                                In the
    United States Court of Appeals
                 For the Seventh Circuit
                            ____________

No. 03-1527
CARLOS GONZALEZ,
                                                    Petitioner-Appellee,
                                    v.


CYNTHIA J. O’CONNELL, District Director,
Bureau of Immigration and Customs Enforcement,
and UNITED STATES OF AMERICA,
                                  Respondents-Appellants.
                     ____________
               Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
                 No. 02 C 7511—Milton I. Shadur, Judge.
                            ____________
     ARGUED SEPTEMBER 19, 2003—DECIDED JANUARY 21, 2004
                            ____________


    Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.
 RIPPLE, Circuit Judge. The Immigration and Naturalization
                          1
Service (“Agency”)           initiated removal pro-


1
  Recently, the Immigration and Naturalization Service was
abolished, and its immigration enforcement function was trans-
ferred to the Bureau of Immigration and Customs Enforcement
in the newly created Department of Homeland Security. See
Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003). To
                                                  (continued...)
2                                                    No. 03-1527

ceedings against Carlos Gonzalez in August of 2002 as a
result of his conviction in the Circuit Court of Cook County,
Illinois, for possession of a controlled substance, cocaine. It
also placed Mr. Gonzalez in physical civil immigration
custody under the authority of § 236(c) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1226(c). After an
immigration judge (“IJ”) denied Mr. Gonzalez’s request for
bond, citing § 1226(c)’s mandatory detention requirement,
Mr. Gonzalez filed a petition for a writ of habeas corpus. See
28 U.S.C. § 2241. His petition alleged that he was entitled to
immediate release because § 1226(c)’s mandatory detention
requirement was unconstitutional as applied to him. The
district court agreed and issued the writ; the Government
timely appealed. For the reasons set forth in this opinion, we
must reverse the judgment of the district court.


                                I
                       BACKGROUND
A. Facts
  Mr. Gonzalez is a native and citizen of El Salvador. He
entered the United States in 1990 and became a lawful
permanent resident of this country in 1994. In November of
2001, Mr. Gonzalez was found guilty of possession of a
controlled substance, cocaine, in violation of Illinois law, see
720 ILCS 570/402(c), and was sentenced to two years of

1
  (...continued)
avoid confusion, we shall refer to this entity as the “Agency.”
Also, many of the immigration regulations at issue in this case
recently were reclassified, although their substance, as it relates
to this appeal, remains the same. We shall cite to the new reg-
ulations in this opinion.
No. 03-1527                                                          3

probation. Accordingly, the Agency placed Mr. Gonzalez in
removal proceedings in August of 2002. It charged him with
removability as an alien convicted of an aggravated felony,
                                  2
see 8 U.S.C. § 1227(a)(2)(A)(iii), and as an alien convicted of
a state law relating to a controlled substance, see 8 U.S.C. §
                 3
1227(a)(2)(B)(i). The Agency also placed him in physical
civil immigration custody pending his removal proceedings
                                    4
under the authority of § 1226(c).
  On October 17, 2002, an IJ held a custody/bond rede-
termination hearing, referred to by Mr. Gonzalez’s counsel
as the equivalent of a “Joseph hearing.” The IJ determined
that Mr. Gonzalez was subject to mandatory detention
pending removal proceedings under § 1226(c) because he
was removable as an alien convicted of an aggravated
felony and of a state drug offense. Therefore, bond was not
available to Mr. Gonzalez.
  Mr. Gonzalez did not appeal the IJ’s decision to the Board
of Immigration Appeals (“BIA”), but, on October 18, 2002,
he filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Illinois. He

2
  8 U.S.C. § 1227(a)(2)(A)(iii) provides: “Any alien who is con-
victed of an aggravated felony at any time after admission is
deportable.”
3
   8 U.S.C. § 1227(a)(2)(B)(i) provides: “Any alien who at any time
after admission has been convicted of a violation of . . . any law
or regulation of a State . . . relating to a controlled substance . . .
, other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana, is deportable.”
4
  Under 8 U.S.C. § 1226(c)(1)(B), the Attorney General is required
to take into custody any alien who “is deportable by reason of
having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title.”
4                                                 No. 03-1527

sought an order compelling the Agency to conduct an
individualized bond determination. His petition alleged that
he was not “deportable” under § 1226(c)(1)(B) because he
was not “convicted” of either an aggravated felony, see 8
U.S.C. § 1227(a)(2)(A)(iii), or a state law relating to a
controlled substance, see 8 U.S.C. § 1227(a)(2)(B)(i). His
contention that he was not “convicted” for immigration
purposes was based on Illinois law, which provides that
probationary dispositions, such as the one Mr. Gonzalez
received, are not “conviction[s].” 720 ILCS 570/410(g)
(mandating that a probationary disposition “is not a con-
viction . . . for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime”). He main-
tained that § 1226(c)’s mandatory detention requirement
violated his right to due process under the Fifth and
Fourteenth Amendments because he raised a good-faith
argument that he would not in fact be deported.


