United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-2745

___________________________

United States of America,

lllllllllllllllllllllPlaintiff - Appellant,

v.

Arturo Leal-Monroy,

lllllllllllllllllllllDefendant - Appellee.

 ____________

Appeal from United States District Court 

for the District of Minnesota

 ____________

 Submitted: October 23, 2020

Filed: February 26, 2021

____________

Before COLLOTON, GRASZ, and STRAS, Circuit Judges. 

____________

COLLOTON, Circuit Judge.

The government appeals an order of the district court dismissing an indictment

that charged Arturo Leal-Monroy with illegal reentry to the United States under 8

U.S.C. § 1326(a), (b)(2). We conclude that the district court erred in ruling that LealMonroy made a sufficient showing to attack the deportation order that underlies the
charge in this criminal case. We therefore reverse and remand for further

proceedings.

A grand jury in Minnesota charged Leal-Monroy in March 2018 with unlawful

reentry into the United States after a previous removal from the country in 1998. See

8 U.S.C. § 1326(a), (b)(2). In 1997, Leal-Monroy was convicted of aggravated

criminal sexual abuse in Illinois under 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1996). 

Relying on this adjudication, an immigration court in Chicago found him removable

in 1998 based on a conviction for an aggravated felony. Leal-Monroy moved to

dismiss the unlawful reentry charge in 2018 on the ground that the entry of the

previous order of removal in 1998 was fundamentally unfair. See 8 U.S.C. § 1326(d).

To defeat a charge of unlawful reentry by attacking the prior deportation order,

a defendant must establish that the entry of the order was “fundamentally unfair.” Id.

§ 1326(d)(3). This standard requires a showing that there was a fundamental

procedural error in the removal proceeding that resulted in actual prejudice. United

States v. Espinal, 956 F.3d 570, 574 (8th Cir. 2020). Actual prejudice means that but

for the procedural error, there was a reasonable likelihood that the alien would not

have been deported. Id. at 575.

The district court concluded that Leal-Monroy satisfied this standard. The

court found fundamental procedural error because the immigration judge in 1998

allowed the attorney for the government to dictate the amount of Leal-Monroy’s bail,

and the judge and the government attorney allegedly provided misinformation about

whether Leal-Monroy’s prior conviction in Illinois was an aggravated felony. The

court posited that if Leal-Monroy had been released on bail, then he “may have been

able to secure counsel,” and counsel could have presented a “potentially successful

argument” that his prior conviction did not qualify as an aggravated felony. On this

view, Leal-Monroy suffered actual prejudice, because without a conviction for an

-2-
aggravated felony, he would not have been removed. For these reasons, the court

dismissed the indictment charging unlawful reentry after a prior removal.

The government appeals, and argues that Leal-Monroy failed to establish actual

prejudice. Leal-Monroy defends the district court’s rationale and asserts that if the

removal proceeding had been conducted differently, then there was a reasonable

likelihood that he could have defeated the government’s contention that he was

convicted of an aggravated felony. The term “aggravated felony” includes “sexual

abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Leal-Monroy maintains that as of

1998, it was not established that his conviction in Illinois for aggravated sexual abuse

constituted “sexual abuse of a minor” within the meaning of the immigration laws.

We reject this argument because there is no reasonable likelihood that any

argument from counsel in 1998 would have succeeded in defeating the charge of

removability. In Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2005) (per

curiam), the Seventh Circuit held that a conviction under 720 Ill. Comp. Stat. 5/12-

16(b) (1996), which criminalized “an act of sexual conduct on a family member

younger than 18,” was a conviction for “sexual abuse of a minor.” Id. at 465. The

victim there was under 13 years of age, so the statute forbade as “sexual conduct” the

touching of any part of the victim’s body for the purpose of sexual gratification or

arousal. Id. (citing 720 Ill. Comp. Stat. 5/12-12(e) (1996)). The court reasoned that

the alien’s conduct fit “squarely within the ordinary meaning of sexual abuse of a

minor.” Id.

Leal-Monroy was convicted under another subsection of the same Illinois

statute, 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1996), which prohibited “an act of

sexual conduct with a victim who was under 13 years of age.” Like the alien in

Espinoza-Franco, Leal-Monroy was convicted for touching any part of a child’s body

for the purpose of sexual gratification or arousal. See 720 Ill. Comp. Stat. 5/12-12(e)

(1996). It follows from Espinoza-Franco that Leal-Monroy, too, committed “sexual

-3-
abuse of a minor” under the immigration laws. Although the issue had not been

litigated in the federal court of appeals as of 1998, the speculative possibility that an

immigration court within the Seventh Circuit would have decided it incorrectly is

insufficient to demonstrate actual prejudice. And even if there were a reasonable

likelihood of a mistaken ruling by the immigration court, that potential would not

make the proceeding fundamentally unfair. Leal-Monroy had no right to receive “a

windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364,

370 (1993).

Leal-Monroy argues alternatively that he could have sought relief from removal

if the immigration proceeding had been conducted differently. He cites the potential

for a waiver of inadmissibility and for withholding of removal. We see no reasonable

likelihood that such relief would have been granted or that Leal-Monroy would have

avoided removal.

