America Fonseca -Sanchez v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2387
A MERICA F ONSECA -S ANCHEZ ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A91-297-177
____________
A RGUED F EBRUARY 8, 2007—D ECIDED A PRIL 13, 2007
____________
Before R IPPLE , M ANION , and W ILLIAMS , Circuit Judges.
M ANION , Circuit Judge. The Immigration and Customs
Enforcement (“ICE”) branch of the Department of Home-
land Security (“DHS”) issued a Final Administrative
Removal Order (“FARO”) to America Fonseca-Sanchez,
directing her removal from the United States. Fonseca-
Sanchez then petitioned the Citizenship and Immigration
Service (“CIS”) for interim relief under the “U” visa statute
to avoid removal. Because DHS had not (and still has
not) issued final “U” visa regulations to determine eligibil-
ity, CIS relied upon criteria contained in what it calls
“guidance memoranda” issued by DHS. Based on those

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2 No. 06-2387
1 Fonseca-Sanchez submitted as evidence in support of her
petition for interim “U” visa relief three police reports for
domestic batteries committed against her by Martinez, which
occurred on March 4, 2000, April 27, 2002, and March 24, 2003.
She also included in her “U” visa petition a letter of support
(continued...)
documents, CIS denied Fonseca-Sanchez’s petition on
grounds that she had been engaged in criminal activity and
she already had been issued a final order of removal.
Fonseca-Sanchez now petitions this court to review CIS’
decision to deny her interim “U” visa relief. Because
Fonseca-Sanchez failed to exhaust her administrative
remedies by not claiming a right to interim “U” visa relief
prior to ICE’s issuance of the FARO, and because this
court’s jurisdiction under 8 U.S.C. § 1252 is limited to direct
review of final orders of removal and matters decided by
ICE in the course of removal proceedings, we dismiss
Fonseca-Sanchez’s petition for lack of jurisdiction.
I.
America Fonseca-Sanchez, a Mexican national, illegally
entered the United States in 1978 at the age of eight, and
illegally resided here until her removal in July 2006. Dur-
ing her residence in the United States, Fonseca-Sanchez
gave birth to four children. Jose Martinez, Fonseca-
Sanchez’s former common-law husband, is the father of
two of her children. On at least one occasion in 2003,
Martinez was charged with domestic battery of Fonseca-
Sanchez, and she provided local police with helpful testi-
mony regarding the underlying facts that were essential
to their investigation of Martinez. 1

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No. 06-2387 3
1 (...continued)
from an officer of the DuPage County Sheriff Department. That
letter, however, only references the March 22, 2003, incident,
and it states that Fonseca-Sanchez provided testimony regard-
ing “the underlying facts [that were] essential to the investiga-
tion” of that incident. The officer’s letter does not mention
whether Martinez was convicted of the domestic violence
charge.
Unfortunately for Fonseca-Sanchez, she had her own
problems with the law. On December 16, 2002, she pleaded
guilty to shoplifting from a Target store merchandise
worth more than $150. She was fined and sentenced to 24
months of probation. On December 13, 2004, Fonseca-
Sanchez was convicted of retail theft for shoplifting
merchandise worth more than $150 from a J.C. Penney
store and with contributing to the delinquency of a minor.
She was sentenced to 92 days in jail and 24 months of
probation. On August 25, 2005, Fonseca-Sanchez vio-
lated her probation by missing appointments with her
probation officer, and she was resentenced for both of-
fenses to three years’ imprisonment in the Illinois Depart-
ment of Corrections. On April 26, 2006, Fonseca-Sanchez
was released from the Illinois Department of Corrections
and directly transferred into ICE’s custody and detained
at the McHenry County Jail in Woodstock, Illinois.
In the meantime, on April 3, 2006, pursuant to 8 U.S.C.
§ 1228(b), which provides for expedited removal of aliens
convicted of aggravated felonies, ICE served Fonseca-
Sanchez with a Notice of Intent to Issue a Final Administra-
tive Removal Order (“Notice of Intent”). Aliens subject to
removal under this expedited procedure do not appear
before an Immigration Judge. See 8 C.F.R. § 238.1 (setting