B. District Court Proceedings
  As a threshold matter, the district court held that Mr.
Gonzalez was not required to exhaust his administrative
remedies by appealing to the BIA the IJ’s determination that
he was ineligible for bond. The court determined that his
case was excepted from the exhaustion requirement because
“the INS authorities are of course bound to conform to
Section 1226(c), so that any attempt by Gonzalez to chal-
lenge his detention before them would be an exercise in
total futility.” R.8 at 2.
   As to the merits, the district court first noted that under
Illinois law probationary dispositions are not “convic-
tion[s].” 720 ILCS 570/410(g). Because both removability
grounds charged against Mr. Gonzalez required a “convict-
No. 03-1527                                                     5

[ion],” see 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i), the
court held there was a “serious substantive legal question”
regarding his deportability. R.8 at 2. That being the case, it
concluded that Mr. Gonzalez’s right to due process under
the Fifth and Fourteenth Amendments would be violated if
he were subject to mandatory detention under § 1226(c).


                               II
                        DISCUSSION
   We believe it first would be helpful to set out a brief
overview of the procedures at issue in this case. Section
1226(c) requires the Attorney General to take into custody
and mandatorily detain certain aliens. See 8 U.S.C. § 1226(c)
(“The Attorney General shall take into custody any alien
who . . . .”). Included in this list are aliens who are “de-
portable” because they have been “convicted” of an ag-
gravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), or “convicted”
of violating a state law relating to a controlled substance, 8
U.S.C. § 1227(a)(2)(B)(i). 8 U.S.C. § 1226(c)(1)(B). After
the Agency takes an alien into custody and orders him
mandatorily detained under § 1226(c), a “Joseph hearing”
before an IJ is “immediately provided” if the alien claims he
is not covered by § 1226(c). Demore v. Kim, 123 S. Ct. 1708,
1712 n.3 (2003); see also 8 C.F.R. §§ 236.1(d)(1) & 1236.1(d)(1)
(explaining that an IJ may redetermine the initial custody
and bond determination of the district director any time
before a final deportation order); § 1003.19(h)(1)(ii) (provid-
ing that an alien may seek a “determination by an immigra-
tion judge that the alien is not properly included” within §
1226(c)). “At the hearing, the detainee may avoid manda-
tory detention by demonstrating that he is not an alien, was
not convicted of the predicate crime, or that the INS is
6                                                 No. 03-1527

otherwise substantially unlikely to establish that he is in fact
subject to mandatory detention.” Kim, 123 S. Ct. at 1712 n.3
(citations omitted); see also In re Joseph, 22 I. & N. Dec. 799,
1999 BIA LEXIS 25, at *14 (BIA 1999) (noting that a
Joseph hearing provides an alien “the opportunity to offer
evidence and legal authority on the question whether the
Service has properly included him within a category that is
subject to mandatory detention”). Thus, “the [IJ] must
necessarily look forward to what is likely to be shown
during the hearing on the underlying removal case.” Id. at
*20.
   The IJ’s ultimate decision “may be based upon any
information that is available to the [IJ] or that is presented
to him or her by the alien or the Service.” 8 C.F.R.
§ 1003.19(d). If the IJ determines the alien does fall within
§ 1226(c), then he is without authority to conduct an indi-
vidualized bond determination. See 8 C.F.R. § 1003.19(h)(1)
(i)(E). However, if the IJ determines the alien does not fall
within § 1226(c), then he may consider the question of bond.
See In re Joseph, 22 I. & N. Dec. 799, 1999 BIA LEXIS 25, at *16
(BIA 1999) (“A determination in favor of an alien on this
issue does not lead to automatic release. It simply allows an
[IJ] to consider the question of bond . . . .”). The IJ’s ruling
then may be appealed to the BIA for review under the same
governing principles. See 8 C.F.R. §§ 236.1(d)(3) &
1236.1(d)(3) (explaining that an alien may appeal to the BIA
an IJ’s custody and bond determinations).
  With this structure in mind, we turn to Mr. Gonzalez’s
petition. Mr. Gonzalez challenges § 1226(c)’s mandatory
detention as applied to detainees, such as him, who raise
what his counsel characterized as a “good-faith argument”
that they will not in fact be deported. Before reaching that
contention, however, we must address two threshold mat-
No. 03-1527                                                     7

