In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2697

LUIS F. PADILLA,

Petitioner-Appellant,

v.

ALBERTO R. GONZALES and

DEBORAH ACHIM,

Respondents-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 1716—Samuel Der-Yeghiayan, Judge.

____________

Converted to a Petition for Review from an Order of

the Board of Immigration Appeals.

No. A41-123-489

____________

ARGUED APRIL 11, 2006—DECIDED DECEMBER 7, 2006

____________

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. The Board of Immigration

Appeals (“BIA”) ordered Luis Padilla removed to his

native Mexico because he committed two crimes of moral

turpitude. Padilla petitioned this court for review of the

BIA’s removal order and we dismissed his petition, leaving

the removal order intact. Before federal immigration

authorities got around to removing him, Padilla persuaded
2 No. 05-2697

an Illinois court to vacate the two convictions that supplied

the basis for his removal. Rather than asking the BIA

to reopen his case in light of his vacated convictions,

Padilla petitioned a federal district court for a writ of

habeas corpus. He asked the district court to find him

admissible to the United States and to order the Department of Homeland Security to terminate its removal

proceedings against him. The district court denied

Padilla’s habeas petition, and Padilla took this appeal.

Under the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat.

231, we construe Padilla’s habeas appeal as a petition for

review and conclude we lack jurisdiction to consider its

merits because Padilla did not exhaust his administrative remedies. We therefore dismiss the petition.

I. Background

Padilla became a lawful permanent resident of the

United States in 1986. In 1989 he pleaded guilty to an

Illinois charge of criminal sexual abuse. 720 ILL. COMP.

STAT. 5/12-15. Two years later he pleaded guilty to obstruction of justice. 720 ILL. COMP. STAT. 5/31-4. At some point

Padilla left the United States, then attempted reentry on

May 7, 2000. Upon his return to the United States, federal

immigration authorities placed Padilla into removal

proceedings because of his criminal record. Those administrative proceedings concluded on February 27, 2004, when

the BIA found Padilla had committed two crimes involving moral turpitude—criminal sexual abuse and obstruction of justice—and ordered his removal to Mexico. See 8

U.S.C. § 1182(a)(2)(A) (alien who commits a crime of moral

turpitude is inadmissible). Padilla petitioned this court

for review of the BIA’s removal order. In an opinion dated

February 22, 2005, we dismissed his petition and the

removal order remained in effect. Padilla v. Gonzales, 397

F.3d 1016, 1021 (7th Cir. 2005) (agreeing with BIA’s
No. 05-2697 3

determination that obstruction of justice under Illinois law

is a crime of moral turpitude, and foreclosing Padilla’s

efforts to rely on § 1182(a)(2)(A)(ii)’s so-called “petty

offense” exception for aliens who have committed only one

crime of moral turpitude).

The Department of Homeland Security told Padilla to

report for removal to Mexico on May 10, 2005. Padilla then

moved the Illinois state court to withdraw the guilty

pleas that led to his 1989 sexual abuse conviction and his

1991 obstruction of justice conviction. His motion also

asked the state court to vacate and set aside those two

convictions. Padilla argued that his pleas were invalid in

light of a new Illinois law that went into effect on January

1, 2004. The new law provides, in relevant part:

Before the acceptance of a plea of guilty[,] . . . the court

shall give the following advisement to the defendant

in open court:

“If you are not a citizen of the United States, you are

hereby advised that conviction of the offense for

which you have been charged may have the consequences of deportation, exclusion from admission to

the United States, or denial of naturalization under

the laws of the United States.”

725 ILL. COMP. STAT. 5/113-8. The state court granted

Padilla’s motions on the same day he filed them, March 11,

2005. The court’s order—which was handwritten by

Padilla’s counsel—permitted Padilla to withdraw his guilty

pleas and vacated his sexual abuse and obstruction of

justice convictions. The order does not explain why the

state judge thought a law that became effective in January

2004 provided grounds to vacate judgments of conviction

entered in 1989 and 1991.

On the basis of his newly vacated convictions, Padilla

petitioned the district court for the Northern District of

Illinois for a writ of habeas corpus pursuant to 28 U.S.C.
4 No. 05-2697

§ 2241. He asked the district court to declare him admissible to the United States and to order the Department of

Homeland Security to cease its efforts to remove him. As

Padilla’s May 10 removal date approached, the district

court held several hearings on his habeas petition. At an

April 28 hearing the court and parties discussed the

necessity of asking the BIA to reopen Padilla’s case to

consider the vacation of his convictions:

THE COURT: Are you contemplating on going before

the immigration court or the BIA? I think BIA made

the final administrative decision in this case to see

if they would vacate or reconsider their decision based

on the new developments.

[PADILLA’S COUNSEL]: It would be necessary to go

before the Board of Immigration Appeals, your Honor.

THE COURT: In the first instance?

[PADILLA’S COUNSEL]: Yes.

THE COURT: And then if they decide to reconsider or

reopen, then they would send it to the immigration

court?

