United States v. Eleazar Hernandez-Perdomo ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1964
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELEAZAR HERNANDEZ-PERDOMO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cr-744 — Elaine E. Bucklo, Judge.
____________________
No. 19-2113
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ISMAEL RANGEL-RODRIGUEZ
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cr-581 – Matthew F. Kennelly, Judge.
____________________
2 Nos. 19-1964 & 19-2113
ARGUED DECEMBER 6, 2019 — DECIDED JANUARY 23, 2020
____________________
Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Ismael Rangel-Rodriguez and
Eleazar Hernandez-Perdomo are both Mexican citizens who
have never been lawfully admitted to the United States. Sev-
eral years ago, immigration authorities served both of them
with Notices to Appear (“NTA”) for removal proceedings.
These NTAs—like many—were defective because they did
not list a date or time for an initial removal hearing. For dif-
ferent reasons, Rangel and Hernandez were not present at
their respective removal hearings, and the immigration
judges ordered them removed in absentia. United States Immi-
gration and Customs Enforcement (“ICE”) eventually en-
forced these orders and removed both men to Mexico, but
they each illegally returned to the United States and were in-
dicted for illegal reentry in violation of 8 U.S.C. § 1326(a). In
light of the Supreme Court’s decision in Pereira v. Sessions, 138
S. Ct. 2105 (2018), they moved to dismiss their respective in-
dictments by collaterally attacking their underlying removal
orders under 8 U.S.C. § 1326(d) based on the defective NTAs.
The district courts denied their motions, and each defendant
entered a conditional plea of guilty to the illegal reentry
charge and reserved his right to appeal the denial of the mo-
tion to dismiss the indictment. We have consolidated the cases
for decision.
We conclude that Rangel and Hernandez have failed to
demonstrate that they satisfy any of the requirements set out
in § 1326(d). We therefore affirm the judgments.
Nos. 19-1964 & 19-2113 3
I. Background
A. Ismael Rangel-Rodriguez
In November 2010, police arrested Rangel for driving on a
suspended license and several other offenses. The govern-
ment served him that same day with an NTA announcing re-
moval proceedings. This NTA ordered Rangel to appear be-
fore an immigration judge on “a date to be set at a time to be
set.” Rangel ultimately learned the date and time of his up-
coming hearings, though, because he appeared at three hear-
ings via video conference in late winter and early spring of
2011, while he was in ICE custody. Around March of 2011,
Rangel was released on bond. In January of 2012, however,
Rangel was arrested for driving under the influence and taken
into custody. His next hearing took place on February 22,
2012. Because Rangel remained in state custody, he did not
attend this hearing and the immigration judge entered an or-
der of removal in absentia. The record does not reveal whether
Rangel ever knew of this particular hearing date.
On September 5, 2013, following a conviction on his DUI
charge and a year in state prison, Rangel was released to ICE
custody. The next day, an ICE officer wrote in Rangel’s alien-
registration file that Rangel did not wish to reopen his case.
Although the alien-registration file entry states that Rangel re-
ceived a “free legal aid list,” the record does not reveal the
extent to which Rangel was informed of his right to reopen.
ICE removed Rangel from the United States on September 24,
2013, and Rangel reentered two days later. On October 2, ICE
reinstated Rangel’s removal order and removed him from the
United States a second time on March 29, 2014.
4 Nos. 19-1964 & 19-2113
At some point following his second removal, Rangel reen-
tered the United States a third time. Chicago Police arrested
him in August of 2018, and a grand jury then indicted him on
one count of illegal reentry under 8 U.S.C. § 1326(a). Rangel
filed a motion to dismiss the indictment, which the district
court denied. Following Rangel’s entry of a conditional plea
of guilty, the district court sentenced Rangel to 23 months’ im-
prisonment.