ters. First, we must ensure that we have subject matter
jurisdiction to adjudicate Mr. Gonzalez’s claim. Next, we
must consider whether Mr. Gonzalez is required to exhaust
his administrative remedies by appealing to the BIA before
bringing his claim via a writ of habeas corpus to federal
court.


A. Subject Matter Jurisdiction
  Although both parties agree that 8 U.S.C. § 1226(e) does
not deprive this court of jurisdiction, we have an independ-
ent duty to verify our subject matter jurisdiction before
proceeding. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 95 (1998). Section 1226(e) states: “The Attorney General’s
discretionary judgment regarding the application of this
section shall not be subject to review. No court may set
aside any action or decision by the Attorney General under
this section regarding the detention or release of any alien
or the grant, revocation, or denial of bond or parole.”
Arguably, Mr. Gonzalez is contesting a “discretionary
judgment” or “decision by the Attorney General” to detain
him under § 1226(c), and therefore, under § 1226(e), no court
may “set aside” that decision.
  That very argument, however, was rejected by this court
in Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999), and more
recently, by the Supreme Court in Demore v. Kim, 123 S. Ct.
1708 (2003). In both Kim and Parra, aliens who were man-
datorily detained under § 1226(c) challenged that section as
unconstitutional. The Supreme Court in Kim, consistent with
this court’s earlier decision in Parra, held that it was not
deprived of jurisdiction by § 1226(e) to consider a challenge
such as this one because the petitioner was not simply
challenging “a ‘discretionary judgment’ by the Attorney
General or a ‘decision’ that the Attorney General has made
8                                                  No. 03-1527

regarding his detention or release. Rather, [the petitioner]
challenges the statutory framework that permits his deten-
tion without bail.” Id. at 1714 (citing Parra, 172 F.3d at 957
(“Section 1226(e) likewise deals with challenges to opera-
tional decisions, rather than to the legislation establishing
the framework for those decisions.”)).
  The Supreme Court relied on two rules of statutory
construction: “ ‘[W]here Congress intends to preclude judi-
cial review of constitutional claims its intent to do so must
be clear,’ ” Kim, 123 S. Ct. at 1714 (quoting Webster v. Doe,
486 U.S. 592, 603 (1988)), and “where a provision precluding
review is claimed to bar habeas review, the Court has
required a particularly clear statement that such is
Congress’ intent,” id. (citing INS v. St. Cyr, 533 U.S. 289, 308-
09 (2001)). With these principles as guidance, the Supreme
Court concluded: “Section 1226(e) contains no explicit
provision barring habeas review, and we think that its clear
text does not bar respondent’s constitutional challenge to
the legislation authorizing his detention without bail.” Id.
  Mr. Gonzalez, like the petitioners in Kim and Parra, is
not challenging “operational decisions” of the Attorney
General, Parra, 172 F.3d at 957, but “the statutory frame-
work that permits his detention without bail,” Kim, 123 S.
Ct. at 1714. Mr. Gonzalez is different in one respect from the
petitioners in Kim and Parra: He did not concede his
deportability. One might argue that this case is therefore
different because here a “discretionary decision” or even
just a “decision” is necessary to determine whether Mr.
Gonzalez is “deportable” and thus within § 1226(c)’s ambit.
This “decision,” as the argument might proceed, is not
subject to review under § 1226(e).
 That distinction, however, is illusory. The Attorney
General necessarily must make a “decision” that all detain-
No. 03-1527                                                  9

ees are “deportable” (or “inadmissible”) in order to detain
them under § 1226(c), even if they concede their deport-
ability. As noted above, the Supreme Court and this circuit
have not been persuaded such a “decision” is within
§ 1226(e)’s ban on review. Furthermore, such a distinction
ignores the Supreme Court’s blanket holding in Kim that
Congress’ language in § 1226(e) was simply not clear
enough to overcome the presumption that it was not de-
priving the federal courts of jurisdiction over constitutional
questions, a presumption which is even stronger in the
habeas context. See Kim, 123 S. Ct. at 1714. In sum, therefore,
we conclude that Kim and Parra control this case for pur-
poses of the § 1226(e) analysis. Accordingly, we hold that
we have subject matter jurisdiction to adjudicate Mr.
Gonzalez’s habeas claim.


