United States v. Jaime Castellanos-Avalos ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30181
Plaintiff-Appellant,
D.C. No.
v. 2:19-cr-00135-RMP
JAIME CASTELLANOS-AVALOS,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted October 6, 2021
Seattle, Washington
Filed January 18, 2022
Before: RICHARD A. PAEZ, MILAN D. SMITH, JR.,
and JACQUELINE H. NGUYEN, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. CASTELLANOS-AVALOS
SUMMARY *
Criminal
The panel reversed the district court’s order granting
Jaime Castellanos-Avalos’s motion to dismiss an indictment
charging him with returning to the United States after having
been ordered removed in violation of 8 U.S.C. § 1326.
Castellanos-Avalos moved to dismiss pursuant to 8
U.S.C. § 1326(d), arguing that his removal order was
fundamentally unfair and that procedural defects in his
removal proceedings justified setting it aside. The district
court granted the motion, reasoning that the failure of
Castellanos-Avalos’s attorney or the immigration judge to
advise Castellanos-Avalos that he could seek voluntary
departure excused or satisfied § 1326(d)'s procedural
prerequisites for a collateral attack—administrative
exhaustion and deprivation of judicial review—and because
Castellanos-Avalos could plausibly have been granted that
form of relief.
In a criminal proceeding under § 1326, an alien may not
challenge the validity of a removal order unless the alien
demonstrates exhaustion of available administrative
remedies (§ 1326(d)(1)); that the removal proceedings
improperly deprived the alien of the opportunity for judicial
review (§ 1326(d)(2)); and that entry of the order was
fundamentally unfair (8 U.S.C. § 1326(d)(3)).
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. CASTELLANOS-AVALOS 3
The panel noted that the Supreme Court’s May 2021
decision in United States v. Palomar-Santiago, 141 S. Ct.
1615 (2021)—which held that a court may not excuse a
failure to exhaust administrative remedies and that each of
the statutory requirements of § 1326(d) is mandatory—has
called into question at least some aspects of this court’s
framework for recognizing circumstances in which a
defendant could overcome both the exhaustion requirement
and the deprivation-of-judicial-review requirement.
The panel heeded Palomar-Santiago’s reminder that
defendants must meet all three requirements of § 1326(d),
and was mindful of recent Ninth Circuit opinions expressing
doubt about the continued validity of this court’s § 1326(d)
doctrines after Palomar-Santiago. But the panel concluded
that it is largely unnecessary to apply Palomar-Santiago to
these unique facts because under this court’s existing case
law, Castellanos-Avalos cannot satisfy § 1326(d)’s
deprivation-of-judicial-review requirement, given that
Castellanos-Avalos did, in fact, seek judicial review, and
received it.
Because Castellanos-Avalos failed to show that he was
deprived of the opportunity for judicial review, as he was
required to do in order to collaterally attack his removal
order, the panel did not need to consider the government’s
other arguments. The panel remanded for further
proceedings, including reinstatement of the indictment.
4 UNITED STATES V. CASTELLANOS-AVALOS
COUNSEL
Michael J. Ellis (argued), Assistant United States Attorney;
Joseph H. Harrington, Acting United States Attorney;
United States Attorney’s Office, Spokane, Washington; for
Plaintiff-Appellant.
William Miles Pope (argued) and J. Stephen Roberts Jr.,
Federal Defenders of Eastern Washington & Idaho,
Spokane, Washington, for Defendant-Appellee.
OPINION
M. SMITH, Circuit Judge:
Defendant-appellee Jaime Castellanos-Avalos, a citizen
of Mexico, was ordered removed from the United States by
an Immigration Judge (IJ) in 2005. He was removed after
unsuccessfully appealing the order to both the Board of
Immigration Appeals (BIA) and our court. Several years
later, Castellanos-Avalos was indicted for returning to the
United States after having been ordered removed in violation
of 8 U.S.C. § 1326. He moved to dismiss the indictment,
arguing that his removal order was fundamentally unfair and
that procedural defects in his removal proceedings justified
setting it aside pursuant to 8 U.S.C. § 1326(d). The district
court granted the motion, and the United States appealed.