The Attorney General may, in his discretion, waive provisions making an alien

inadmissible to the United States if the Attorney General is satisfied that the alien’s

denial of admission would result in extreme hardship to a lawfully present spouse,

parent, or child of the alien. 8 U.S.C. § 1182(h)(1)(B). Leal-Monroy’s theory seems

to be that his conviction for a crime involving moral turpitude (sexual abuse of a

minor) rendered him inadmissible, and a waiver of that inadmissibility would allow

him to adjust his status to lawful permanent resident and avoid removal. This

argument has several shortcomings.

First, a waiver of inadmissibility is not available to an alien who is facing

removal; the statute “limits waivers to aliens who seek a visa, admission, or an

adjustment of status.” Palma-Martinez v. Lynch, 785 F.3d 1147, 1149 (7th Cir.

2015). Leal-Monroy was removable because he had sustained a conviction for an

aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). He was not an alien applying

for readmission to the country or seeking adjustment of status, so he would not have

-4-
benefited from a waiver of inadmissibility. See Kilic v. Barr, 965 F.3d 469, 472 (6th

Cir. 2020).

Second, if we nonetheless assume that Leal-Monroy could have applied for

adjustment of status, cf. Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994), and that

a waiver could have helped him to avoid removal, there is no reasonable likelihood

that he would have been eligible to obtain one. Leal-Monroy says that the waiver was

warranted because his family was likely to suffer “extreme hardship” as a result of his

removal. See 8 U.S.C. § 1182(h)(1)(B). This relief is unavailable, however, to an

alien like Leal-Monroy who had been convicted of an aggravated felony. Id.

§ 1182(h); see Guerrero-Perez v. INS, 242 F.3d 727, 737 (7th Cir. 2001).

Leal-Monroy argues that an aggravated felony makes an alien ineligible for the

waiver only if the alien “has previously been admitted to the United States as an alien

lawfully admitted for permanent residence,” 8 U.S.C. § 1182(h), and that he was not

so admitted. See Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013). 

Rather, he asserts, he adjusted his status to lawful permanent resident after he entered

the United States, so he could still qualify for a waiver of inadmissibility despite the

aggravated felony. The record reflects, however, that Leal-Monroy entered the

country on an immigrant visa, R. Doc. 45-1, which provides for lawful permanent

residence in the United States. See United States v. Idowu, 105 F.3d 728, 731 (D.C.

Cir. 1997). There is no evidence that his immigration status ever changed; the district

court found only that he was a permanent legal resident in March 1998, not that he

changed his status after entering on the visa. R. Doc. 81, at 2-3; R. Doc. 69, at 2; R.

Doc. 67, at 3:22-25. Leal-Monroy was therefore ineligible for a waiver of

inadmissibility, because he was lawfully admitted for permanent residence and then

convicted of an aggravated felony. See 8 U.S.C. § 1182(h).

Third, even if Leal-Monroy had been eligible for a waiver of inadmissibility,

there is no reasonable likelihood that he would have received one as a matter of the

-5-
Attorney General’s discretion. The statute required a showing that his family would

suffer “hardship substantially different from and more severe than that suffered by the

ordinary alien who is deported.” Palmer v. INS, 4 F.3d 482, 487-88 (7th Cir. 1993)

(quoting Sanchez v. INS, 755 F.2d 1158, 1161 (5th Cir. 1985)). Economic detriment

and emotional hardship caused by severing ties are common results of deportation

and thus generally insufficient to establish extreme hardship. Id. at 488. In the

immigration court, Leal-Monroy cited only the fact that he provided some financial

support to his three children and that his mother was sick. He did not augment the

record in this criminal case with further evidence of hardship, so the record shows

only “ordinary” adversity. The case for a favorable exercise of discretion was further

weakened by Leal-Monroy’s recent conviction for sexual abuse of a minor. See id.

at 489-90. Accordingly, there was no actual prejudice based on the possibility of a

waiver under § 1182(h).

On withholding of removal, Leal-Monroy argues that it was more likely than

not that he would have been persecuted in Mexico based on his membership in a

particular social group. See 8 U.S.C. § 1231(b)(3)(A). Even assuming that he was

not ineligible for this relief as an alien convicted of a “particularly serious crime,” see

id. § 1231(b)(3)(B)(ii); Estrada-Martinez v. Lynch, 809 F.3d 886, 889, 892-93 (7th

Cir. 2015), there is no reasonable likelihood that he could have met the requirements

for relief. Leal-Monroy presented no evidence that he belongs to a cognizable social

group or that he would have been persecuted in Mexico as a result. There is thus no

reasonable likelihood that an immigration court in 1998 would have granted

withholding of removal.

Leal-Monroy argues finally that the Immigration and Naturalization Service in

1998 might have exercised its discretion to dismiss the removal proceeding if LealMonroy had retained counsel and confronted the government with a vigorous defense. 

This speculative possibility is insufficient to establish actual prejudice when there is

no reasonable likelihood that the alien had a meritorious defense to removal.

-6-
For these reasons, Leal-Monroy may not challenge in this criminal case the

validity of the immigration court’s underlying deportation order from 1998. See 8

U.S.C. § 1326(d). The order dismissing the indictment is therefore reversed, and the

case is remanded for further proceedings.

______________________________

-7-