United States of America v. Arturo Leal-Monroy

United States Court of Appeals
For the Eighth Circuit
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No. 19-2745
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United States of America,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Arturo Leal-Monroy,
lllllllllllllllllllllDefendant - Appellee.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 23, 2020
Filed: February 26, 2021
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Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
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COLLOTON, Circuit Judge.
The government appeals an order of the district court dismissing an indictment
that charged Arturo Leal-Monroy with illegal reentry to the United States under 8
U.S.C. § 1326(a), (b)(2). We conclude that the district court erred in ruling that Leal-
Monroy made a sufficient showing to attack the deportation order that underlies the

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charge in this criminal case. We therefore reverse and remand for further
proceedings.
A grand jury in Minnesota charged Leal-Monroy in March 2018 with unlawful
reentry into the United States after a previous removal from the country in 1998. See
8 U.S.C. § 1326(a), (b)(2). In 1997, Leal-Monroy was convicted of aggravated
criminal sexual abuse in Illinois under 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1996).
Relying on this adjudication, an immigration court in Chicago found him removable
in 1998 based on a conviction for an aggravated felony. Leal-Monroy moved to
dismiss the unlawful reentry charge in 2018 on the ground that the entry of the
previous order of removal in 1998 was fundamentally unfair. See 8 U.S.C. § 1326(d).
To defeat a charge of unlawful reentry by attacking the prior deportation order,
a defendant must establish that the entry of the order was “fundamentally unfair.” Id.
§ 1326(d)(3). This standard requires a showing that there was a fundamental
procedural error in the removal proceeding that resulted in actual prejudice. United
States v. Espinal, 956 F.3d 570, 574 (8th Cir. 2020). Actual prejudice means that but
for the procedural error, there was a reasonable likelihood that the alien would not
have been deported. Id. at 575.
The district court concluded that Leal-Monroy satisfied this standard. The
court found fundamental procedural error because the immigration judge in 1998
allowed the attorney for the government to dictate the amount of Leal-Monroy’s bail,
and the judge and the government attorney allegedly provided misinformation about
whether Leal-Monroy’s prior conviction in Illinois was an aggravated felony. The
court posited that if Leal-Monroy had been released on bail, then he “may have been
able to secure counsel,” and counsel could have presented a “potentially successful
argument” that his prior conviction did not qualify as an aggravated felony. On this
view, Leal-Monroy suffered actual prejudice, because without a conviction for an
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aggravated felony, he would not have been removed. For these reasons, the court
dismissed the indictment charging unlawful reentry after a prior removal.
The government appeals, and argues that Leal-Monroy failed to establish actual
prejudice. Leal-Monroy defends the district court’s rationale and asserts that if the
removal proceeding had been conducted differently, then there was a reasonable
likelihood that he could have defeated the government’s contention that he was
convicted of an aggravated felony. The term “aggravated felony” includes “sexual
abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Leal-Monroy maintains that as of
1998, it was not established that his conviction in Illinois for aggravated sexual abuse
constituted “sexual abuse of a minor” within the meaning of the immigration laws.
We reject this argument because there is no reasonable likelihood that any
argument from counsel in 1998 would have succeeded in defeating the charge of
removability. In Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2005) (per
curiam), the Seventh Circuit held that a conviction under 720 Ill. Comp. Stat. 5/12-
16(b) (1996), which criminalized “an act of sexual conduct on a family member
younger than 18,” was a conviction for “sexual abuse of a minor.” Id. at 465. The
victim there was under 13 years of age, so the statute forbade as “sexual conduct” the
touching of any part of the victim’s body for the purpose of sexual gratification or
arousal. Id. (citing 720 Ill. Comp. Stat. 5/12-12(e) (1996)). The court reasoned that
the alien’s conduct fit “squarely within the ordinary meaning of sexual abuse of a
minor.” Id.
Leal-Monroy was convicted under another subsection of the same Illinois
statute, 720 Ill. Comp. Stat. 5/12-16(c)(1)(i) (1996), which prohibited “an act of
sexual conduct with a victim who was under 13 years of age.” Like the alien in
Espinoza-Franco, Leal-Monroy was convicted for touching any part of a child’s body
for the purpose of sexual gratification or arousal. See 720 Ill. Comp. Stat. 5/12-12(e)
(1996). It follows from Espinoza-Franco that Leal-Monroy, too, committed “sexual
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abuse of a minor” under the immigration laws. Although the issue had not been
litigated in the federal court of appeals as of 1998, the speculative possibility that an
immigration court within the Seventh Circuit would have decided it incorrectly is
insufficient to demonstrate actual prejudice. And even if there were a reasonable
likelihood of a mistaken ruling by the immigration court, that potential would not
make the proceeding fundamentally unfair. Leal-Monroy had no right to receive “a
windfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364,
370 (1993).
Leal-Monroy argues alternatively that he could have sought relief from removal
if the immigration proceeding had been conducted differently. He cites the potential
for a waiver of inadmissibility and for withholding of removal. We see no reasonable
likelihood that such relief would have been granted or that Leal-Monroy would have
avoided removal.
