United States v. Gil-Lopez, No. 15-2650 (7th Cir. 2016)
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Gil‐Lopez, a citizen of Mexico, entered the U.S. in 1987. He became a lawful permanent resident in 2000. In 2002, he pleaded guilty to violating Idaho Code 18‐1501(1), “Injury to Children,” after originally having been charged with two counts of forcible rape. He was removed. Gil‐Lopez did not appeal the removal order, file a motion to reopen the immigration proceedings, or file a habeas petition. Several years later, he returned to the U.S., was arrested, and was charged with being illegally present in the United States after having been convicted of a felony, U.S.C. 1326(a). The district court held that his 2004 removal could form the basis for a charge of unlawful reentry and that his prior conviction was for an aggravated felony. The Seventh Circuit affirmed. Gil‐Lopez cannot challenge the district court’s decision because he did not exhaust his administrative remedies with respect to the immigration court’s 2004 removal order.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2650 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LUIS GIL LOPEZ, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:12 cr 203 — Rebecca R. Pallmeyer, Judge. ____________________ ARGUED MARCH 31, 2016 — DECIDED JUNE 16, 2016 ____________________ Before MANION and KANNE, Circuit Judges, and PEPPER,* District Judge. PEPPER, District Judge. Defendant Appellant Luis Gil Lopez (“Gil Lopez”) is a native and citizen of Mexico. He en tered the United States in the late 1980s; in 2002, he was con victed of a felony offense in Idaho state court. As a result, in * Hon. Pamela Pepper, Eastern District of Wisconsin, sitting by desig nation. 2 No. 15 2650 2004 he was removed pursuant to an order entered by the im migration court. Several years later, however, he returned to this country, was arrested, and was charged in federal court with being illegally present in the United States after having been convicted of a felony. In the district court, Gil Lopez entered a conditional guilty plea to the one count indictment. Gil Lopez’s conditional guilty plea allowed him to pursue this appeal from the district court’s order denying his motion to dismiss that indictment. Gil Lopez argues that the district court erred in determining that his 2004 removal could form the basis for the current charge of unlawful reentry and that his prior conviction was for an aggravated felony, rendering him removable to Mex ico. The government responds that Gil Lopez cannot chal lenge the district court’s decision, because he did not exhaust his administrative remedies with respect to the immigration court’s 2004 removal order. We agree, and affirm. I. BACKGROUND Gil Lopez originally entered the United States in 1987. He became a lawful permanent resident in 2000. In 2002, in the Sixth Judicial District of Bannock County, Idaho, Gil Lopez pleaded guilty to an amended information charging him with one count of violating Idaho Code §18 1501(1), “Injury to Children,” after originally having been charged with two counts of forcible rape. Idaho Code §18 1501(1) provides: INJURY TO CHILDREN. (1) Any person who, under circumstances or conditions likely to pro duce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental No. 15 2650 3 suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one (1) year, or in the state prison for not less than one (1) year nor more than ten (10) years. For that conviction, the Idaho court sentenced Gil Lopez to a determinate term of three years’ imprisonment, followed by an indeterminate term of seven years’ imprisonment. The court subsequently reduced that sentence to a fixed term of eighteen months’ imprisonment, followed by an indetermi nate term of eight and one half years’ imprisonment. In July 2004, the federal government initiated removal proceedings against Gil Lopez in immigration court. The gov ernment alleged that Gil Lopez was subject to removal be cause he had been convicted of an aggravated felony—a crime of violence—for which the term of imprisonment was at least one year. The government served Gil Lopez with a “Notice To Appear,” which informed him of the removal proceedings and the basis for the government’s charge that he was subject to removal. That document contains a signature line for the respondent, and apparently it was executed by Gil Lopez. (R. 91 3 at 2.) In August 2004, the immigration court conducted