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4 No. 06-2387
2 ICE is compelled to issue a FARO if the alien does not re-
spond to the Notice of Intent. 8 C.F.R. § 238.1(d)(1).
3 Section 1101(a)(43)(G) states that an alien is subject to removal
if convicted of “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprison-
ment is at least one year.” 8 U.S.C. § 1101(a)(43)(G).
4 With the enactment of the Victims of Trafficking and Violence
Protection Act of 2000 (“VTVPA”), Congress created the “U”
(continued...)
forth procedures). Instead, an ICE officer issues a Notice
of Intent, to which the alien has ten calendar days to file a
response and rebut the charges. 8 C.F.R. § 238.1(b)(2), (c)(1).
If the alien does not rebut the charges within ten calendar
days, an ICE Supervisory Deportation Officer issues a Final
Administrative Removal Order (“FARO”) and can remove
the alien fourteen days after issuance of that order. 8 C.F.R.
§ 238.1(d).
It is undisputed that Fonseca-Sanchez did not rebut the
charges in the Notice of Intent or make any other response
within the ten-calendar-day period following the order. 2
Accordingly, on May 2, 2006, ICE issued to Fonseca-
Sanchez a FARO pursuant to 8 U.S.C. § 1101(a)(43)(G), 3
finding that she was not a lawful permanent resident and
had been convicted of an aggravated felony. ICE then
ordered Fonseca-Sanchez removed to Mexico. Fonseca-
Sanchez does not challenge that she was removable based
on her criminal convictions.
On May 11, 2006, nine days after ICE issued the FARO to
Fonseca-Sanchez, she submitted to CIS a petition for
interim relief under the “U” visa statute and requested that
ICE stay her removal. 4 In a letter dated May 18, 2006, CIS

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No. 06-2387 5
4 (...continued)
nonimmigrant classification (“U” visa) for victims of certain
qualifying criminal activity, including victims of domestic
violence, sexual assault, trafficking of aliens, and other crimes.
VTVPA, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464,
1533-34 (2000) (codified at 8 U.S.C. § 1101(a)(15)(U)). The “U”
visa was intended to provide temporary legal status to such
victims who cooperate with officials during investigations
and prosecutions. Id. Congress empowered the Attorney General
(now the Secretary of Homeland Security) with discretion to
convert the status of such immigrants to permanent residents
“when doing so is justified on humanitarian grounds, for
family unity, or is otherwise in the public interest,” but it did
not provide a deadline for affected agencies to promulgate
regulations with respect to “U” visas. VTVPA, Pub. L. No. 106-
386, § 1513(a)(2)(C), 114 Stat. 1464, 1534. In 2005, with no “U”
visa regulations yet promulgated, Congress passed the Violence
Against Women Act of 2005 (“VAWA 2005”), which the Presi-
dent signed on January 5, 2006. VAWA 2005, Pub. L. No. 109-
162, 119 Stat. 2960 (2006). That act stipulated that the Attorney
General, Secretary of Homeland Security, and the Secretary of
State shall promulgate regulations to implement the “U” visa
sections of the VTVPA “not later than 180 days after the date of
enactment.” VAWA 2005, Pub. L. No. 109-162, § 828, 119 Stat.
2960, 3066 (codified at 8 U.S.C. § 1101). The deadline for the
enactment of those regulations passed on July 4, 2006. To date,
the final regulations have not been published.
5 In the absence of final regulations, the Department of Home-
land Security continues to work from interim guidance memo-
(continued...)
responded to Fonseca-Sanchez’s petition, stating that it
was “not able to grant [her] interim relief” because she had
“engaged in criminal activity” and she was “currently in
immigration proceedings or ha[d] a final order of re-
moval.” 5 The letter also stated, “[y]ou may submit docu-

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6 No. 06-2387
5 (...continued)
randa. The guidance memorandum issued by the INS on August
30, 2001, states that the principles that it set forth were “intended
solely to guide INS personnel in performing their duties,” and
that “[t]hey [were] not intended to, do not, and may not be
relied upon to create a right or benefit, substantive or proce-
dural, enforceable at law by any individual or other party in
removal proceedings, in litigation with the United States, or in
any other form or manner.” Mem. from Michael D. Cronin to
Michael A. Pearson re VTVPA Policy, at 6 (Aug. 30, 2001).
Specifically, the guidance memoranda require CIS personnel to
identify possible “U” visa eligible victims, and to use available
mechanisms, such as parole, deferred action, continuances, and
stays of removal, to ensure, at the agency’s discretion, that no
potential “U” visa eligible victims are removed from the
country. Id. at 2. Of particular relevance here, CIS’ October 8,
2003, guidance memorandum stated that its employees would
not have jurisdiction to grant relief to aliens who had been
convicted of an aggravated felony, or who were in removal
proceedings, or subject to a final order of removal. Mem. from
William R. Yates to Director, Vermont Service Center re Central-
ization of Interim Relief for U Nonimmigrant Status Applica-
tions, at 2 (Oct. 3, 2003). Currently, there is no official applica-
tion form to apply for a “U” visa; thus, aliens who believe they
qualify for interim relief may submit correspondence along
with evidentiary proof that address the four criteria listed in
8 U.S.C. § 1101(a)(15)(U)(i)(I-IV). Id. at 2-5. If the applicant does
not submit sufficient information to establish prima facie
eligibility, or is otherwise determined to be ineligible for interim
relief, the applicant receives a letter indicating the reason(s) that
the agency could not grant interim relief. Id. at 5. Beginning in
October 2005, all such requests are processed at CIS’ Vermont
Service Center. Id. at 2. DHS, acting through CIS’ Vermont
Service Center, has exclusive authority to adjudicate requests for
(continued...)