We have jurisdiction pursuant to 18 U.S.C. § 3731 and
28 U.S.C. § 1291, and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The salient facts of this case are undisputed.
Castellanos-Avalos arrived in the United States as a child in
1989. He was placed in removal proceedings in Tacoma,
UNITED STATES V. CASTELLANOS-AVALOS 5
Washington in 2005 after being convicted for possession of
stolen property and reckless endangerment. He retained
then-attorney Theodore Mahr 1 to represent him in the
removal proceedings.
In an early appearance before the IJ, Mahr conceded that
Castellanos-Avalos was removable, but asked for and
received permission to file a brief exploring his client’s
eligibility for relief. Two weeks later, Mahr filed a two-
paragraph brief incorrectly stating that Castellanos-Avalos’s
family had applied for lawful permanent resident status on
his behalf and indicating that Mahr planned to seek a
gubernatorial pardon for Castellanos-Avalos’s recent
convictions. The IJ held a removal hearing shortly
thereafter, concluded that Castellanos-Avalos was ineligible
for relief, and ordered him removed. Mahr filed an appeal
that the BIA denied in April 2006.
While Castellanos-Avalos’s appeal was under
consideration at the BIA, his family hired attorney Manuel
Rios III to pursue a state-bar complaint against Mahr on
Castellanos-Avalos’s behalf. Castellanos-Avalos’s
complaint identified Mahr’s failure to request the only relief
he was arguably entitled to, voluntary departure. 2 Rios also
1
Mahr was disbarred in 2010 after a three-year suspension for
various forms of misconduct in numerous immigration matters,
including forging client signatures, missing hearings, and failing to
diligently represent his clients.
2
“Voluntary departure is a discretionary form of relief that allows
certain favored aliens—either before the conclusion of removal
proceedings or after being found [removable]—to leave the country
willingly.” Dada v. Mukasey, 554 U.S. 1, 8 (2008). A major benefit of
voluntary departure is that it “facilitates the possibility of readmission”
to the United States. Id. at 11.
6 UNITED STATES V. CASTELLANOS-AVALOS
offered Castellanos-Avalos advice about his immigration
proceedings, telling him “he was only eligible for voluntary
departure relief in his proceedings” and that “the best we
[can] do [is] to reopen the case” based on Mahr’s poor
lawyering “and then ask for voluntary departure.”
After the BIA denied his administrative appeal,
Castellanos-Avalos appealed pro se to our court. He also
filed a motion with the BIA to reopen his removal
proceedings, which was denied. See In Re: Jaime
Castellanos-Avalos, No. AXX XX6 072-TA, 2007 WL
686632, at *1 (BIA Feb. 1, 2007) (unpublished). We denied
both Castellanos-Avalos’s original appeal and his appeal of
the BIA’s denial of his motion to reopen in an unpublished
decision. See Castellanos-Avalos v. Mukasey, 292 F. App’x
575, 576–77 (9th Cir. 2008) (unpublished). None of these
appeals or requests for relief mentioned voluntary
departure. 3
Castellanos-Avalos was removed to Mexico in
November 2008, but returned to the United States at some
point. In September 2019, he was indicted in the Eastern
District of Washington for being found in the United States
after having been ordered removed in violation of 8 U.S.C.
3
The excerpts of record submitted by the parties include copies of
the BIA and Ninth Circuit decisions mentioned in this paragraph, and the
citations to them are included only for convenience. The excerpts of
record also contain brief references to district court habeas petitions that
Castellanos-Avalos filed pro se challenging his immigration detention.
We note that orders dismissing with prejudice two habeas petitions filed
by Castellanos-Avalos appear to be available on Westlaw. See
Castellanos-Avalos v. Clark, No. C06-1562-JLRJPD, 2007 WL 1600635(W.D. Wash. June 1, 2007) (adopting report and recommendation);
Castellanos v. Clark, No. C07-573-RSM-MJB, 2007 WL 1556295(W.D. Wash. May 25, 2007) (same). We do not rely on the habeas
petitions for our disposition.