B. Exhaustion of Administrative Remedies
  Mr. Gonzalez did not appeal to the BIA the IJ’s October
17, 2002 decision that he fell within § 1226(c). The only
question, therefore, is whether he was required to take such
a step before filing a habeas petition. The district court
determined that he was not because he was excepted from
the exhaustion requirement. We review that determination
de novo. See United States v. Castor, 937 F.2d 293, 296-97 (7th
Cir. 1991) (reviewing de novo a district court’s determina-
tion regarding exhaustion in the context of a habeas petition
brought under 28 U.S.C. § 2241(c)(3)).
  The exhaustion requirement can be statutorily created
or judicially created (so-called “common-law exhaustion”).
The difference is key. “Most agency organic acts do not
address exhaustion. When they do, however, courts are not
free simply to apply the common law exhaustion doctrine
with its pragmatic, judicially defined exceptions. Courts
10                                                No. 03-1527

must, of course, apply the terms of the statute.” II Kenneth
C. Davis et al., Administrative Law Treatise § 15.3, at 318 (3d
ed. 1994); Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003)
(noting the distinction between statutorily and judicially
imposed exhaustion is pivotal because “statutory exhaus-
tion requirements are mandatory, while the judicial (com-
mon-law) exhaustion doctrine is discretionary and includes
a number of exceptions”); Glisson v. United States Forest
Serv., 55 F.3d 1325, 1327 (7th Cir. 1995) (“[T]o the extent that
[exhaustion] is a doctrine of federal common law rather
than the inflexible command of a statute, it is to be applied
with due regard for its underlying purpose and for consid-
erations that may in particular cases counsel for a waiver.”).
Therefore, were we reviewing Mr. Gonzalez’s request that
he be excepted from exhaustion on the basis of futility in the
context of a statutorily mandated exhaustion requirement,
our lone question would be whether Congress intended
such an exception. See Booth v. Churner, 532 U.S. 731, 741 n.6
(2001) (instructing that courts should “not read futility or
other exceptions into statutory exhaustion requirements
where Congress has provided otherwise”); United States v.
Roque-Espinoza, 338 F.3d 724, 728-29 (7th Cir. 2003) (consid-
ering a request that the exhaustion requirement of 8 U.S.C.
§ 1326(d)(1) be excused because appeal to the BIA would be
futile and noting recent Supreme Court cases “construing
the contemporaneous exhaustion requirements of the Prison
Litigation Reform Act suggest strongly that futility excuses
will not go far”).
  However, exhaustion of administrative remedies is not
statutorily mandated in Mr. Gonzalez’s case. The INA
mandates exhaustion in order to challenge “final order[s] of
removal.” 8 U.S.C. § 1252(d)(1). However, this provision
does not cover challenges to preliminary custody or bond
determinations, which are quite distinct from “final order[s]
No. 03-1527                                                     11

of removal.” See Gornicka v. INS, 681 F.2d 501, 505 (7th Cir.
1982) (“[I]t is clear bond hearings are separate and apart
from deportations hearings. . . . A bond determination is not
a final order of deportation . . . and does not effect [sic] the
deportation proceeding.”). Also, Congress requires exhaus-
tion for certain types of habeas petitions, but not for those
petitions, such as Mr. Gonzalez’s, brought under 28 U.S.C.
§ 2241. See James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)
(“Section 2254(b)(1) requires state prisoners to exhaust all
available state court remedies before filing a Section 2254
petition, whereas Section 2241 contains no such exhaustion
requirement.”).
  “[W]here Congress has not clearly required exhaustion,
sound judicial discretion governs.” McCarthy v. Madigan,
                          5
503 U.S. 140, 144 (1992). In exercising that discretion, we
must balance the individual and institutional interests
involved, taking into account “the nature of the claim pre-
sented and the characteristics of the particular admini-
strative procedure provided.” Id. at 146. We start with “the
general rule that parties exhaust prescribed administrative


