United States of America v. Luis Gil-Lopez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2650
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
LUIS G IL‐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.
____________________
A RGUED MARCH 31, 2016 — D ECIDED J UNE 16, 2016
____________________
Before MANION and KANNE , Circuit Judges, and P EPPER ,*
District Judge.
P EPPER , 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.

-- 1 of 9 --

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

-- 2 of 9 --

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),

-- 3 of 9 --

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

-- 4 of 9 --

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

-- 5 of 9 --

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. A NALYSIS
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

-- 6 of 9 --

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

-- 7 of 9 --

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.

-- 8 of 9 --

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.
A FFIRMED.

-- 9 of 9 --