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

No. 05-2697
LUIS F. PADILLA,
                                           Petitioner-Appellant,
                                v.

ALBERTO R. GONZALES and
DEBORAH ACHIM,
                                    Respondents-Appellees.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
        No. 05 C 1716—Samuel Der-Yeghiayan, Judge.
                         ____________
       Converted to a Petition for Review from an Order of
              the Board of Immigration Appeals.
                        No. A41-123-489
                         ____________
   ARGUED APRIL 11, 2006—DECIDED DECEMBER 7, 2006
                     ____________


 Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. The Board of Immigration
Appeals (“BIA”) ordered Luis Padilla removed to his
native Mexico because he committed two crimes of moral
turpitude. Padilla petitioned this court for review of the
BIA’s removal order and we dismissed his petition, leaving
the removal order intact. Before federal immigration
authorities got around to removing him, Padilla persuaded
2                                               No. 05-2697

an Illinois court to vacate the two convictions that supplied
the basis for his removal. Rather than asking the BIA
to reopen his case in light of his vacated convictions,
Padilla petitioned a federal district court for a writ of
habeas corpus. He asked the district court to find him
admissible to the United States and to order the Depart-
ment of Homeland Security to terminate its removal
proceedings against him. The district court denied
Padilla’s habeas petition, and Padilla took this appeal.
Under the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat.
231, we construe Padilla’s habeas appeal as a petition for
review and conclude we lack jurisdiction to consider its
merits because Padilla did not exhaust his administra-
tive remedies. We therefore dismiss the petition.


                     I. Background
   Padilla became a lawful permanent resident of the
United States in 1986. In 1989 he pleaded guilty to an
Illinois charge of criminal sexual abuse. 720 ILL. COMP.
STAT. 5/12-15. Two years later he pleaded guilty to obstruc-
tion of justice. 720 ILL. COMP. STAT. 5/31-4. At some point
Padilla left the United States, then attempted reentry on
May 7, 2000. Upon his return to the United States, federal
immigration authorities placed Padilla into removal
proceedings because of his criminal record. Those adminis-
trative proceedings concluded on February 27, 2004, when
the BIA found Padilla had committed two crimes involv-
ing moral turpitude—criminal sexual abuse and obstruc-
tion of justice—and ordered his removal to Mexico. See 8
U.S.C. § 1182(a)(2)(A) (alien who commits a crime of moral
turpitude is inadmissible). Padilla petitioned this court
for review of the BIA’s removal order. In an opinion dated
February 22, 2005, we dismissed his petition and the
removal order remained in effect. Padilla v. Gonzales, 397
F.3d 1016, 1021 (7th Cir. 2005) (agreeing with BIA’s
No. 05-2697                                                   3

determination that obstruction of justice under Illinois law
is a crime of moral turpitude, and foreclosing Padilla’s
efforts to rely on § 1182(a)(2)(A)(ii)’s so-called “petty
offense” exception for aliens who have committed only one
crime of moral turpitude).
  The Department of Homeland Security told Padilla to
report for removal to Mexico on May 10, 2005. Padilla then
moved the Illinois state court to withdraw the guilty
pleas that led to his 1989 sexual abuse conviction and his
1991 obstruction of justice conviction. His motion also
asked the state court to vacate and set aside those two
convictions. Padilla argued that his pleas were invalid in
light of a new Illinois law that went into effect on January
1, 2004. The new law provides, in relevant part:
    Before the acceptance of a plea of guilty[,] . . . the court
    shall give the following advisement to the defendant
    in open court:
      “If you are not a citizen of the United States, you are
      hereby advised that conviction of the offense for
      which you have been charged may have the conse-
      quences of deportation, exclusion from admission to
      the United States, or denial of naturalization under
      the laws of the United States.”
725 ILL. COMP. STAT. 5/113-8. The state court granted
Padilla’s motions on the same day he filed them, March 11,
2005. The court’s order—which was handwritten by
Padilla’s counsel—permitted Padilla to withdraw his guilty
pleas and vacated his sexual abuse and obstruction of
justice convictions. The order does not explain why the
state judge thought a law that became effective in January
2004 provided grounds to vacate judgments of conviction
entered in 1989 and 1991.
   On the basis of his newly vacated convictions, Padilla
petitioned the district court for the Northern District of
Illinois for a writ of habeas corpus pursuant to 28 U.S.C.
4                                             No. 05-2697

