7th Circuit Says No Jurisdiction Of Appeal By Alien Who Failed To Ask BIA To Re-Open Case

Luis Padilla was a lawful permanent resident. He pleaded guilty to charges of criminal sexual abuse and obstruction of justice in Illinois. He left the U.S., and when he attempted to return in May 2000 the federal government began removal proceedings because of his criminal record. Those proceedings concluded in February 2004 when the Bureau of Immigration Appeals ordered Padilla’s removal to Mexico.

After an unsuccessful appeal of that order, Padilla was ordered to report for removal in May 2005. But just before that time, Padilla got the Illinois criminal convictions vacated. He then petitioned the federal district court for a writ of habeas corpus and asked that he be declared admissible to the United States. Padilla did not ask the BIA to reconsider its order of removal.

The district court denied Padilla’s habeas petition, and he was removed to Mexico. He appealed the denial of the petition. Meanwhile, Congress passed the REAL ID Act, which stripped federal district courts of jurisdiction to review final orders of removal by the BIA. The Seventh Circuit thus declared the district court proceedings a nullity, and took Padilla’s appeal as a petition for review of the BIA’s removal order.

The statute requires a party to exhaust all legal remedies as a condition to a petition for review of the BIA’s order. The 90-day limit to re-open a case in the BIA passed in May 2004 (90 days after the February 2004 BIA removal order). Even though Padilla’s criminal convictions were not vacated until a year later in May 2005, the Seventh Circuit dismissed Padilla’s petition because he did not seek to re-open his case in front of the BIA.

The appellate court pointed to the statue that allows the BIA to re-open a case sua sponte at any time. The court ruled that Padilla had not exhausted his administrative remedies, depriving the court of jurisdiction to review the order.

The entire case, Padilla v. Gonzales, No. 05-2697 (12/7/06), in available by clicking here.