The Attorney General may, in his discretion, waive provisions making an alien
inadmissible to the United States if the Attorney General is satisfied that the alien’s
denial of admission would result in extreme hardship to a lawfully present spouse,
parent, or child of the alien. 8 U.S.C. § 1182(h)(1)(B). Leal-Monroy’s theory seems
to be that his conviction for a crime involving moral turpitude (sexual abuse of a
minor) rendered him inadmissible, and a waiver of that inadmissibility would allow
him to adjust his status to lawful permanent resident and avoid removal. This
argument has several shortcomings.
First, a waiver of inadmissibility is not available to an alien who is facing
removal; the statute “limits waivers to aliens who seek a visa, admission, or an
adjustment of status.” Palma-Martinez v. Lynch, 785 F.3d 1147, 1149 (7th Cir.
2015). Leal-Monroy was removable because he had sustained a conviction for an
aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). He was not an alien applying
for readmission to the country or seeking adjustment of status, so he would not have
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benefited from a waiver of inadmissibility. See Kilic v. Barr, 965 F.3d 469, 472 (6th
Cir. 2020).
Second, if we nonetheless assume that Leal-Monroy could have applied for
adjustment of status, cf. Snajder v. INS, 29 F.3d 1203, 1207 (7th Cir. 1994), and that
a waiver could have helped him to avoid removal, there is no reasonable likelihood
that he would have been eligible to obtain one. Leal-Monroy says that the waiver was
warranted because his family was likely to suffer “extreme hardship” as a result of his
removal. See 8 U.S.C. § 1182(h)(1)(B). This relief is unavailable, however, to an
alien like Leal-Monroy who had been convicted of an aggravated felony. Id.
§ 1182(h); see Guerrero-Perez v. INS, 242 F.3d 727, 737 (7th Cir. 2001).
Leal-Monroy argues that an aggravated felony makes an alien ineligible for the
waiver only if the alien “has previously been admitted to the United States as an alien
lawfully admitted for permanent residence,” 8 U.S.C. § 1182(h), and that he was not
so admitted. See Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013).
Rather, he asserts, he adjusted his status to lawful permanent resident after he entered
the United States, so he could still qualify for a waiver of inadmissibility despite the
aggravated felony. The record reflects, however, that Leal-Monroy entered the
country on an immigrant visa, R. Doc. 45-1, which provides for lawful permanent
residence in the United States. See United States v. Idowu, 105 F.3d 728, 731 (D.C.
Cir. 1997). There is no evidence that his immigration status ever changed; the district
court found only that he was a permanent legal resident in March 1998, not that he
changed his status after entering on the visa. R. Doc. 81, at 2-3; R. Doc. 69, at 2; R.
Doc. 67, at 3:22-25. Leal-Monroy was therefore ineligible for a waiver of
inadmissibility, because he was lawfully admitted for permanent residence and then
convicted of an aggravated felony. See 8 U.S.C. § 1182(h).
Third, even if Leal-Monroy had been eligible for a waiver of inadmissibility,
there is no reasonable likelihood that he would have received one as a matter of the
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Attorney General’s discretion. The statute required a showing that his family would
suffer “hardship substantially different from and more severe than that suffered by the
ordinary alien who is deported.” Palmer v. INS, 4 F.3d 482, 487-88 (7th Cir. 1993)
(quoting Sanchez v. INS, 755 F.2d 1158, 1161 (5th Cir. 1985)). Economic detriment
and emotional hardship caused by severing ties are common results of deportation
and thus generally insufficient to establish extreme hardship. Id. at 488. In the
immigration court, Leal-Monroy cited only the fact that he provided some financial
support to his three children and that his mother was sick. He did not augment the
record in this criminal case with further evidence of hardship, so the record shows
only “ordinary” adversity. The case for a favorable exercise of discretion was further
weakened by Leal-Monroy’s recent conviction for sexual abuse of a minor. See id.
at 489-90. Accordingly, there was no actual prejudice based on the possibility of a
waiver under § 1182(h).
On withholding of removal, Leal-Monroy argues that it was more likely than
not that he would have been persecuted in Mexico based on his membership in a
particular social group. See 8 U.S.C. § 1231(b)(3)(A). Even assuming that he was
not ineligible for this relief as an alien convicted of a “particularly serious crime,” see
id. § 1231(b)(3)(B)(ii); Estrada-Martinez v. Lynch, 809 F.3d 886, 889, 892-93 (7th
Cir. 2015), there is no reasonable likelihood that he could have met the requirements
for relief. Leal-Monroy presented no evidence that he belongs to a cognizable social
group or that he would have been persecuted in Mexico as a result. There is thus no
reasonable likelihood that an immigration court in 1998 would have granted
withholding of removal.
Leal-Monroy argues finally that the Immigration and Naturalization Service in
1998 might have exercised its discretion to dismiss the removal proceeding if Leal-
Monroy had retained counsel and confronted the government with a vigorous defense.
This speculative possibility is insufficient to establish actual prejudice when there is
no reasonable likelihood that the alien had a meritorious defense to removal.
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For these reasons, Leal-Monroy may not challenge in this criminal case the
validity of the immigration court’s underlying deportation order from 1998. See 8
U.S.C. § 1326(d). The order dismissing the indictment is therefore reversed, and the
case is remanded for further proceedings.
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