§ 2241. He asked the district court to declare him admissi-
ble to the United States and to order the Department of
Homeland Security to cease its efforts to remove him. As
Padilla’s May 10 removal date approached, the district
court held several hearings on his habeas petition. At an
April 28 hearing the court and parties discussed the
necessity of asking the BIA to reopen Padilla’s case to
consider the vacation of his convictions:
    THE COURT: Are you contemplating on going before
    the immigration court or the BIA? I think BIA made
    the final administrative decision in this case to see
    if they would vacate or reconsider their decision based
    on the new developments.
    [PADILLA’S COUNSEL]: It would be necessary to go
    before the Board of Immigration Appeals, your Honor.
    THE COURT: In the first instance?
    [PADILLA’S COUNSEL]: Yes.
    THE COURT: And then if they decide to reconsider or
    reopen, then they would send it to the immigration
    court?
    [PADILLA’S COUNSEL]: Correct.
    THE COURT: [Government’s counsel], would that be
    your understanding also?
    [GOVERNMENT’S COUNSEL]: Yes, your honor. On
    the circumstances of this case, yes; that’s correct.
    ....
    THE COURT: The proper authorities, really, on an
    issue like this should be the immigration court and the
    Board of Immigration Appeals because they’re the
    ones who entered the removal order and they’re the
    only ones who could vacate the removal order or
    reopen.
No. 05-2697                                                     5

  The court and parties agreed that Padilla would pre-
pare a motion asking the BIA to reopen his case. Although
Padilla’s ninety-day period for filing a motion to reopen
had long since expired, if the government joined in his
motion, he could file it beyond the ninety days.1 The
government said it would decide whether to join Padilla’s
motion before his May 10 removal date. The parties
reconvened before the district court on May 9. Padilla’s
counsel had prepared the motion as agreed, but the
government had still not decided whether to join in it. At
a 9 a.m. hearing the next morning, three hours before
Padilla was to report for removal to Mexico, the govern-
ment informed the district court and Padilla’s counsel
that it would not join in his motion to reopen. Counsel for
the government said Padilla could ask the BIA to exercise
its authority to reopen his case sua sponte at any time.2
Padilla’s counsel responded, “[T]he only problem is that
even if there were such a provision—and I believe that
there is—the other problem for Mr. Padilla is that he
has a 12:00 o’clock surrender time.” Padilla never filed
any motion asking the BIA to reopen his case to consider
the effect of his vacated convictions on the order of re-
moval.
  The district court found that the BIA’s removal order
remained valid despite the recent state court order vacat-
ing Padilla’s convictions. Accordingly, the court denied
Padilla’s habeas petition and motion to stay his removal.



1
  8 C.F.R. § 1003.2(c)(2) and (3)(iii) (alien must file motion to
reopen within ninety days of the final administrative decision,
but the ninety-day limitation is waived if all parties join in the
motion).
2
  8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or
reconsider on its own motion any case in which it has rendered
a decision.”).
6                                                   No. 05-2697

After listening to further argument at a hearing the next
day, the court denied Padilla’s motion to reconsider.
  The same day the district court denied Padilla’s motion
to reconsider—May 11, 2005—President Bush signed
into law the REAL ID Act of 2005, Pub. L. 109-13, 119
Stat. 231.3 Padilla filed his notice of appeal on June 9. At
some point on or after May 10, the Department of Home-
land Security removed Padilla to Mexico.


