a)(15)(U)). The “U”

visa was intended to provide temporary legal status to such

victims who cooperate with officials during investigations

and prosecutions. Id. Congress empowered the Attorney General

(now the Secretary of Homeland Security) with discretion to

convert the status of such immigrants to permanent residents

“when doing so is justified on humanitarian grounds, for

family unity, or is otherwise in the public interest,” but it did

not provide a deadline for affected agencies to promulgate

regulations with respect to “U” visas. VTVPA, Pub. L. No. 106-

386, § 1513(a)(2)(C), 114 Stat. 1464, 1534. In 2005, with no “U”

visa regulations yet promulgated, Congress passed the Violence

Against Women Act of 2005 (“VAWA 2005”), which the Presi-

dent signed on January 5, 2006. VAWA 2005, Pub. L. No. 109-

162, 119 Stat. 2960 (2006). That act stipulated that the Attorney

General, Secretary of Homeland Security, and the Secretary of

State shall promulgate regulations to implement the “U” visa

sections of the VTVPA “not later than 180 days after the date of

enactment.” VAWA 2005, Pub. L. No. 109-162, § 828, 119 Stat.

2960, 3066 (codified at 8 U.S.C. § 1101). The deadline for the

enactment of those regulations passed on July 4, 2006. To date,

the final regulations have not been published.

5

In the absence of final regulations, the Department of Home-

land Security continues to work from interim guidance memo-

(continued...)

6 No. 06-2387

5

(...continued)

randa. The guidance memorandum issued by the INS on August

30, 2001, states that the principles that it set forth were “intended

solely to guide INS personnel in performing their duties,” and

that “[t]hey [were] not intended to, do not, and may not be

relied upon to create a right or benefit, substantive or proce-

dural, enforceable at law by any individual or other party in

removal proceedings, in litigation with the United States, or in

any other form or manner.” Mem. from Michael D. Cronin to

Michael A. Pearson re VTVPA Policy, at 6 (Aug. 30, 2001).

Specifically, the guidance memoranda require CIS personnel to

identify possible “U” visa eligible victims, and to use available

mechanisms, such as parole, deferred action, continuances, and

stays of removal, to ensure, at the agency’s discretion, that no

potential “U” visa eligible victims are removed from the

country. Id. at 2. Of particular relevance here, CIS’ October 8,

2003, guidance memorandum stated that its employees would

not have jurisdiction to grant relief to aliens who had been

convicted of an aggravated felony, or who were in removal

proceedings, or subject to a final order of removal. Mem. from

William R. Yates to Director, Vermont Service Center re Central-

ization of Interim Relief for U Nonimmigrant Status Applica-

tions, at 2 (Oct. 3, 2003). Currently, there is no official applica-

tion form to apply for a “U” visa; thus, aliens who believe they

qualify for interim relief may submit correspondence along

with evidentiary proof that address the four criteria listed in

8 U.S.C. § 1101(a)(15)(U)(i)(I-IV). Id. at 2-5. If the applicant does

not submit sufficient information to establish prima facie

eligibility, or is otherwise determined to be ineligible for interim

relief, the applicant receives a letter indicating the reason(s) that

the agency could not grant interim relief. Id. at 5. Beginning in

October 2005, all such requests are processed at CIS’ Vermont

Service Center. Id. at 2. DHS, acting through CIS’ Vermont

Service Center, has exclusive authority to adjudicate requests for

(continued...)

No. 06-2387 7

mentation to overcome these deficiencies.” Fonseca-

Sanchez then provided supplemental information to CIS,

to which CIS responded by issuing an identical denial

letter, only this time dated July 28, 2006. On May 16, 2006,

two days prior to receiving her initial denial letter from CIS

regarding her preliminary “U” visa application, Fonseca-

Sanchez filed in this court the present petition for review

of CIS’ denial of her “U” visa application pursuant to

8 U.S.C. §§ 1228(b)(3) and 1252.6

II.