B. Eleazar Hernandez-Perdomo
Hernandez tells a similar story. In 2010, ICE took him into
custody and personally served him with an NTA that, like
Rangel’s, omitted the date and time of his first hearing before
an immigration judge. This NTA correctly reflected Hernan-
dez’s address at that time—on Sheridan Road in Highwood,
Illinois.
Later that same day, Hernandez was released from ICE
custody on his own recognizance. His Order of Release di-
rected him to report in person to an immigration officer on
September 7, 2010. The Order of Release further instructed:
“You must not change your place of residence without first
securing written permission from the immigration officer
listed above.”
On August 6, 2010, the Executive Office for Immigration
Review (“EOIR”) sent to Hernandez’s Sheridan Road address
a Notice of Hearing in Removal Proceedings to remedy the
lack of date and time information in the initial NTA. This No-
tice set his hearing for January 3, 2012. Hernandez, however,
never received this Notice because he had moved to a new
apartment. Consequently, the Notice was returned to EOIR as
undeliverable. Hernandez asserts that, on September 7, 2010,
Nos. 19-1964 & 19-2113 5
he reported to the immigration officer as required, and at that
time he completed and returned to the officer a change-of-ad-
dress form identifying his new address on Onwentsia Avenue
in Highland Park, Illinois.
On January 27, 2011, the EOIR sent Hernandez another
Notice of Hearing, this one moving up proceedings by ten
months, to March 2, 2011. Despite Hernandez’s claimed sub-
mission of his change-of-address form, the EOIR sent this No-
tice of Hearing to his outdated, Sheridan Road address. As
with the prior Notice, it was returned as undeliverable.
Because he was unaware of the March 2 hearing, Hernan-
dez did not appear. The immigration judge conducted the re-
moval hearing in absentia and ordered him removed. Three
months later, ICE agents arrested Hernandez at his Onwent-
sia address. ICE removed him eight days after his arrest.
As with Rangel, Hernandez’s alien-registration file entry
states that Hernandez received a “free legal aid list,” but the
record does not reveal the extent to which Hernandez was in-
formed of his right to reopen. Unlike in Rangel’s case, the al-
ien-registration file does not comment on Hernandez’s desire,
or lack thereof, to reopen the proceedings against him.
In 2018, Hernandez was transferred back into ICE custody
after being identified during a traffic stop. A grand jury in-
dicted him on one count of illegal reentry. Like Rangel, Her-
nandez filed a motion to dismiss the indictment, which the
district court denied. Hernandez entered a conditional plea of
guilty, and the district court sentenced Hernandez to time
served plus one year of supervised release.
6 Nos. 19-1964 & 19-2113
II. Discussion
We review de novo a district court’s denial of a defend-
ant’s motion to dismiss an indictment. United States v. Arita-
Campos, 607 F.3d 487, 491 (7th Cir. 2010). As Rangel’s and Her-
nandez’s appeals raise identical legal issues challenging the
district courts’ decisions to deny their motions to dismiss, we
analyze the arguments they submit together.
8 U.S.C. § 1326 makes it a crime for a removed noncitizen
to reenter, or attempt to reenter, the United States without the
consent of the Attorney General. In United States v. Mendoza-
Lopez, 481 U.S. 828 (1987), the Supreme Court held that a de-
fendant charged under this statute has a due process right to
challenge the underlying order of removal. In 1996, Congress
amended the statute to codify the holding of Mendoza-Lopez
by adding subsection (d), which imposes three requirements
on an alien seeking to challenge the validity of his or her un-
derlying removal order. The alien must have “exhausted any
administrative remedies that may have been available to seek
relief against the order,” the removal proceedings must have
“improperly deprived the alien of the opportunity for judicial
review,” and the entry of the removal order must be “funda-
mentally unfair.” 8 U.S.C. § 1326(d)(1)–(3). The alien bears the
burden of proving the underlying removal order was defec-
tive. United States v. Baptist, 759 F.3d 690, 695 (7th Cir. 2014).
