United States v. Edmundo Manriquez-Alvarado ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2521
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDMUNDO MANRIQUEZ-ALVARADO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 18-20045-001 — James E. Shadid, Judge.
____________________
ARGUED MARCH 3, 2020 — DECIDED MARCH 24, 2020
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. Edmundo Manriquez-
Alvarado, a citizen of Mexico, has entered the United States
repeatedly by stealth. How often we do not know, but the
record shows that he was ordered removed in 2008, 2010,
2012, 2014, and 2017, each time following a criminal convic-
tion. (His record includes convictions for burglary, domestic
violence, trafficking illegal drugs, and unauthorized
reentry.) The gaps between the removal orders stem from
2 No. 19-2521
the time it takes to catch him, plus time he spends in prison
following his convictions.
Manriquez-Alvarado was found in the United States yet
again in 2018 and indicted for illegal reentry. 8 U.S.C.
§1326(a), (b)(2). His drug crime is defined by 8 U.S.C.
§1101(a)(43)(B) as an “aggravated felony”. This increases the
maximum punishment for unauthorized reentry. After the
district court denied his motion to dismiss the indictment,
Manriquez-Alvarado pleaded guilty and was sentenced to 39
months’ imprisonment. The plea reserved the right to con-
test on appeal the denial of the motion to dismiss.
All of the convictions for reentry rest on the 2008 removal
order. Manriquez-Alvarado contends that this order is inva-
lid because immigration officials never had “jurisdiction” to
remove him. That’s because a document captioned “Notice
to Appear” that was served on him in February 2008 did not
include a date for a hearing. Pereira v. Sessions, 138 S. Ct. 2105(2018), holds that a document missing this information does
not satisfy the statutory requirements, 8 U.S.C. §1229(a)(1),
for a Notice to Appear. We held in Ortiz-Santiago v. Barr, 924
F.3d 956 (7th Cir. 2019), that Pereira identifies a claims-
processing doctrine rather than a rule limiting the jurisdic-
tion of immigration officials. Manriquez-Alvarado wants us
to overrule Ortiz-Santiago, but that’s not in the cards. No
other circuit has disagreed with its holding, and its reason-
ing is powerful.
That’s not all. Manriquez-Alvarado supposes that, if Pe-
reira establishes a jurisdictional rule, then any earlier remov-
al decision is void. Established law is otherwise. Lawyers
have it drilled into them that jurisdictional deficiencies may
be raised at any time. What this means, however, is any time
No. 19-2521 3
during the litigation to which the problem applies. Suppose
a suit is filed in which the plaintiff alleges the parties’ “resi-
dence” rather than their “citizenship.” That is a jurisdictional
defect. E.g., Gilbert v. David, 235 U.S. 561 (1915); Steigleder v.
McQuesten, 198 U.S. 141 (1905); Denny v. Pironi, 141 U.S. 121(1891); Robertson v. Cease, 97 U.S. 646 (1878). But if the prob-
lem escapes notice, and the case goes to judgment on the
merits, the result is conclusive; the decision cannot be collat-
erally akacked on the ground that the jurisdictional allega-
tions were defective. See, e.g., Travelers Indemnity Co. v. Bai-
ley, 557 U.S. 137, 152–53 (2009). This principle is equally ap-
plicable to administrative decisions—after all, agencies op-
erate outside Article III, which is the source of judges’ punc-
tiliousness about their own jurisdiction—which means that
the 2008 removal order could not be set aside even if we
were to overrule Ortiz-Santiago.
Older removal orders are potentially open to collateral
akack, but not because a defect in a long-closed proceeding
could be called “jurisdictional.” To mount a belated chal-
lenge the alien must show:
(1) the alien exhausted any administrative remedies that may
have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial re-
view; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. §1326(d). This statute requires the alien to show all
three; one or two won’t suffice. See United States v. Hernan-
dez-Perdomo, 948 F.3d 807, 810–11 (7th Cir. 2020); United
States v. Watkins, 880 F.3d 1221, 1224 (11th Cir. 2018); United
States v. Estrada, 876 F.3d 885, 887 (6th Cir. 2017); United
4 No. 19-2521
States v. Lopez-Collazo, 824 F.3d 453, 458 (4th Cir. 2016); Unit-
ed States v. Soto-Mateo, 799 F.3d 117, 120 (1st Cir. 2015); Unit-
ed States v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015);
United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir.