[PADILLA’S COUNSEL]: Correct.

THE COURT: [Government’s counsel], would that be

your understanding also?

[GOVERNMENT’S COUNSEL]: Yes, your honor. On

the circumstances of this case, yes; that’s correct.

. . . .

THE COURT: The proper authorities, really, on an

issue like this should be the immigration court and the

Board of Immigration Appeals because they’re the

ones who entered the removal order and they’re the

only ones who could vacate the removal order or

reopen.
No. 05-2697 5

1 8 C.F.R. § 1003.2(c)(2) and (3)(iii) (alien must file motion to

reopen within ninety days of the final administrative decision,

but the ninety-day limitation is waived if all parties join in the

motion).

2 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or

reconsider on its own motion any case in which it has rendered

a decision.”).

The court and parties agreed that Padilla would prepare a motion asking the BIA to reopen his case. Although

Padilla’s ninety-day period for filing a motion to reopen

had long since expired, if the government joined in his

motion, he could file it beyond the ninety days.1

 The

government said it would decide whether to join Padilla’s

motion before his May 10 removal date. The parties

reconvened before the district court on May 9. Padilla’s

counsel had prepared the motion as agreed, but the

government had still not decided whether to join in it. At

a 9 a.m. hearing the next morning, three hours before

Padilla was to report for removal to Mexico, the government informed the district court and Padilla’s counsel

that it would not join in his motion to reopen. Counsel for

the government said Padilla could ask the BIA to exercise

its authority to reopen his case sua sponte at any time.2

Padilla’s counsel responded, “[T]he only problem is that

even if there were such a provision—and I believe that

there is—the other problem for Mr. Padilla is that he

has a 12:00 o’clock surrender time.” Padilla never filed

any motion asking the BIA to reopen his case to consider

the effect of his vacated convictions on the order of removal.

The district court found that the BIA’s removal order

remained valid despite the recent state court order vacating Padilla’s convictions. Accordingly, the court denied

Padilla’s habeas petition and motion to stay his removal.
6 No. 05-2697

3 With inapplicable exceptions, the REAL ID Act stripped the

district courts of jurisdiction to review removal orders, specifically including their jurisdiction to review habeas challenges to

removal orders under 28 U.S.C. § 2241. 8 U.S.C. § 1252(a)(5).

After listening to further argument at a hearing the next

day, the court denied Padilla’s motion to reconsider.

The same day the district court denied Padilla’s motion

to reconsider—May 11, 2005—President Bush signed

into law the REAL ID Act of 2005, Pub. L. 109-13, 119

Stat. 231.3

 Padilla filed his notice of appeal on June 9. At

some point on or after May 10, the Department of Homeland Security removed Padilla to Mexico.

II. Discussion

A. Construing the appeal

The jurisdictional adjustments contained in the REAL ID

Act apply retroactively to Padilla’s case; they apply “to

cases in which the final administrative order of removal,

deportation, or exclusion was issued before, on, or after the

date of enactment of this division.” Pub. L. No. 109-13, 119

Stat. 231, 311 Div. B, Title I, § 106(b). The REAL ID Act

further instructs district courts that any pending habeas

petitions (28 U.S.C. § 2241) challenging final orders of

removal must be transferred to the courts of appeals

and treated as petitions for review. Id. at § 106(c).

Congress did not specify how to treat habeas petitions

that were already pending on appeal when the REAL ID

Act was enacted on May 11, 2005. However, we have joined

several other circuits in concluding these habeas claims

should also be treated as petitions for review because

Congress clearly intended the courts of appeals to be the

one judicial forum for hearing challenges to administra-
No. 05-2697 7

tive removal orders. Gonzales-Gomez v. Achim, 441 F.3d

532, 533 (7th Cir. 2006); Rosales v. Bureau of Immigration

& Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2006);

Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir.

2005); Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.

2005). So whether Padilla’s habeas petition was currently pending before the district court or was already on

appeal to this court when the REAL ID Act went into

effect, we construe this appeal as a petition for review of

the BIA’s removal order. The REAL ID Act retroactively

deprived the district court of jurisdiction to decide Padilla’s

claims and nullifies its ruling on the habeas petition. See

Bonhometre, 414 F.3d at 446.

B. Jurisdiction over the petition for review

When a petition for review challenges a final order of

removal, we have jurisdiction only when “the alien has

exhausted all administrative remedies available to the

alien as of right.” 8 U.S.C. § 1252(d)(1). The government

contends Padilla did not exhaust his administrative

remedies with respect to the issues raised on this appeal

because he never asked the BIA to reopen his case to

consider his vacated convictions. Padilla responds that

reopening is not available “as of right” because reopening

lies within the BIA’s discretion, so § 1252(d)(1) does not

apply.

The statute does not define the phrase “as of right,” but

the touchstone is whether the BIA has the authority

and the ability to grant meaningful relief. See Bonhometre,

414 F.3d at 447 (“[A] claim is ‘available as of right’ if, at

the very least, (1) the alien’s claim was within the jurisdiction of the BIA to consider and implicated agency

expertise, and (2) the agency was capable of granting the

remedy sought by the alien.”) (footnotes omitted); Sewak v.