5
  McCarthy v. Madigan, 503 U.S. 140 (1992), has been superseded
by statute to the extent it held that federal prisoners seeking
monetary damages in a Bivens action are not required under 42
U.S.C. § 1997e to exhaust administrative remedies provided by
the Bureau of Prisons. See Wendell v. Asher, 162 F.3d 887, 890 (5th
Cir. 1998) (noting that the Prison Litigation Reform Act, Pub. L.
No. 104-134, § 803, 110 Stat. 1321, which took effect April 26,
1996, changed the exhaustion requirements contained in 42 U.S.C.
§ 1997e). However, McCarthy’s principle that when exhaustion is
not statutorily mandated, “sound judicial discretion governs,”
503 U.S. at 144, remains good law, as does its further admonitions
on how that discretion should be utilized. See, e.g., Zephyr
Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570-73 (5th Cir. 2001).
12                                                  No. 03-1527

remedies before seeking relief from the federal courts.” Id.
at 144-45; see also Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir.
1986) (accord). This rule, however, is not absolute. We have
held that individual interests demand that exhaustion be
excused when
     (1) requiring exhaustion of administrative remedies
     causes prejudice, due to unreasonable delay or an
     indefinite timeframe for administrative action; (2) the
     agency lacks the ability or competence to resolve the is-
     sue or grant the relief requested; (3) appealing through
     the administrative process would be futile because the
     agency is biased or has predetermined the issue; or (4)
     where substantial constitutional questions are raised.
Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) (internal
quotations and citations omitted).
  Mr. Gonzalez does not suggest that an “unreasonable
delay” would have resulted from an appeal to the BIA.
Rather, consistent with the district court, he relies on a
combination of the latter three exceptions. Specifically, he
argues that an appeal to the BIA would have been “futile,”
and thus unnecessary, because the BIA is without juris-
diction to decide constitutional questions, such as the due
process question he presented to the district court. In re-
lying on the futility exception, Mr. Gonzalez faces a heavy
burden because futility only exists if there is “no reasonable
prospect that [Mr. Gonzalez] could obtain any relief” by
pursuing an appeal to the BIA. Health Equity Res. Urbana,
Inc. v. Sullivan, 927 F.2d 963, 965 (7th Cir. 1991). Although
we ultimately agree that futility’s high standard is met in
this case, we cannot accept Mr. Gonzalez’s suggested broad
rationale for this holding.
  Mr. Gonzalez’s challenge is ultimately a constitutional
one, and an exception to the exhaustion requirement has
No. 03-1527                                                  13

been carved out for constitutional challenges to Agency
procedures because the BIA has no jurisdiction to adjudicate
constitutional issues. See Rashtabadi v. INS, 23 F.3d 1562,
1567 (9th Cir. 1994). Although his ultimate challenge is
constitutional, the premise of his constitutional argument is
statutory. Mr. Gonzalez argues that, because he has raised
a good-faith argument that he is not in fact deportable
under the statute, to mandatorily detain him under § 1226(c)
would violate his rights to due process under the law. His
predicate statutory argument regarding his deportability is
that he was not “convicted” for purposes of 8 U.S.C. §§
1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i), and therefore, he was
not legally “deportable” under those sections or eligible for
mandatory detention under § 1226(c)(1)(B).
   Although it is not entirely clear from the record, the IJ
apparently rejected this statutory argument at the Joseph
hearing. See R.6, Ex.2. It is unquestionable that the BIA
could have considered that predicate statutory argument on
an appeal from the IJ’s determination. See, e.g., In re Salazar-
Regino, 23 I. & N. Dec. 223, 2002 BIA LEXIS 2 (BIA 2002)
(considering whether an alien who received “deferred
adjudication” had been “convicted” for immigration
purposes). It is likewise clear that the BIA could have
granted Mr. Gonzalez relief, in the form of an order com-
pelling the IJ to perform an individualized bond hearing, if
it found his statutory contention meritorious. Indeed, as
discussed at the outset of our discussion, a whole web of
procedural mechanisms are set out in the regulations and
decisions interpreting them for the very purpose of allowing
both the IJ and BIA the opportunity to determine that an
alien does not fall within § 1226(c) before he is mandatorily
detained.
  Thus, the question becomes whether, by framing his chal-
lenge as one of constitutionality, with the statutory issue as
14                                                No. 03-1527

a mere predicate to that argument, a detainee such as Mr.
Gonzalez may skip bringing the statutory issue before the
BIA. As a general rule, the answer to that question must be
no. The Supreme Court has set out two purposes for
exhaustion: “protecting administrative agency authority and
promoting judicial efficiency.” McCarthy, 503 U.S. at 145; see
also Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.
1993). Requiring exhaustion in this circumstance fits both.
As to administrative authority, we must bear in mind that
the Agency has particular expertise in interpreting the INA.
See McCarthy, 503 U.S. at 145 (“Exhaustion concerns apply
with particular force . . . when the agency proceedings in
question allow the agency to apply its special expertise.”).
Also, as a matter of comity, the Agency should have the
opportunity, without reaching the constitutional issue, to
provide the petitioner the ultimate relief requested in the
first instance. Id. (“[T]he exhaustion doctrine recognizes the
notion, grounded in deference to Congress’ delegation of
authority to coordinate branches of Government, that
agencies, not the courts, ought to have primary responsibil-
ity for the programs that Congress has charged them to
administer.”). In this case, if the BIA had concluded that Mr.
Gonzalez’s statutory contention had merit, it could have
ordered an individualized bond determination hearing,
which was the same relief ordered by the district court
through a writ of habeas corpus.
   In terms of judicial efficiency, under these circumstances,
the BIA “could well resolve any controverted matter with-
out the need for involvement by the federal courts.” Duvall
v. Elwood, 336 F.3d 228, 232 (3d Cir. 2003); see also McCarthy,
503 U.S. at 145 (“When an agency has the opportunity to
correct its own errors, a judicial controversy may well be
mooted, or at least piecemeal appeals may be avoided.”). If
not, we are always available “to consider any constitutional
No. 03-1527                                                 15

challenge upon completion of the administrative proceed-
ings.” Duvall, 336 F.3d at 232. Furthermore, in adjudicating
such a challenge, we normally will benefit not only from a
more complete record, but also from the agency’s expertise
on questions presented to us, such as statutory questions
tied to broader constitutional issues. See McCarthy, 435 U.S.
at 145 (“[E]ven where a controversy survives administrative
review, exhaustion of the administrative procedure may
produce a useful record for subsequent judicial consider-
ation, especially in a complex or technical factual context.”).
For these reasons, we hold that a petitioner with a statutory
argument that has a reasonable prospect of affording him
relief may not skip the administrative process and go
straight to federal court by simply reconstituting his claim
as constitutional and claiming futility. See Health Equity Res.
Urbana, 927 F.2d at 965; see also Mojsilovic v. INS, 156 F.3d
743, 748 (7th Cir. 1998) (“Although due process claims do
not usually require exhaustion because the [BIA] cannot
adjudicate constitutional issues, the requirement applies
when the petitioner’s claim involves procedural errors
correctable by the administrative tribunal.” (internal
quotation and citation omitted)).
  That does not end our inquiry in this case, however,
because it appears that Mr. Gonzalez had “no reasonable
prospect [of obtaining] any relief” by an appeal to the BIA
because the BIA had clearly and repeatedly taken a position
contrary to Mr. Gonzalez’s lone statutory contention. Health
Equity Res. Urbana, 927 F.2d at 965. Mr. Gonzalez advanced
that he was not within § 1226(c)’s mandatory detention
ambit because his Illinois probationary disposition did not
count as a “conviction” for immigration purposes. How-
ever, the BIA held in In re Roldan-Santoyo, 22 I. & N. Dec.
512, 1999 BIA LEXIS 7 (BIA 1999), that “conviction” for
immigration purposes is not defined by state law, but by
16                                                     No. 03-1527

8 U.S.C. § 1101(a)(48)(A), under which Mr. Gonzalez’s
                                                  6
Illinois disposition counts as a “conviction.” The BIA
strongly reaffirmed that position in In re Salazar-Regino, 23
I. & N. Dec. 223, 2002 BIA LEXIS 2 (BIA Feb. 14, 2002),
approximately eight months before the IJ held on October
17, 2002, that Mr. Gonzalez fell within § 1226(c)’s ambit
because he was “convicted” for immigration purposes.
As counsel for the Government noted at oral argument,
the BIA’s decision in Salazar-Regino made clear that the
BIA deemed his statutory contention to be without merit.
Furthermore, there is nothing to indicate the BIA would
                    7
change its position. Therefore, appealing to the BIA would


6
    8 U.S.C. § 1101(a)(48)(A) provides:
      The term “conviction” means, with respect to an alien, a
      formal judgment of guilt of the alien entered by a court or, if
      adjudication of guilt has been withheld, where (i) a judge or
      jury has found the alien guilty or the alien has entered a plea
      of guilty or nolo contendere or has admitted sufficient facts
      to warrant a finding of guilt, and (ii) the judge has ordered
      some form of punishment, penalty, or restraint on the alien’s
      liberty to be imposed.
This court was faced with a plea of guilty and probationary
disposition under 720 ILCS 570/410 in Gill v. Ashcroft, 335 F.3d
574 (7th Cir. 2003), and concluded the “plea of guilty satisfies part
(i) of [§ 1101(a)(48)(A)], and the term of probation satisfies part
(ii), so he has been ‘convicted’ even though ‘adjudication of guilt
has been withheld.’ ” Id. at 576 (quoting 8 U.S.C.
§ 1101(a)(48)(A)).
7
  To the contrary, it appears the BIA was firm in its view that
“conviction” is defined by 8 U.S.C. § 1101(a)(48)(A), and not state
law, at the time the IJ rejected Mr. Gonzalez’s statutory argument
on October 17, 2002. This is demonstrated not only by Roldan-
Santoyo and Salazar-Regino, but also by the fact that on July 15,
                                                      (continued...)
No. 03-1527                                                    17

have been “futile” because the BIA had “predetermined”
the statutory issue, Iddir, 301 F.3d at 498, and Mr. Gonzalez
had “no reasonable prospect” of obtaining relief, Health
Equity Res. Urbana, 927 F.2d at 965. See Atlantic Richfield
Co. v. United States Dep’t of Energy, 769 F.2d 771, 782 (D.C.
Cir. 1984) (“[E]xhaustion is not required where, as here, it is
highly unlikely that the [agency] would change its posi-
tion.” (internal quotation and citation omitted)); 3 Charles
H. Koch, Jr., Administrative Law and Practice § 13.22[9], at 351
(2d ed. 1997) (“Where the agency has ruled on the issue in
a proceeding involving another party, the exhaustion
                                   8
requirement may be satisfied.”).


C. Due Process Claim
   The district court issued a writ of habeas corpus because
it held that, as applied to Mr. Gonzalez, § 1226(c) violated
due process because Mr. Gonzalez’s statutory contention
posed a “serious substantive legal question” regarding his
deportability. R.8 at 2. We review a district court’s decision

7
  (...continued)
2002, the BIA summarily affirmed an IJ’s holding that
a petitioner’s conviction and probationary disposition under
720 ILCS 570/410(g), the same Illinois statute governing Mr.
Gonzalez’s probationary disposition, is a “conviction” for
immigration purposes under 8 U.S.C. § 1101(a)(48)(A). See
Appellant’s Opening Brief at 5-6 & n.2, Gill v. Ashcroft, 335 F.3d
574 (7th Cir. 2003) (No. 02-2994).
8
  Cf. Lampkins v. Gagnon, 710 F.2d 374, 375 (7th Cir. 1983)
(holding that exhaustion in Wisconsin state court was not re-
quired where recent decisions of the Wisconsin Supreme Court
made it clear that pursuit of the prisoner’s claims would have
been futile).
18                                                No. 03-1527

to grant a writ of habeas corpus de novo. See Ward v. Sternes,
334 F.3d 696, 704 (7th Cir. 2003). We also review constitu-
tional questions and non-constitutional questions of law de
novo. See United States v. Israel, 317 F.3d 768, 770 (7th Cir.
2003); APS Sports Collectibles, Inc. v. Sports Time, Inc., 299
F.3d 624, 628 (7th Cir. 2002).
  The Supreme Court has instructed that government
detention is inconsistent with due process unless the de-
tention is “ordered in a criminal proceeding with adequate
procedural protections, or, in certain special and narrow
nonpunitive circumstances where a special justification,
such as harm-threatening mental illness, outweighs the
individual’s constitutionally protected interest in avoiding
physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690
(2001) (internal quotations and citations omitted). After this
case was decided by the district court, the Supreme Court
squarely held in Demore v. Kim, 123 S. Ct. 1708 (2003),
that “[d]etention during removal proceedings [pursuant to
§ 1226(c)] is a constitutionally permissible part of the
process.” Id. at 1721-22. This is the same result that this
court reached in Parra v. Perryman, 172 F.3d 954, 958 (7th
Cir. 1999). In both Kim and Parra, however, the detainees
at issue conceded their deportability. See Kim, 123 S. Ct.
at 1717; Parra, 172 F.3d at 958. Indeed, Kim’s holding was
expressly premised on that fact: “The INS detention of
respondent, a criminal alien who has conceded that he is de-
portable,” is constitutional. Kim, 123 S. Ct. at 1722 (emphasis
added); see also Parra, 172 F.3d at 958 (accord). These cases,
therefore, left open the question of whether mandatory
detention under § 1226(c) is consistent with due process
when a detainee makes a colorable claim that he is not in
fact deportable. Before Kim, but after Parra, several district
courts in our circuit held that § 1226(c) is unconstitutional as
applied to detainees who have a good-faith claim that they
No. 03-1527                                                 19