2014); United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004);
United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.
2002).
The removal proceedings in 2008 charged Manriquez-
Alvarado with being in the United States without authoriza-
tion, having commiked a crime of moral turpitude that cut
off avenues for discretionary relief. He could have contested
those charges, taking his arguments to the Board of Immi-
gration Appeals (§1326(d)(1)) and the court of appeals
(§1326(d)(2)). Likewise he could have argued that the Notice
to Appear did not satisfy the statute, pursuing both adminis-
trative and judicial relief. He did none of those things. In-
stead he stipulated to his removal and waived his rights to a
hearing, to administrative review, and to judicial review.
The agency did not issue a new notice with a hearing date,
because Manriquez-Alvarado did not want a hearing. After
signing this waiver he was removed.
Now he tells us that it would have been futile to pursue
administrative and judicial remedies in 2008. In a sense this
is irrefutable: once he waived his procedural rights and
agreed to be removed, of course it would have been futile to
continue resisting. But the remedies were nonetheless
“available” to Manriquez-Alvarado, had he decided to stand
on his rights. That Manriquez-Alvarado waived those rights
makes the 2008 order less amenable to collateral akack and
not more, as he supposes.
No. 19-2521 5
Manriquez-Alvarado asserts that seeking review would
have been futile in a second sense: Pereira was not decided
until 2018, so he could not have relied on it in 2008. Once
again this is irrefutable, but Pereira interpreted a statute that
long predates 2008. Manriquez-Alvarado was free to rely on
that statute. If the agency and court ruled against him, the
relevant decision by the Supreme Court might have carried
his name rather than Pereira’s. Most likely, however, if he
had complained that the Notice omiked a hearing date, the
agency would have issued another with the blank filled in.
That would have made an appeal “futile” in the sense that it
would have done nothing but postpone the inevitable (Man-
riquez-Alvarado does not contend that he had any substan-
tive defense to removal), but it would have protected all of
his procedural entitlements.
The statute does not ask whether administrative and ju-
dicial remedies would have been futile. It asks whether they
were available. The best way to determine whether a remedy
works is to use it and see what happens, rather than to by-
pass it and speculate years later about what might have
happened. One might say that a remedy is not “available” if
it is sure to be ukerly useless, but as we’ve explained Man-
riquez-Alvarado could have used his remedies to seek a No-
tice to Appear with a hearing date, and if one were not forth-
coming to present his arguments to the Board, to this court,
and to the Supreme Court. That opportunity is all the statute
requires to make a remedy “available”; the condition is sat-
isfied whether or not the alien would have prevailed. See
Bousley v. United States, 523 U.S. 614, 622–23 (1998) (adverse
precedent in the local court of appeals does not excuse fail-
ure to present an argument unless the claim was so novel
that counsel could not have imagined it). Cf. Porter v. Nussle,
6 No. 19-2521
534 U.S. 516 (2002) (an administrative remedy is “available”
for the purpose of a different exhaustion rule if it offers the
prospect of any relief, even if not the remedy the applicant
wants).
Much the same may be said about Manriquez-Alvarado’s
contention that the removal order was “fundamentally un-
fair”. He asserts that because he waived his rights without
knowing about Pereira, which lay a decade in the future, the
waiver was necessarily involuntary. To repeat: Pereira is a
statutory decision, and Manriquez-Alvarado could have
consulted the statute and invoked its benefit, small as that
was. (Recall that the only effect of securing a complete No-
tice to Appear would have been a slight delay in removal.)
We held in Ortiz-Santiago, 924 F.3d at 964–65, that the statute
creates a procedural right that is lost if not asserted or the
failure excused, and we applied that rule to an alien whose
removal order predated Pereira. If that did not produce a
fundamentally unfair outcome for Ortiz-Santiago, it does not
produce one for Manriquez-Alvarado either. His removal
was the result of his criminal conduct, coupled with the fact
that he lacked permission to enter the United States at all. He
has never asserted a legitimate claim of entitlement to be in
the United States. It is not unfair, fundamentally or other-
wise, to order such an alien to depart.
AFFIRMED