United States v. Nicolas Alegria-Saldana , 750 F.3d 638 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1607
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICOLAS ALEGRIA-SALDANA,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 11 CR 50065-1 — Frederick J. Kapala, Judge.
ARGUED SEPTEMBER 16, 2013 — DECIDED APRIL 17, 2014
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Nicolas Alegria-Saldana, a citizen of
Mexico, challenges the district court’s denial of his motion to
dismiss his indictment for illegal reentry after removal. See 8
U.S.C. § 1326(a), (b)(1). He entered a conditional guilty plea
but maintains that the charges should be dismissed based on
alleged due-process violations in the underlying removal
order. Because Alegria-Saldana has not met the statutory
2 No. 13-1607
requirements to collaterally attack his removal order, 8 U.S.C.
§ 1326(d), we affirm the district court’s judgment.
Alegria-Saldana entered the United States at the age of 7,
became a lawful permanent resident at 20, but was charged
with removability at 34—in 2003—by immigration authorities
for committing an aggravated felony, see 8 U.S.C.
§ 1227(a)(2)(A)(ii), and a controlled-substance offense, see id.§ 1227(a)(2)(B)(i). During removal proceedings, he conceded
that his two convictions for possessing cocaine involved a
controlled substance. But his lawyer argued that mere
possession was not a drug-trafficking crime, and thus not an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining
“aggravated felony” as “illicit trafficking in a controlled
substance”). The distinction mattered because an aggravated
felony determination would render him statutorily ineligible
for discretionary relief. See 8 U.S.C. § 1229b(a)(3). Based on
precedent from the Board of Immigration Appeals, the
immigration judge ruled that Alegria-Saldana’s conviction for
cocaine possession was an aggravated felony, and denied his
application for cancellation of removal. See 720 ILCS 570/402(c)
(defining cocaine possession as felony under state law);
In re Yanez-Garcia, 23 I & N Dec. 390, 398 (BIA 2002)
(characterizing state felony convictions for drug possession as
aggravated felonies). Alegria-Saldana did not appeal that
decision, and he was removed to Mexico two months later.
The agency precedent on which the immigration judge
relied was overturned three years later when the Supreme
Court ruled that mere possession was not an aggravated felony
under immigration law. Lopez v. Gonzales, 549 U.S. 47, 60
(2006); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th
No. 13-1607 3
Cir. 2006) (Illinois felony conviction for possessing cocaine did
not bar lawful permanent resident from seeking discretionary
relief). By then Alegria-Saldana had reentered the United
States illegally, and he was again convicted in Illinois of
possessing cocaine. State authorities turned him over to
immigration officials after his release in 2011.
Alegria-Saldana was charged with illegal presence in the
United States after removal, see 8 U.S.C. § 1326(a), (b)(1), but he
sought to dismiss the indictment based on alleged deficiencies
in the underlying removal order, see id. § 1326(d). Under
§ 1326(d), a defendant may collaterally attack the removal
order in a criminal proceeding by showing (1) exhaustion of
administrative remedies, (2) unavailability of judicial review
during the removal process, and (3) fundamental unfairness of
the removal order. See id. § 1326(d)(1)–(3).
Alegria-Saldana maintained that he satisfied these three
requirements. He pointed first to his lawyer’s alleged
deficiencies, and explained in an affidavit that he believed his
lawyer would file an appeal. He noted that his lawyer reserved
his right to appeal and pointed out that the immigration judge
discussed his lawyer’s role in the appeal process, stating that
“[y]our lawyer has 30 days to decide if an appeal will be
perfected or not, and you could decide that any time between
the next 30 days.” Second, Alegria-Saldana argued that he
lacked “any understanding or particular knowledge of the
law” and did not have the ability to file an appeal on his own.
Finally, he challenged the fairness of the removal order in light
of the Supreme Court’s later decision in Lopez, 549 U.S. at 60.
4 No. 13-1607
The district court denied Alegria-Saldana’s motion to
dismiss the indictment, finding that he had not met any of the
§ 1326(d) requirements to challenge the underlying removal
order. First, Alegria-Saldana failed to exhaust his
administrative remedies because he neither appealed the
decision nor asked his attorney to do so. To the extent that he
suggested that his immigration lawyer provided ineffective
assistance, the court noted that his lawyer never promised to
file an appeal. Second, Alegria-Saldana did not take advantage
of the form of judicial review available at the time of his
removal proceedings—habeas corpus relief—and he did not
justify why he failed to file a petition other than asserting his
general lack of legal knowledge. And third, he could not show
that the removal order was fundamentally unfair because he
had no due-process right to apply for discretionary relief.
On appeal Alegria-Saldana challenges the district court’s
decision with respect to all three requirements of § 1326(d). We
have not decided whether all three must be met before a
collateral attack can proceed, though we have implied that is
the case. See United States v. Lara-Unzueta, 735 F.3d 954, 961 (7th
Cir. 2013) (declining to decide issue).