Fonseca-Sanchez’s petition for review is a direct appeal

of CIS’ decision to deny her petition for interim “U” visa

relief, which if granted would have effectively stayed the

FARO issued against her. Her “U” visa claims have been

5

(...continued)

“U” visa interim relief of deferred action, and neither ICE nor

Immigration Judges have authority to issue “U” visa interim

relief. See 8 U.S.C. § 1103(a)(3).

6

It is unclear why Fonseca-Sanchez filed her petition for re-

view prior to receiving the initial denial letter from CIS.

Fonseca-Sanchez’s May 16, 2006, petition for review filed in this

court states that she is challenging the FARO entered on May 2,

2006, but her briefs in support of her petition for review focus

exclusively on CIS’ May 18, 2006, denial of her interim “U” visa

petition. Because Fonseca-Sanchez’s substantive arguments only

address CIS’ denial of her interim “U” visa petition, and

Fonseca-Sanchez concludes that she was removable for the

reasons set forth in the Notice of Intent, we restrict our analysis

to whether this court has jurisdiction over Fonseca-Sanchez’s

interim “U” visa claims, rather than whether DHS properly

issued the FARO.

8 No. 06-2387

reviewed by neither an Immigration Judge nor by the

Board of Immigration Appeals. The threshold question

we must answer is whether this court may exercise juris-

diction over Fonseca-Sanchez’s petition. We review the

jurisdictional and legal issues raised in Fonseca-Sanchez’s

petition de novo. See Gattem v. Gonzales, 412 F.3d 758, 763

(7th Cir. 2005) (“Generally speaking, we review ques-

tions of law, including jurisdictional questions, de novo.”).

This court’s jurisdiction is limited to direct review of

“final order[s] of removal” and matters decided by ICE

in the course of removal proceedings. 8 U.S.C. §§ 1252(a)(1)

and 1252(a)(5).7 To preserve her “U” visa claim for review

by this court, Fonseca-Sanchez was required to exhaust her

administrative remedies available as of right before the

issuance of the final order of removal. 8 U.S.C. § 1252(d)(1)

(stating that “a court may review a final order of removal

only if—(1) the alien has exhausted all administrative

remedies available to the alien as of right . . . .”). The

removal procedure at issue here—the expedited removal

regime under § 1228(b)—provides a ten-calendar-day

period following the issuance of the Notice of Intent during

7

Section 1252(a)(5) states:

(5) Exclusive means of review

Notwithstanding any other provision of law (statutory or

nonstatutory), including section 2241 of Title 28, or any

other habeas corpus provision, and sections 1361 [Manda-

mus Act] and 1651 [All Writs Act] of such title, a petition for

review filed with an appropriate court of appeals in accor-

dance with this section shall be the sole and exclusive means for

judicial review of an order of removal entered or issued

under any provision [in the Immigration and Naturaliza-

tion Act] . . . .8 U.S.C.A. § 1252(a)(5) (emphasis added).

No. 06-2387 9

which the alien may request administrative review of

claims that might be raised. 8 C.F.R. § 238.1. If the alien

files a response to the Notice of Intent, that response is

made a part of the record of proceedings for judicial

review. 8 U.S.C. § 1228(b)(4)(C); 8 C.F.R. § 238.1(h). It is

undisputed that Fonseca-Sanchez did not file a response

to the Notice of Intent prior to ICE’s issuance of the FARO,

nor did she request an extension of time to do so. Although

ICE did not have authority to grant interim “U” visa relief,

see infra n.4, it did have the authority to stay Fonseca-

Sanchez’s removal proceedings or decline to issue a FARO

if it was aware that Fonseca-Sanchez had applied to CIS

for interim “U” visa relief. Fonseca-Sanchez, however,

failed to raise any objections to her removal, including her

present “U” visa claim. Furthermore, Fonseca-Sanchez

filed her petition for review in this court two days prior

to CIS’ original denial of her interim “U” visa petition. Her

filing also was over two months before CIS issued its second

denial based on Fonseca-Sanchez’s submission of addi-

tional evidence. Therefore, her present petition for review

clearly was filed before she had even received an answer

from CIS, let alone exhausted that administrative process.