a hear ing in the removal proceedings. The attorney representing Gil Lopez in immigration court filed a letter arguing that, in the case of In re Troy Don Tinney A28 499 154, (Sept. 19, 1996), 4 No. 15 2650 the Board of Immigration Appeals had determined that a con viction under Idaho’s “injury to a child” statute was not an aggravated felony. The immigration court distinguished Tin ney from Gil Lopez’s case, because Tinney involved criminal conduct by which an alien permitted a child to be injured, while the amended information alleged that Gil Lopez “will fully inflicted unjustifiable physical pain or mental suffering” on the victim. On August 17, 2004, the immigration court or dered Gil Lopez to be removed to Mexico, terminating his sta tus as a lawful permanent resident. Gil Lopez initially reserved his right to appeal the removal order. The government then served Gil Lopez with a “Warn ing to Alien Ordered Removed or Deported,” which advised Gil Lopez that he was prohibited from entering or attempting to enter the United States because he had been convicted of an aggravated felony and ordered to be deported. (R. 88 5.) That document contains signature lines for the alien/detainee and the officer serving the warning. On the line denoted for the officer’s signature, the document contains a signature sub stantially similar to the Gil Lopez signature on the Notice to Appear. On the line to be signed by the alien/detainee, the document contains a different signature. In a “Withdrawal of Reserve of Appeal” letter dated Au gust 19, 2004, however, Gil Lopez withdrew his right to ap peal the removal order. The withdrawal provides: I GIL Lopez, Luis Miguel, A74 578 378, do hereby withdraw my right to reserve appeal of the IJ decision dated August 17, 2004. I make this withdrawal voluntarily and without reser vations. Additionally, I have consulted with my No. 15 2650 5 legal counsel and we have made this decision jointly. (R. 91 8 at 2.) Like the Notice to Appear and the Warning to Alien, the withdrawal form contains a signature line for the respondent. A signature that appears to belong to Gil Lopez appears on that line. The statement also was signed by two witnesses. On August 19, 2004, Gil Lopez’s prior counsel transmitted the withdrawal to the INS. Counsel’s cover letter confirmed that Gil Lopez “[was] waiving his right to an ap peal,” and further stated he “request[ed] that he be deported as soon as possible.” (Id. at 1.) Gil Lopez did not appeal the removal order, file a motion to reopen the immigration pro ceedings, or file a habeas petition. He was removed to Mexico on or about August 24, 2004. Gil Lopez illegally reentered the United States sometime before March 1, 2012, when he was arrested by immigration authorities in Illinois. He was indicted in the Northern District of Illinois on a charge of being illegally present in the United States after having been removed, in violation of 8 U.S.C. §1326(a). After unsuccessfully petitioning for habeas relief, Gil Lopez moved to dismiss the indictment, arguing that the 2004 removal proceedings were fundamentally unfair and vi olated his due process rights. Gil Lopez argued that (1) his underlying conviction could not serve as the predicate for ex pedited removal because it was not an aggravated felony, (2) he was deprived of his constitutional right to meaningful re view of the immigration judge’s decision because he was re moved two weeks before his time to appeal the immigration judge’s decision expired, (3) his counsel provided ineffective 6 No. 15 2650 assistance by failing to challenge the immigration court’s de cision, and (4) his waiver of his appellate rights was not know ing and voluntary. Responding to Gil Lopez’s contentions, the government characterized Gil Lopez’s motion as an improper collateral at tack on his 2004 removal proceedings. The government ar gued that (1) the district court should deny Gil Lopez’s mo tion because he had waived his right to appeal and did not move to reopen the removal proceedings or file a habeas peti tion, (2) he did not establish that he was deprived of the op portunity for judicial review, (3) his 2004 removal was not fundamentally unfair because his conviction was for a crime of violence (notwithstanding the decision in Tinney) or be cause that conviction fell within the definition of “child abuse,” making him removable under 8 U.S.C. §1227(1)(2)(A)(iii), and (4) his claim of ineffective assistance was not