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No. 06-2387 7
5 (...continued)
“U” visa interim relief of deferred action, and neither ICE nor
Immigration Judges have authority to issue “U” visa interim
relief. See 8 U.S.C. § 1103(a)(3).
6 It is unclear why Fonseca-Sanchez filed her petition for re-
view prior to receiving the initial denial letter from CIS.
Fonseca-Sanchez’s May 16, 2006, petition for review filed in this
court states that she is challenging the FARO entered on May 2,
2006, but her briefs in support of her petition for review focus
exclusively on CIS’ May 18, 2006, denial of her interim “U” visa
petition. Because Fonseca-Sanchez’s substantive arguments only
address CIS’ denial of her interim “U” visa petition, and
Fonseca-Sanchez concludes that she was removable for the
reasons set forth in the Notice of Intent, we restrict our analysis
to whether this court has jurisdiction over Fonseca-Sanchez’s
interim “U” visa claims, rather than whether DHS properly
issued the FARO.
mentation to overcome these deficiencies.” Fonseca-
Sanchez then provided supplemental information to CIS,
to which CIS responded by issuing an identical denial
letter, only this time dated July 28, 2006. On May 16, 2006,
two days prior to receiving her initial denial letter from CIS
regarding her preliminary “U” visa application, Fonseca-
Sanchez filed in this court the present petition for review
of CIS’ denial of her “U” visa application pursuant to
8 U.S.C. §§ 1228(b)(3) and 1252. 6
II.
Fonseca-Sanchez’s petition for review is a direct appeal
of CIS’ decision to deny her petition for interim “U” visa
relief, which if granted would have effectively stayed the
FARO issued against her. Her “U” visa claims have been

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8 No. 06-2387
7 Section 1252(a)(5) states:
(5) Exclusive means of review
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, and sections 1361 [Manda-
mus Act] and 1651 [All Writs Act] of such title, a petition for
review filed with an appropriate court of appeals in accor-
dance with this section shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision [in the Immigration and Naturaliza-
tion Act] . . . .8 U.S.C.A. § 1252(a)(5) (emphasis added).
reviewed by neither an Immigration Judge nor by the
Board of Immigration Appeals. The threshold question
we must answer is whether this court may exercise juris-
diction over Fonseca-Sanchez’s petition. We review the
jurisdictional and legal issues raised in Fonseca-Sanchez’s
petition de novo. See Gattem v. Gonzales, 412 F.3d 758, 763
(7th Cir. 2005) (“Generally speaking, we review ques-
tions of law, including jurisdictional questions, de novo.”).
This court’s jurisdiction is limited to direct review of
“final order[s] of removal” and matters decided by ICE
in the course of removal proceedings. 8 U.S.C. §§ 1252(a)(1)
and 1252(a)(5). 7 To preserve her “U” visa claim for review
by this court, Fonseca-Sanchez was required to exhaust her
administrative remedies available as of right before the
issuance of the final order of removal. 8 U.S.C. § 1252(d)(1)
(stating that “a court may review a final order of removal
only if—(1) the alien has exhausted all administrative
remedies available to the alien as of right . . . .”). The
removal procedure at issue here—the expedited removal
regime under § 1228(b)—provides a ten-calendar-day
period following the issuance of the Notice of Intent during