Although we have never expressly stated that an alien must
satisfy all three elements of § 1326(d) to collaterally attack his
or her removal order, we have implied that this is so. United
States v. Alegria-Saldana, 750 F.3d 638, 641 (7th Cir. 2014). We
need not decide this issue today, though, because Rangel and
Hernandez have failed to satisfy any of the three elements.
Nos. 19-1964 & 19-2113 7
Rangel and Hernandez base their challenges on the Su-
preme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105(2018). The Pereira Court addressed the “narrow question”
whether an NTA that omits the time or place of an alien’s re-
moval hearing triggers the stop-time rule of the Illegal Immi-
gration Reform and Immigrant Responsibility Act, thus ter-
minating the period of continuous physical presence in the
United States necessary for an alien to be eligible for discre-
tionary cancellation of removal. Id. at 2110. The Court ruled
that it did not because the missing information prevents an
NTA from satisfying the statutory definition in 8 U.S.C.
§ 1229(a). Id. at 2113–14. Like many other litigants, Rangel and
Hernandez both argued at the district court that a deficient
NTA deprived an immigration court of jurisdiction, and thus
their removal enters were void and could not support their
respective convictions for illegal reentry. We rejected this ju-
risdictional argument, however, in Ortiz-Santiago v. Barr, 924
F.3d 956 (7th Cir. 2019), where we held that an NTA’s failure
to comply with § 1229(a) was a claim-processing rule subject
to waiver and forfeiture. Id. at 963. Defendants thus abandon
their jurisdictional arguments on appeal. Instead, they now
argue that, because they received deficient NTAs, they meet
the statutory and constitutional requirements for a collateral
attack of their prior orders of removal under 8 U.S.C.
§ 1326(d).
A. Exhaustion & Judicial Review
Rangel and Hernandez contend they have exhausted their
available administrative remedies, or should be excused from
this requirement, because their challenges would have been
futile at the time of their removal proceedings, as the Board of
Immigration Appeals and every court to consider the
8 Nos. 19-1964 & 19-2113
question had previously condoned the “two-step procedure”
to remedy deficient NTAs. See, e.g., Dababneh v. Gonzales, 471
F.3d 806, 809–10 (7th Cir. 2006) (allowing this procedure).
Even assuming that a futility exception applies to immigra-
tion exhaustion requirements, though, Pereira did not change
the administrative remedies available to Rangel and Hernan-
dez after the immigration judges ordered them removed in
absentia. The solution for both defendants was the same: they
both could have moved to reopen their removal proceedings
as soon as they became aware of their respective removal or-
ders, likely when they were taken into ICE custody for phys-
ical removal. Neither did so.
We have held that a motion to reopen is an “available” ad-
ministrative remedy for purposes of § 1326(d)(1). Arita-Cam-
pos, 607 F.3d at 492. Ordinarily, an alien must file a motion to
reopen within ninety days of the entry of a final decision. 8
U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(1). But if the un-
derlying order was entered in absentia because the alien was
in custody at the time of his hearing—as in Rangel’s case—or
he did not receive notice of the proceedings—as in Hernan-
dez’s—then the alien may instead move to reopen that re-
moval order “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii); Arita-
Campos, 607 F.3d at 492. Likewise, if Hernandez and Rangel
had filed motions to reopen, they could have obtained judicial
review of the denial of those motions or of the final removal
orders entered after a proper hearing. They were thus not
“improperly deprived” of judicial review, 8 U.S.C.
§ 1326(d)(2), they just never sought it. See United States v. Lar-
ios-Buentello, 807 F.3d 176, 178 (7th Cir. 2015).