                       II. Discussion
A. Construing the appeal
  The jurisdictional adjustments contained in the REAL ID
Act apply retroactively to Padilla’s case; they apply “to
cases in which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after the
date of enactment of this division.” Pub. L. No. 109-13, 119
Stat. 231, 311 Div. B, Title I, § 106(b). The REAL ID Act
further instructs district courts that any pending habeas
petitions (28 U.S.C. § 2241) challenging final orders of
removal must be transferred to the courts of appeals
and treated as petitions for review. Id. at § 106(c).
  Congress did not specify how to treat habeas petitions
that were already pending on appeal when the REAL ID
Act was enacted on May 11, 2005. However, we have joined
several other circuits in concluding these habeas claims
should also be treated as petitions for review because
Congress clearly intended the courts of appeals to be the
one judicial forum for hearing challenges to administra-


3
  With inapplicable exceptions, the REAL ID Act stripped the
district courts of jurisdiction to review removal orders, specifi-
cally including their jurisdiction to review habeas challenges to
removal orders under 28 U.S.C. § 2241. 8 U.S.C. § 1252(a)(5).
No. 05-2697                                                  7

tive removal orders. Gonzales-Gomez v. Achim, 441 F.3d
532, 533 (7th Cir. 2006); Rosales v. Bureau of Immigration
& Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2006);
Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir.
2005); Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.
2005). So whether Padilla’s habeas petition was cur-
rently pending before the district court or was already on
appeal to this court when the REAL ID Act went into
effect, we construe this appeal as a petition for review of
the BIA’s removal order. The REAL ID Act retroactively
deprived the district court of jurisdiction to decide Padilla’s
claims and nullifies its ruling on the habeas petition. See
Bonhometre, 414 F.3d at 446.


B. Jurisdiction over the petition for review
   When a petition for review challenges a final order of
removal, we have jurisdiction only when “the alien has
exhausted all administrative remedies available to the
alien as of right.” 8 U.S.C. § 1252(d)(1). The government
contends Padilla did not exhaust his administrative
remedies with respect to the issues raised on this appeal
because he never asked the BIA to reopen his case to
consider his vacated convictions. Padilla responds that
reopening is not available “as of right” because reopening
lies within the BIA’s discretion, so § 1252(d)(1) does not
apply.
  The statute does not define the phrase “as of right,” but
the touchstone is whether the BIA has the authority
and the ability to grant meaningful relief. See Bonhometre,
414 F.3d at 447 (“[A] claim is ‘available as of right’ if, at
the very least, (1) the alien’s claim was within the juris-
diction of the BIA to consider and implicated agency
expertise, and (2) the agency was capable of granting the
remedy sought by the alien.”) (footnotes omitted); Sewak v.
INS, 900 F.2d 667, 670 (3d Cir. 1990) (exhaustion of
8                                               No. 05-2697

administrative remedies is not required on a due pro-
cess claim because the BIA lacks jurisdiction to ad-
judicate constitutional issues). The principle underlying
this policy is that courts should not address an immigra-
tion issue until the appropriate administrative authority
has had the opportunity to apply its specialized knowledge
and experience to the matter. See generally Gonzales v.
Thomas, 126 S. Ct. 1613, 1615 (2006) (“ ‘The agency
can bring its expertise to bear upon the matter; it can
evaluate the evidence; it can make an initial determina-
tion; and, in doing so, it can, through informed discussion
and analysis, help a court later determine whether its
decision exceeds the leeway that the law provides.’ ”)
(quoting INS v. Ventura, 537 U.S. 12, 17 (2002) (per
curiam)). Here, the BIA had the authority to reopen
Padilla’s case sua sponte “at any time,” and had the ability
to grant relief if it concluded his newly vacated convictions
rendered the removal order invalid. See 8 C.F.R.
§ 1003.2(a). Section 1252(d)(1) applies, so Padilla was
required to give the BIA an opportunity to address his
arguments before presenting them to this court.
   Padilla is unable to cite a single case in which a court of
appeals asserted jurisdiction over issues that were never
presented to the BIA. He relies most heavily on Panjwani
v. Gonzales, 401 F.3d 626 (5th Cir. 2005), for its statement
that filing a motion to reopen cannot be characterized as
a remedy available “as of right” because the BIA has broad
discretion whether to grant or deny such motions. Id. at
631 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th
Cir. 2001)). But in Panjwani the alien actually filed a
motion—albeit an untimely one—asking the BIA to reopen
his case. The Fifth Circuit held only that it had “jurisdic-
tion over the BIA’s denial of an untimely motion to reopen
deportation proceedings in instances where the petitioner
files such a motion.” Panjwani, 401 F.3d at 632 (emphasis
added). Unlike the petitioning alien in Panjwani, Padilla
No. 05-2697                                                9