As to the first requirement, Alegria-Saldana argues that the
district court erred in ruling that he failed to exhaust his
administrative remedies, given his belief that his immigration
lawyer would file an appeal. He maintains that he was
“entitled to interpret that reservation [of the right to appeal] by
counsel as meaning that his attorney would either follow
through on the perfection of the appeal or advise
[Alegria-Saldana] of his decision not to follow through.”
No. 13-1607 5
But the district court’s finding regarding exhaustion is
correct. Despite being informed of his right to appeal, he did
not file an appeal or ask his lawyer to do so, and thus he failed
to exhaust his available remedies. See United States v.
Roque-Espinoza, 338 F.3d 724, 728–29 (7th Cir. 2003) (alien may
not collaterally attack removal order when “he and his lawyer
were informed of his right to pursue such an [administrative]
appeal” and his lawyer reserved right to appeal); United States
v. Villavicencio-Burruel, 608 F.3d 556, 559–60 (9th Cir. 2010)
(same). Nor did Alegria-Saldana exhaust his available
remedies in the form of a motion to reopen, see 8 U.S.C. §
1229a(c)(7); United States v. Arita-Campos, 607 F.3d 487, 491–92
(7th Cir. 2010), which would have allowed the Board to
consider whether his lawyer was ineffective for not
communicating with him after the removal hearing, see In re
Lozada, 19 I & N Dec. 637, 639 (BIA 1988) (setting out
requirements to bring ineffective-assistance claim in
immigration proceedings); see also United States v. Cerna, 603
F.3d 32, 42 (2d Cir. 2010) (excusing lack of exhaustion when
lawyer promised to file an appeal during removal hearing and
failed to do so).
Second Alegria-Saldana argues generally that the district
court erred in concluding that judicial review was available in
the form of a petition for habeas corpus. He concedes that
judicial review existed “in theory” but asserts that it was
unavailable “as a practical matter” because, between the entry
of his removal order and his actual removal, he had only two
months to research the law or find a new lawyer.
The district court correctly determined that Alegria-Saldana
did not meet his burden of proving that he was unable to
6 No. 13-1607
petition for judicial relief. See Arita-Campos, 607 F.3d at 493;
United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir.
2006). The court here concluded that he failed to meet this
burden because he offered no explanation other than that he
lacked “any understanding or particular knowledge of the
law.” As the court noted, aliens are presumed capable of
researching generally available remedies, see Bayo v. Napolitano,
593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574,
578 (7th Cir. 2001) (“In immigration law, as in tax law—and
criminal law, too, where knowledge of the law is
presumed—the Constitution permits the government to leave
people to their own research.”) (internal citation omitted), and
Alegria-Saldana offers no other reason to think that two
months was not enough time to file a petition for habeas
corpus, see Arita-Campos, 607 F.3d at 492 (39 days between
arrest and removal was sufficient time for alien to file motion
to reopen).
Finally Alegria-Saldana argues that the district court should
have ruled that his removal order was fundamentally unfair
because the incorrect aggravated-felony determination
deprived him of the opportunity to apply for discretionary
relief. But, as the court noted, failure to consider an alien for
discretionary relief does not violate due process and thus is not
fundamentally unfair. See Arita-Campos, 607 F.3d at 493; United
States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008);
Santiago-Ochoa, 447 F.3d at 1020 (collecting cases from other
circuits). A minority of circuits do recognize a procedural due-
process right to seek discretionary relief, but even these courts
consider whether the immigration judge erred “under the
governing case law at the time of [removal],” United States v.
No. 13-1607 7
Gomez, 732 F.3d 971, 987 (9th Cir. 2013), and require aliens to
show prejudice in the form of a “reasonable probability” that
they would have received relief, see United States v. Daley, 702
F.3d 96, 101 (2d Cir. 2012). Alegria-Saldana’s removal order
relied on agency precedent, see In re Yanez-Garcia, 23 I & N Dec.
at 398, and he has not attempted to show any likelihood that
the Board of Immigration Appeals—after considering his two
convictions for drunk driving, two convictions for cocaine
possession, and a conviction for domestic battery—would have
exercised its discretion in his favor. See In re Sotelo-Sotelo, 23
I&N Dec. 201, 205–06 (BIA 2001) (discretionary relief not
warranted for lawful permanent resident with U.S.-citizen
child who had smuggled aliens into United States). Though
Alegria-Saldana was unable to seek cancellation of removal,
the Supreme Court’s decision in Lopez did reduce the potential
punishment for his illegal reentry: because his convictions are
no longer aggravated felonies, the statutory maximum was
10 years instead of 20. See 8 U.S.C. § 1326(b)(1)–(2).
AFFIRMED.