INS, 900 F.2d 667, 670 (3d Cir. 1990) (exhaustion of
8 No. 05-2697

administrative remedies is not required on a due process claim because the BIA lacks jurisdiction to adjudicate constitutional issues). The principle underlying

this policy is that courts should not address an immigration issue until the appropriate administrative authority

has had the opportunity to apply its specialized knowledge

and experience to the matter. See generally Gonzales v.

Thomas, 126 S. Ct. 1613, 1615 (2006) (“ ‘The agency

can bring its expertise to bear upon the matter; it can

evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion

and analysis, help a court later determine whether its

decision exceeds the leeway that the law provides.’ ”)

(quoting INS v. Ventura, 537 U.S. 12, 17 (2002) (per

curiam)). Here, the BIA had the authority to reopen

Padilla’s case sua sponte “at any time,” and had the ability

to grant relief if it concluded his newly vacated convictions

rendered the removal order invalid. See 8 C.F.R.

§ 1003.2(a). Section 1252(d)(1) applies, so Padilla was

required to give the BIA an opportunity to address his

arguments before presenting them to this court.

Padilla is unable to cite a single case in which a court of

appeals asserted jurisdiction over issues that were never

presented to the BIA. He relies most heavily on Panjwani

v. Gonzales, 401 F.3d 626 (5th Cir. 2005), for its statement

that filing a motion to reopen cannot be characterized as

a remedy available “as of right” because the BIA has broad

discretion whether to grant or deny such motions. Id. at

631 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th

Cir. 2001)). But in Panjwani the alien actually filed a

motion—albeit an untimely one—asking the BIA to reopen

his case. The Fifth Circuit held only that it had “jurisdiction over the BIA’s denial of an untimely motion to reopen

deportation proceedings in instances where the petitioner

files such a motion.” Panjwani, 401 F.3d at 632 (emphasis

added). Unlike the petitioning alien in Panjwani, Padilla
No. 05-2697 9

never gave the BIA any opportunity to consider his

arguments about the effect of his vacated convictions.

Goonsuwan, cited in Panjwani, does not help Padilla

either. After the BIA ordered Goonsuwan removed from

the United States because of his criminal activities, he

petitioned for a writ of habeas corpus in the district court.

Goonsuwan, 252 F.3d at 384-85. The district court issued

the writ, but the Fifth Circuit reversed because the district court lacked jurisdiction to consider Goonsuwan’s

arguments when he had not first presented them to the

BIA. Id. at 386 (“[W]hile generally a motion to reopen is

not required to exhaust administrative remedies[,] . . .

Goonsuwan’s failure to raise his ineffective assistance

of counsel claim before the BIA deprived the district

court of jurisdiction to consider the issue.”).

By saying motions to reopen are not generally required, the Fifth Circuit meant only that in the typical

case an alien will first present his arguments to the BIA,

and if the BIA orders his removal after considering those

arguments, the alien need not ask the BIA to reconsider

its decision before he may petition a court for review.

Goonsuwan, 252 F.3d at 388 (“The appropriate inquiry

is not whether [the alien] filed a motion to reopen, but

rather whether he presented to the BIA the issue . . .

raised in his habeas petition, thus exhausting his administrative remedies as to that issue.”) (emphasis in original).

The material point here is that the BIA’s original

removal order was reviewed and affirmed by this court

and Padilla never presented the new issue of his vacated

convictions to the BIA. Because the BIA has never been

asked to determine the effect of the state court’s order on

Padilla’s order of removal, there is no agency decision on

this issue for us to review. Because the BIA could have

reopened his case at any time and amended or rescinded

its removal order, Padilla did not exhaust his administra-
10 No. 05-2697

4 The only other case Padilla cites on the exhaustion issue,

Sewak v. INS, 900 F.2d 667 (3d Cir. 1990), is inapplicable

because it dealt with an alien who, unlike Padilla, raised his

arguments with the BIA before petitioning the court for review.

Id. at 670 (“Sewak raised before the BIA, and the BIA considered,

the same issues he raises in his petition for review in this

court.”).

USCA-02-C-0072—12-7-06

tive remedies, and we lack jurisdiction to consider his

arguments. Goonsuwan, 252 F.3d at 388. See also

Panjwani, 401 F.3d at 632; Wang v. Ashcroft, 260 F.3d 448,

452-53 (5th Cir. 2001) (alien failed to exhaust administrative remedies where, even though he filed an untimely motion to reopen, he did not specifically ask the BIA

to exercise its authority to reopen his case sua sponte);

Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999) (same).4

In light of the provisions of the REAL ID Act, we consider the district court’s habeas ruling a nullity and

construe Padilla’s habeas appeal as a petition for review.

We lack jurisdiction to consider Padilla’s argument about

the effect of the state court’s vacatur order because he

never presented it to the BIA. Accordingly, the petition

for review is DISMISSED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit