United States v. Martin Ocampo-Gomez ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 8, 2021 *
Decided July 9, 2021
Before
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 20-2890
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 19-20043-01
MARTIN OCAMPO-GOMEZ, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Martin Ocampo-Gomez, a Mexican citizen, conditionally pleaded guilty to re-
entering the United States illegally, see 8 U.S.C. § 1326(a), (b)(2), preserving the right to
appeal the denial of his motion to dismiss his indictment. In his motion and on appeal,
he seeks to attack collaterally the order to remove him from the country, arguing that
the order was invalid because his notice to appear at a removal hearing omitted the date
* Based on Ocampo-Gomez’s unopposed motion to waive oral argument, we
have agreed to decide this case without oral argument because the briefs and record
adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 20-2890 Page 2
and time for his hearing. Because circuit precedent forecloses Ocampo-Gomez from
collaterally attacking his removal order on this ground, we affirm.
After Ocampo-Gomez illegally entered the United States, he was arrested for
felony driving under the influence of alcohol with a revoked license in 2005. He later
received a notice to appear at an immigration hearing. The notice did not state the time
or place of the hearing. Ocampo-Gomez later learned of the hearing time and place and
both appeared at the hearing and fully participated. But he did not object to the notice
defect, and an immigration judge ordered Ocampo-Gomez’s removal in April 2006.
Ocampo-Gomez later returned to the United States, but he was removed twice more, in
2013 and in 2018.
After he re-entered the United States most recently, a grand jury indicted
Ocampo-Gomez for illegal reentry after removal, 8 U.S.C. § 1326, and he moved to
dismiss the indictment. He argued that the 2006 removal order underlying his
indictment was invalid because his notice to appear lacked the time and place of his
hearing. The district court denied his motion at a hearing. It reasoned that our court’s
precedent, including Ortiz-Santiago v. Barr, 924 F.3d 956, 958 (7th Cir. 2019), blocked
dismissal of the indictment. Ocampo-Gomez then conditionally pleaded guilty,
preserving the right to appeal this issue.
We review the denial of a motion to dismiss an indictment de novo. United States
v. Hernandez-Perdomo, 948 F.3d 807, 810 (7th Cir. 2020). Ocampo-Gomez’s motion sought
to attack collaterally his removal order. To mount such an attack, Ocampo-Gomez had
to demonstrate that: (1) he “exhausted any administrative remedies that may have been
available to seek relief against the order,” (2) the removal proceedings “improperly
deprived” him of the “opportunity for judicial review,” and (3) the entry of the removal
order was “fundamentally unfair.” 8 U.S.C. § 1326(d)(1)(3); see also United States v.
Manriquez-Alvarado, 953 F.3d 511, 513 (7th Cir. 2020).
Ocampo-Gomez cannot collaterally attack his removal order. He acknowledges
that for him to succeed we would have to overrule Ortiz-Santiago and Manriquez-
Alvarado. In Ortiz-Santiago, we held that if, during removal proceedings, a noncitizen
has not objected to a time-and-place defect in a notice to appear, the defect does not
invalidate a later order of removal, because it is not jurisdictional. 924 F.3d at 963–64.
Later, in Manriquez-Alvarado, we declined a request to overrule Ortiz-Santiago. 953 F.3d
at 512. We added that a noncitizen who could have timely objected to a notice defect in
connection with removal proceedings not only cannot attack the order on direct judicial
No. 20-2890 Page 3
review; the noncitizen cannot collaterally attack the removal order during a later illegal-
reentry prosecution. Manriquez-Alvarado, 953 F.3d at 512–13; see also Mejia-Padilla v.
Garland, No. 20-1720, 2021 WL 2659547, at *5 (7th Cir. June 29, 2021).
Nonetheless, Ocampo-Gomez insists that we should overturn Ortiz-Santiago. He
argues that it failed to consider two sources of law. The first is Section 309 of the Illegal
Immigration Reform and Immigration Responsibility Act of 1996, which refers to
actions that “confer jurisdiction” on immigration judges. The second is City of Arlington
v. F.C.C., 569 U.S. 290, 297–98 (2013), which states that, when agencies “act improperly,
no less than when they act beyond their jurisdiction, what they do is ultra vires.”
We again decline to overturn Ortiz-Santiago. We need not assess these two
arguments because “it takes more than argument that a decision is mistaken to justify
overruling.” Buchmeier v. United States, 581 F.3d 561, 566 (7th Cir. 2009) (en banc).
Overruling precedent requires “compelling circumstances,” Castellanos v. Holder,
652 F.3d 762, 765 (7th Cir. 2011), such as the opportunity to resolve a circuit split,
see Buchmeier, 581 F.3d at 566, or subsequent changes to the law that render the relevant
precedent inapt. See United States v. Lamon, 893 F.3d 369, 371–72 (7th Cir. 2018). But, as
we recognized in Ortiz-Santiago, circuits concur that the omission of time and place
information on a notice to appear does not destroy an immigration court’s jurisdiction.
924 F.3d at 958. “No other circuit has disagreed with [Ortiz-Santiago’s] holding.”
Manriquez-Alvarado, 953 F.3d at 512. Further, superseding inconsistent authority has not
occurred in the two years since Ortiz-Santiago was decided; both of Ocampo-Gomez’s
bases for overturning Ortiz-Santiago predate the decision. His argument for overturning
Ortiz-Santiago is therefore based on a belief that it was wrongly decided, and such a
belief is not a compelling reason to disturb precedent. Buchmeier, 581 F.3d at 566.
Finally, because Ocampo-Gomez cannot show that his initial removal was
fundamentally unfair, see Manriquez-Alvarado, 953 F.3d at 514, any separate challenge to
his underlying removal based on a violation of his right to “due process” also fails.
See Hernandez-Perdomo, 948 F.3d at 813.
AFFIRMED