Accordingly, we find that Fonseca-Sanchez failed to

exhaust her administrative remedies with respect to her

“U” visa claim and hold that this court lacks jurisdiction

to hear her petition.

This court would still lack jurisdiction, even if we were

to find that Fonseca-Sanchez’s post-FARO interim “U” visa

claim was not barred by her failure to exhaust her adminis-

trative remedies following the issuance of the Notice of

Intent. Jurisdiction under 8 U.S.C. § 1252 would fail

because her claims are not based on a “final order of

removal” or a matter decided by ICE in the course of

10 No. 06-2387

removal proceedings. 8 U.S.C. §§ 1252(a)(1) and 1252(a)(5).

Fonseca-Sanchez filed her “U” visa petition after she

was issued the FARO. The only question remaining is

whether her “U” visa petition could be considered part

of the final order of removal. As we previously have

noted, the Supreme Court has instructed that the term

“ ‘final orders of deportation’ should be read to include

not only the actual order of deportation, but all orders

closely related to the deportation proceeding conducted

pursuant to 8 U.S.C. § 1252(b) and entered during the

proceeding, such as an order denying voluntary departure

or an adjustment of status.” Carvajal-Munoz v. INS, 743 F.2d

562, 566 (7th Cir. 1984) (citing Foti v. INS, 375 U.S. 217, 220-

23 (1963) (construing former § 1105(a), which was the

predecessor to the current § 1252)). “Ancillary determina-

tions made outside the context of a proceeding under

8 U.S.C. § 1252(b), however, such as granting a stay of

deportation, are not subject to direct review.” Id. Thus,

“[o]nly matters ‘ “intimately associated and immediately

associated’ ” with the final order or ‘governed by the

regulations applicable to the deportation proceeding itself,

and . . . ordinarily presented to the special inquiry officer

[immigration judge] who entered the deportation order’

fall within the ambit of direct appellate review.” Id. (quot-

ing Cheng Fan Kwok v. INS, 392 U.S. 206, 217 (1968) (cita-

tions omitted)). Here, Fonseca-Sanchez’s petition to CIS

for interim relief under the “U” visa statute was made

after ICE issued the FARO, and therefore it was outside of

the expedited removal proceedings commenced and

concluded by ICE. CIS’ subsequent denial of Fonseca-

Sanchez’s petition was separate and apart from the re-

moval proceedings and not “closely related” to the FARO.

In other words, CIS’ denial was an ancillary determination

made outside of the context of a proceeding under

No. 06-2387 11

§ 1252(b). Accordingly, this court lacks jurisdiction to

exercise direct review over Fonseca-Sanchez’s petition.

As a final matter, we note that at the heart of Fonseca-

Sanchez’s petition is a challenge to DHS’ current interpre-

tation of the statutory language creating the “U” visa

classification set forth in CIS’ guideline memoranda.

Specifically, Fonseca-Sanchez contends that there is no

basis in the text of the “U” visa statute for the guideline

memoranda’s disqualification of any petitioner who was

convicted of an aggravated felony or who has been subject

to a FARO. While a direct petition raising such a claim is

not within this court’s limited jurisdiction, the govern-

ment indicated that a potential proper means and forum

for such a claim could be an action in the appropriate

district court under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 701, et seq. Fonseca-Sanchez, however,

did not bring her claims under the APA, and therefore

we need not address the propriety of such a challenge and

lack jurisdiction to consider the merits of her claim.

III.

This court lacks jurisdiction over Fonseca-Sanchez’s

direct petition for review of CIS’ denial of her petition for

interim “U” visa relief because she failed to exhaust her

administrative remedies when she did not raise that issue,

or any other issue, in response to ICE’s Notice of Intent

prior to being issued a FARO. Moreover, there is no basis

in 8 U.S.C. § 1252 for this court to exercise jurisdiction over

CIS’ denial of Fonseca-Sanchez’s petition for interim “U”

visa relief. Accordingly, Fonseca-Sanchez’s petition for

review is DISMISSED.

12 No. 06-2387

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-13-07