Victoria-Faustino v. Sessions, No. 16-1784 (7th Cir. 2017)Annotate this Case
Victoria‐Faustino, a Mexican national who entered the U.S. illegally in 1991, is the father of five U.S. citizens. He returned to Mexico to visit his family in 1999 but re‐entered illegally in January 2000. During a 2000 traffic stop, Victoria‐Faustino provided the police with a false identity; he then served a term of two years’ imprisonment for obstruction of justice.In 2015, he was arrested for driving while under the influence of alcohol. DHS instituted removal based upon his 2000 conviction, which DHS determined constituted an aggravated felony such that he was subject to expedited removal procedures. Victoria‐Faustino indicated that he wished to contest or to request withholding of removal, based on his fear of persecution and torture upon removal to Mexico. He never challenged DHS’s determination that he was removable based upon his 2000 Illinois conviction. An Asylum Officer determined that while Victoria‐Faustino was credible, he had not established that he was entitled to asylum. The Seventh Circuit remanded. While the statute generally strips courts of jurisdiction to consider an appeal of a Final Administrative Removal Order, they retain jurisdiction to determine whether the underlying conviction upon which it is based is an aggravated felony. Victoria‐Faustino’s 2000 conviction was not properly classified as an aggravated felony.
The court issued a subsequent related opinion or order on October 10, 2017.