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No. 06-2387 9
which the alien may request administrative review of
claims that might be raised. 8 C.F.R. § 238.1. If the alien
files a response to the Notice of Intent, that response is
made a part of the record of proceedings for judicial
review. 8 U.S.C. § 1228(b)(4)(C); 8 C.F.R. § 238.1(h). It is
undisputed that Fonseca-Sanchez did not file a response
to the Notice of Intent prior to ICE’s issuance of the FARO,
nor did she request an extension of time to do so. Although
ICE did not have authority to grant interim “U” visa relief,
see infra n.4, it did have the authority to stay Fonseca-
Sanchez’s removal proceedings or decline to issue a FARO
if it was aware that Fonseca-Sanchez had applied to CIS
for interim “U” visa relief. Fonseca-Sanchez, however,
failed to raise any objections to her removal, including her
present “U” visa claim. Furthermore, Fonseca-Sanchez
filed her petition for review in this court two days prior
to CIS’ original denial of her interim “U” visa petition. Her
filing also was over two months before CIS issued its second
denial based on Fonseca-Sanchez’s submission of addi-
tional evidence. Therefore, her present petition for review
clearly was filed before she had even received an answer
from CIS, let alone exhausted that administrative process.
Accordingly, we find that Fonseca-Sanchez failed to
exhaust her administrative remedies with respect to her
“U” visa claim and hold that this court lacks jurisdiction
to hear her petition.
This court would still lack jurisdiction, even if we were
to find that Fonseca-Sanchez’s post-FARO interim “U” visa
claim was not barred by her failure to exhaust her adminis-
trative remedies following the issuance of the Notice of
Intent. Jurisdiction under 8 U.S.C. § 1252 would fail
because her claims are not based on a “final order of
removal” or a matter decided by ICE in the course of

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10 No. 06-2387
removal proceedings. 8 U.S.C. §§ 1252(a)(1) and 1252(a)(5).
Fonseca-Sanchez filed her “U” visa petition after she
was issued the FARO. The only question remaining is
whether her “U” visa petition could be considered part
of the final order of removal. As we previously have
noted, the Supreme Court has instructed that the term
“ ‘final orders of deportation’ should be read to include
not only the actual order of deportation, but all orders
closely related to the deportation proceeding conducted
pursuant to 8 U.S.C. § 1252(b) and entered during the
proceeding, such as an order denying voluntary departure
or an adjustment of status.” Carvajal-Munoz v. INS, 743 F.2d
562, 566 (7th Cir. 1984) (citing Foti v. INS, 375 U.S. 217, 220-
23 (1963) (construing former § 1105(a), which was the
predecessor to the current § 1252)). “Ancillary determina-
tions made outside the context of a proceeding under
8 U.S.C. § 1252(b), however, such as granting a stay of
deportation, are not subject to direct review.” Id. Thus,
“[o]nly matters ‘ “intimately associated and immediately
associated’ ” with the final order or ‘governed by the
regulations applicable to the deportation proceeding itself,
and . . . ordinarily presented to the special inquiry officer
[immigration judge] who entered the deportation order’
fall within the ambit of direct appellate review.” Id. (quot-
ing Cheng Fan Kwok v. INS, 392 U.S. 206, 217 (1968) (cita-
tions omitted)). Here, Fonseca-Sanchez’s petition to CIS
for interim relief under the “U” visa statute was made
after ICE issued the FARO, and therefore it was outside of
the expedited removal proceedings commenced and
concluded by ICE. CIS’ subsequent denial of Fonseca-
Sanchez’s petition was separate and apart from the re-
moval proceedings and not “closely related” to the FARO.
In other words, CIS’ denial was an ancillary determination
made outside of the context of a proceeding under

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No. 06-2387 11
§ 1252(b). Accordingly, this court lacks jurisdiction to
exercise direct review over Fonseca-Sanchez’s petition.
As a final matter, we note that at the heart of Fonseca-
Sanchez’s petition is a challenge to DHS’ current interpre-
tation of the statutory language creating the “U” visa
classification set forth in CIS’ guideline memoranda.
Specifically, Fonseca-Sanchez contends that there is no
basis in the text of the “U” visa statute for the guideline
memoranda’s disqualification of any petitioner who was
convicted of an aggravated felony or who has been subject
to a FARO. While a direct petition raising such a claim is
not within this court’s limited jurisdiction, the govern-
ment indicated that a potential proper means and forum
for such a claim could be an action in the appropriate
district court under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq. Fonseca-Sanchez, however,
did not bring her claims under the APA, and therefore
we need not address the propriety of such a challenge and
lack jurisdiction to consider the merits of her claim.
III.
This court lacks jurisdiction over Fonseca-Sanchez’s
direct petition for review of CIS’ denial of her petition for
interim “U” visa relief because she failed to exhaust her
administrative remedies when she did not raise that issue,
or any other issue, in response to ICE’s Notice of Intent
prior to being issued a FARO. Moreover, there is no basis
in 8 U.S.C. § 1252 for this court to exercise jurisdiction over
CIS’ denial of Fonseca-Sanchez’s petition for interim “U”
visa relief. Accordingly, Fonseca-Sanchez’s petition for
review is D ISMISSED .

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12 No. 06-2387
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-13-07

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