Rangel and Hernandez argue that the government failed
to notify them of the option of a motion to reopen, but “aliens
Nos. 19-1964 & 19-2113 9
are presumed capable of researching generally available rem-
edies.” Alegria-Saldana, 750 F.3d at 641. They attempt to dis-
tinguish Alegria-Saldana because, there, immigration authori-
ties undisputedly informed the alien of his right to appeal. See
id. One cannot read our decision in Alegria-Saldana as so lim-
ited: we also explained the alien had not exhausted his oppor-
tunity to file a motion to reopen or to seek habeas relief, with
no indication that authorities ever informed the alien of these
remedies. Id. Defendants also try to cabin the reach of our rul-
ing in Alegria-Saldana by arguing that the immigration judge
may permissibly forgo providing guidance only about the
availability of a separate habeas suit. This attempt, though,
does not persuade us. Surely, a lay person would have a far
easier time understanding the explicit statutory provision for
reopening an in absentia order through § 1229a(b)(5) than the
habeas corpus remedy under 28 U.S.C. § 2241 and the com-
mon law, INS v. St. Cyr, 533 U.S. 289 (2001). Alegria-Saldana
does not suggest that an immigration judge has a duty to in-
form an alien of direct remedies but not more obscure, collat-
eral ones.
Rangel and Hernandez also contend this interpretation of
Alegria-Saldana contradicts rulings of the Second and Third
Circuits, which have held that the government violates the
Due Process Clause by misleading an alien into believing he
has no opportunity for judicial review. See United States v.
Charleswell, 456 F.3d 347 (3d Cir. 2006); United States v. Lopez,
445 F.3d 90 (2d Cir. 2006) (Sotomayor, J.). As neither defend-
ant presented this argument to the district court or in their
opening briefs, they have both waived it. See United States v.
Dehaan, 896 F.3d 798, 808 n.4 (7th Cir. 2018).
10 Nos. 19-1964 & 19-2113
Even if it were not waived, though, these cases are inap-
posite to the circumstances presented here. In Charleswell and
Lopez, the government did not merely fail to notify the de-
fendants of their opportunities for judicial review, but rather
presented affirmative, misleading (albeit technically correct)
statements. In Charleswell, a reinstatement order read, “You
may contest this determination by making a written or oral
statement to an immigration officer. You do not have a right
to a hearing before an immigration judge.” 456 F.3d at 356. An
alien does, however, have a statutory right to direct judicial
review in the appropriate court of appeals pursuant to 8
U.S.C. § 1252(a)(5). Id. at 357. Similarly, in Lopez, the govern-
ment told an alien he was not eligible for review by the Board
of Immigration Appeals under § 212(c) of the Immigration
and Naturalization Act, even though that relief was still avail-
able through a petition for habeas corpus. 445 F.3d at 92–93.
In both these cases, the government informed aliens that cer-
tain relief was unavailable, when in fact is was available
through a different avenue. These statements excluding forms
of relief, the courts reasoned, mislead an alien to believe that
he has no opportunity for judicial review. Charleswell, 456 F.3d
at 357; Lopez, 445 F.3d at 99–100. Indeed, such “affirmative
misstatements” are more problematic than omissions because
they “function[] as a deterrent to seeking relief.” Charleswell,
456 F.3d at 357 (quoting Lopez, 445 F.3d at 99).
Rangel and Hernandez argue that their NTAs misled them
by saying they could seek review “at the conclusion of [their]
hearing[s],” without also listing other available options for re-
lief, such as a motion to reopen. Thus, although the statement
on their NTAs was factually accurate, the defendants argue
that they were misled to believe that they could no longer con-
test their removal orders because they were not present at
Nos. 19-1964 & 19-2113 11
their hearings and missed their opportunity. The NTAs,
though, did not list any restrictions on an alien’s access to re-
lief: they merely failed to state all of the possible options. Nei-
ther the Second nor Third Circuit have found the lack of full
disclosure sufficient to collaterally attack a removal order, see
Charleswell, 456 F.3d at 355–56 (reserving question); Lopez, 445
F.3d at 96 (rejecting argument), and therefore our interpreta-
tion of Alegria-Saldana is not inconsistent.