supported by any evidence. In an oral ruling following a hearing on the motion, the district court concluded that the immigration judge did not err in finding that Gil Lopez’s conviction of injury to a child was an aggravated felony, and denied his motion to dismiss the indictment. Gil Lopez then pleaded guilty to the indict ment under a plea agreement that preserved his right to ap peal the issues that he raised in his motion to dismiss. This appeal followed. II. ANALYSIS We review de novo the district court’s denial of Gil Lopez’s motion to dismiss the indictment under 8 U.S.C. §1326(a). United States v. Baptist, 759 F.3d 690, 694 (7th Cir. 2014). We No. 15 2650 7 may affirm the district court’s judgment “on any basis identi fied in the record that was argued below.” United States v. Bo khari, 757 F.3d 664, 673 (7th Cir. 2014) (quoting Dye v. United States, 360 F.3d 744, 750 (7th Cir. 2004)). “Since a prior removal is necessary for a conviction under §1326, an alien may collaterally attack the underlying removal pursuant to the due process clause.” Baptist, 759 F.3d at 694. In order to bring a collateral attack on the immigration court’s prior removal order, Gil Lopez must satisfy the elements of 8 U.S.C. §1326(d) by showing that: (1) he exhausted his admin istrative remedies; (2) the prior deportation proceedings im properly deprived him of an opportunity for judicial review; and (3) the entry of the removal order “was fundamentally unfair.” Id. at 695 (“While we have yet to expressly state that all three requirements must be met before an alien can suc cessfully collaterally attack a prior removal, we have implied as much.”). The district court’s decision rested on its determination that Gil Lopez’s conviction under Idaho Code §18 1501(1) was an aggravated felony. The district court found that the statute is divisible, so the court could look to the underlying charging instrument to decide whether Gil Lopez’s crime constituted a crime of violence. In his initial brief before this court, Gil Lopez focused primarily on the divisibility issue, though he conceded that if he “validly waived the right to ap peal the deportation order” in his August 2004 Withdrawal of Reserve of Appeal letter, “then he is barred from challenging it here.” (Appellant’s Br. at 9.) The government had argued below, as it does in this appeal, that Gil Lopez’s waiver of ap pellate rights barred his challenge to the immigration court’s 8 No. 15 2650 prior removal order, because he did not exhaust his adminis trative remedies following his conviction. In reply, Gil Lopez argued that he did not knowingly sign a waiver of his appel late rights, but he did not cite any evidence showing that he did not sign the withdrawal. At oral argument, we asked Gil Lopez’s counsel to iden tify the evidence supporting his contention that Gil Lopez did not knowingly and voluntarily withdraw his appellate rights. Counsel answered with an argument he had raised below: that Gil Lopez’s former counsel—not Gil Lopez himself— had signed the withdrawal. He argued that the signature on the withdrawal did not appear to be the same as the signature on the August 19, 2004 Warning to Alien Ordered Removed or Deported. There is no evidence in the record—presented by affidavit, testimony, or other means—supporting Gil Lopez’s bare as sertion that he did not sign the withdrawal, and his counsel’s unsupported arguments are not evidence. United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008). Because Gil Lopez pro vided us with no evidence supporting his claim that he did not sign the withdrawal, we have no basis for concluding that Gil Lopez did not sign the withdrawal knowingly and volun tarily. The evidence before us compels the conclusion that Gil Lopez waived his right to appeal and, as he conceded, he can not challenge that order in this appeal because he did not ex haust his administrative remedies. Our resolution of the waiver issue in favor of the government is dispositive of Gil Lopez’s appeal, so we need not reach the substantive question of whether Gil Lopez’s prior conviction was an aggravated felony. No. 15 2650 9 III. CONCLUSION Gil Lopez waived his rights to appeal the immigration court’s 2004 removal order. Consequently, he cannot establish that he exhausted his administrative remedies as required by §1326(d), and the district court properly denied his motion to dismiss the indictment. AFFIRMED.
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