will ultimately be permitted to remain in the country. See,
e.g., Bonsol v. Perryman, 240 F. Supp. 2d 823, 827 (N.D. Ill.
2003).
   It is not necessary, however, for this court to reach this
important issue in this case. After the district court’s deci-
sion in this case, this court decided Gill v. Ashcroft, 335
F.3d 574 (7th Cir. 2003). Gill squarely rejected the argument
that Mr. Gonzalez advanced before the district court that he
was not in fact “deportable”: that “convict[ion]” for immi-
gration purposes is defined by state law, and that he was
not “convicted” according to Illinois law because he only
received a disposition of probation. See 720 ILCS 570/410(g)
(mandating that a disposition of probation is not a “convic-
tion”). Specifically, Gill held that the definition of “convic-
tion” for immigration purposes is governed by 8 U.S.C. §
1101(a)(48)(A), and that a probationary disposition under
720 ILCS 570/410 following a plea of guilty qualifies as a
“conviction” under that definition. See Gill, 335 F.3d at 579.
Gill, in effect, stripped Mr. Gonzalez of the predicate
argument underlying his constitutional claim—that he has
raised a “good-faith challenge” to his deportability—and
likewise rendered void the district court’s determination
that Mr. Gonzalez had posed a “serious substantive legal
question” regarding his deportability. In the language of
Parra, after Gill, Mr. Gonzalez’s “legal right to remain in the
United States ha[d] come to an end.” Parra, 172 F.3d at 958.
   Mr. Gonzalez agrees that “Gill addresses the issue of
his removability,” but argues that issue is not “dispositive”
in this case. Appellee’s Br. at 13. Although his argument
in this regard is not entirely clear, he appears to be argu-
ing that the mere fact that he contests his deportability,
regardless of whether that contention is meritless or not,
is enough to take him outside the reach of Kim and Parra. As
20                                                No. 03-1527

an initial matter, this position cuts against the very argu-
ment he emphasized to this court: that § 1226(c) is unconsti-
tutional as applied to detainees with a good-faith argument
that they are not in fact deportable. A distinction between
petitioners who raise facially meritless claims and those
who concede their deportability is one of form and not sub-
stance. Both are without a legal right to remain in the
United States. See Parra, 172 F.3d at 958.
  Furthermore, such a distinction cannot be squared with
the Supreme Court’s decision in Kim. The Court in Kim held
that “[d]etention during removal proceedings is a con-
stitutionally permissible part of the process.” Kim, 123 S. Ct.
at 1722. Again, under Mr. Gonzalez’s theory, § 1226(c)
would be violative of due process, and thus could be
avoided, when a detainee makes any claim, no matter how
ridiculous, that he is not in fact deportable. If that position
is correct, Kim’s holding is practically void, as is the con-
gressional purpose behind § 1226(c) “of preventing
deportable criminal aliens from fleeing prior to or during
their removal proceedings, thus increasing the chance that,
if ordered removed, the aliens will be successfully re-
moved,” a congressional purpose the Court in Kim accorded
significant weight. Id. at 1720.
   A wholly different case arises when a detainee who has a
good-faith challenge to his deportability is mandatorily
detained under § 1226(c). See Kim, 123 S. Ct. at 1738 (Souter,
J., dissenting) (“Some individual aliens covered by § 1226(c)
have meritorious challenges to removability or claims for
relief from removal. See Brief for Citizens and Immigrants
for Equal Justice et al. as Amici Curiae 10-20. As to such
aliens . . . the Government has only a weak reason under the
immigration laws for detaining them.”). However, this is
not such a case. We therefore hold that, because Kim and
No. 03-1527                                               21

Parra control this case, Mr. Gonzalez’s due process chal-
lenge to § 1226(c) must fail.


                       Conclusion
  For the foregoing reasons, we reverse the judgment of the
district court.
                                                  REVERSED

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-21-04