The defendants also argue that their time in ICE custody
was so brief—Rangel spent 19 days there after the entry of his
removal order, and Hernandez, only 8—that filing a motion
to reopen was not feasible. True, in Arita-Campos, the Court
deemed 39 days in custody, a period significantly longer than
the time either defendant spent in this case, sufficient time to
file a motion to reopen. 607 F.3d at 492. Other circuits, though,
have held that the short time the defendants spent was
enough. See United States v. Hinojosa-Perez, 206 F.3d 832, 836
(9th Cir. 2000) (deeming 8 days sufficient time to file a motion
to reopen).
In any event, the number of days in custody is irrelevant
because an alien may file a motion to reopen “at any time.” 8
U.S.C. § 1229a(b)(5)(C)(ii). The parties dispute how far that
language goes. The government argues that the language “at
any time” in § 1229a(b)(5)(C)(ii) means what it says—“at any
time.” Under that literal interpretation, the government ar-
gues that Rangel and Hernandez could have filed a motion on
the day of oral argument. Defendants, on the other hand, ar-
gue that they were permitted to file their motions to reopen
only until their orders of removal were reinstated, citing to 8
U.S.C. § 1231(a)(5). We need not resolve the precise time when
a motion to reopen becomes unavailable, however, because
12 Nos. 19-1964 & 19-2113
our case law makes clear that Rangel and Hernandez may
have moved to reopen at least until the time they reentered
the country, including while they were in Mexico after their
removals. See Cordova-Soto v. Holder, 732 F.3d 789, 794–95 (7th
Cir. 2013). Rangel and Hernandez thus had a sufficient
amount of time to file a motion to reopen, and the fact that
they both were only in ICE custody for a brief time has no
bearing on whether the motion to reopen was available to
them.
B. Fundamental Unfairness
Rangel and Hernandez argue that their removal proceed-
ings were fundamentally unfair for purposes of 8 U.S.C.
§ 1326(d)(3) because of their deficient NTAs. To establish fun-
damental unfairness, we have required a defendant to show
the removal proceedings (1) violated the alien’s due process
rights, and (2) caused the alien to suffer prejudice. Arita-Cam-
pos, 607 F.3d at 493. To satisfy both prongs of this analysis, an
alien must demonstrate that he or she was entitled to non-dis-
cretionary relief from removal. See id. We have held that aliens
have no liberty interest in discretionary relief, and there can
be no prejudice unless “judicial review ‘would have yielded
him relief from deportation.’” Id. (quoting United States v. De
Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008)).
Defendants assert that, under this court’s decision in
Ortiz-Santiago, the immigration judge would have been obli-
gated to quash their NTAs, and this qualifies as mandatory
relief from removal. In Ortiz-Santiago, we did recognize the
commonly-utilized “two-step procedure” of sending a defi-
cient NTA and later remedying it “may be grounds for dis-
missal of the case.” Ortiz-Santiago, 924 F.3d at 962–63. We also
said, though, that this is a “curable lapse.” Id. at 965. “If Ortiz-
Nos. 19-1964 & 19-2113 13
Santiago had raised a prompt objection to the Notice …. [a]
new, compliant Notice could have issued, and the case could
have proceeded.” Id. Catching the errors in the deficient
NTAs would not have led to non-discretionary relief from re-
moval in either Hernandez’s or Rangel’s respective cases. Ra-
ther, if Hernandez or Rodriguez were to have alerted the im-
migration court of the NTA’s omissions, ICE could have pro-
ceeded with removal by simply serving a new, compliant
NTA. As both of the defendants have failed to identify any
other non-discretionary relief for which they would have
been eligible had they received a compliant NTA,1 they have
failed to demonstrate that the removal proceedings were fun-
damentally unfair.
III. Conclusion
For the foregoing reasons, we AFFIRM the district courts’
judgments.
1 Hernandez offers, in a footnote, that he might have been eligible for
voluntary departure, but rightly recognizes that denial of this discretion-
ary relief is not enough to prove that removal proceedings were “funda-
mentally unfair” under § 1326(d)(3). See Arita-Campos, 607 F.3d at 493.