never gave the BIA any opportunity to consider his
arguments about the effect of his vacated convictions.
  Goonsuwan, cited in Panjwani, does not help Padilla
either. After the BIA ordered Goonsuwan removed from
the United States because of his criminal activities, he
petitioned for a writ of habeas corpus in the district court.
Goonsuwan, 252 F.3d at 384-85. The district court issued
the writ, but the Fifth Circuit reversed because the dis-
trict court lacked jurisdiction to consider Goonsuwan’s
arguments when he had not first presented them to the
BIA. Id. at 386 (“[W]hile generally a motion to reopen is
not required to exhaust administrative remedies[,] . . .
Goonsuwan’s failure to raise his ineffective assistance
of counsel claim before the BIA deprived the district
court of jurisdiction to consider the issue.”).
  By saying motions to reopen are not generally re-
quired, the Fifth Circuit meant only that in the typical
case an alien will first present his arguments to the BIA,
and if the BIA orders his removal after considering those
arguments, the alien need not ask the BIA to reconsider
its decision before he may petition a court for review.
Goonsuwan, 252 F.3d at 388 (“The appropriate inquiry
is not whether [the alien] filed a motion to reopen, but
rather whether he presented to the BIA the issue . . .
raised in his habeas petition, thus exhausting his adminis-
trative remedies as to that issue.”) (emphasis in original).
  The material point here is that the BIA’s original
removal order was reviewed and affirmed by this court
and Padilla never presented the new issue of his vacated
convictions to the BIA. Because the BIA has never been
asked to determine the effect of the state court’s order on
Padilla’s order of removal, there is no agency decision on
this issue for us to review. Because the BIA could have
reopened his case at any time and amended or rescinded
its removal order, Padilla did not exhaust his administra-
10                                                 No. 05-2697

tive remedies, and we lack jurisdiction to consider his
arguments. Goonsuwan, 252 F.3d at 388. See also
Panjwani, 401 F.3d at 632; Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001) (alien failed to exhaust administra-
tive remedies where, even though he filed an un-
timely motion to reopen, he did not specifically ask the BIA
to exercise its authority to reopen his case sua sponte);
Luis v. INS, 196 F.3d 36, 40 (1st Cir. 1999) (same).4
  In light of the provisions of the REAL ID Act, we con-
sider the district court’s habeas ruling a nullity and
construe Padilla’s habeas appeal as a petition for review.
We lack jurisdiction to consider Padilla’s argument about
the effect of the state court’s vacatur order because he
never presented it to the BIA. Accordingly, the petition
for review is DISMISSED.

A true Copy:
       Teste:

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




4
  The only other case Padilla cites on the exhaustion issue,
Sewak v. INS, 900 F.2d 667 (3d Cir. 1990), is inapplicable
because it dealt with an alien who, unlike Padilla, raised his
arguments with the BIA before petitioning the court for review.
Id. at 670 (“Sewak raised before the BIA, and the BIA considered,
the same issues he raises in his petition for review in this
court.”).


                    USCA-02-C-0072—12-7-06