UNITED STATES V. CASTELLANOS-AVALOS 7
§ 1326. He moved to dismiss the indictment by collaterally
attacking his removal order. The district court granted the
motion, reasoning that the failure of Mahr or the IJ to advise
Castellanos-Avalos that he could seek voluntary departure
excused or satisfied § 1326(d)’s procedural prerequisites for
a collateral attack—administrative exhaustion and
deprivation of judicial review—and because it found that
Castellanos-Avalos could plausibly have been granted that
form of relief. The government timely appealed.
We review de novo the district court’s dismissal of the
indictment. See United States v. Reyes-Bonilla, 671 F.3d
1036, 1042 (9th Cir. 2012).
ANALYSIS
“In a criminal proceeding under [8 U.S.C. § 1326], an
alien may not challenge the validity of [a removal] order . . .
unless the alien demonstrates that—(1) the alien exhausted
any administrative remedies that may have been available to
seek relief against the order; (2) the [removal] proceedings
at which the order was issued improperly deprived the alien
of the opportunity for judicial review; and (3) the entry of
the order was fundamentally unfair.” 8 U.S.C. § 1326(d).
The government argues that Castellanos-Avalos cannot
satisfy the procedural prerequisites for a collateral attack in
§ 1326(d)(1) and (d)(2). 4 It also contests whether
4
The government’s opening brief argued that Castellanos-Avalos
failed to exhaust his administrative remedies because he was told about
voluntary departure but never sought it at the administrative level.
However, the government reversed course at oral argument, stating
unequivocally that Castellanos-Avalos’s administrative appeal to the
BIA satisfied § 1326(d)(1)’s exhaustion requirement. Either way, it was
improper to dismiss the indictment because Castellanos-Avalos cannot
satisfy § 1326(d)(2).
8 UNITED STATES V. CASTELLANOS-AVALOS
Castellanos-Avalos was prejudiced from the defects in his
immigration proceedings, which our circuit has held is
necessary to establish fundamental unfairness under
§ 1326(d)(3). See United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1048 (9th Cir. 2004). We agree that
Castellanos-Avalos was not deprived of an opportunity for
judicial review because he “did, in fact, seek judicial
review,” United States v. Gonzalez-Villalobos, 724 F.3d
1125, 1132 (9th Cir. 2013) (emphasis in original), and he
received it. Consequently, it is unnecessary to consider the
government’s other arguments. See id. at 1132–33.
I.
We begin by noting a recent development. As of April
2021, when the briefing in this case closed, our court
recognized three circumstances in which a defendant could
overcome both § 1326(d)(1)’s exhaustion requirement and
§ 1326(d)(2)’s deprivation-of-judicial-review requirement:
(1) “when the IJ failed to inform the alien that he had a right
to appeal his [removal] order to the BIA;” (2) when the IJ
failed “to inform the alien that he is eligible for a certain type
of relief;” and (3) when the defendant waived his right to
appeal to the BIA, but can show that “his waiver was not
considered and intelligent.” Gonzalez-Villalobos, 724 F.3d
at 1130–31. In such scenarios, we explained that the
defendant was “excused” from § 1326(d)(1)’s exhaustion
requirement because he was effectively “deprived of his
right to appeal to the BIA,” and that the defendant “satisfied”
§ 1326(d)(2)’s deprivation-of-judicial-review requirement
because an inability to seek an administrative appeal
“typically” also prevents judicial review. Id. at 1130 & n.7.
For similar reasons, we have held that a showing of
ineffective assistance of counsel can justify a failure to
exhaust and satisfy the judicial review requirement. See
UNITED STATES V. CASTELLANOS-AVALOS 9
United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th
Cir. 2014).
The Supreme Court’s May 2021 decision in United
States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), has
called at least some aspects of this framework into question.
Palomar-Santiago concerned a different circumstance in
which our court’s precedents permitted excusal of a failure
to comply with § 1326(d)’s procedural requirements.
Specifically, we had held that § 1326 defendants who had
been ordered removed due to a criminal conviction were
“‘excused from proving the first two requirements’ of
§ 1326(d) if they were ‘not convicted of an offense that made
[them] removable.’” Palomar-Santiago, 141 S. Ct. at 1620
(quoting United States v. Ochoa, 861 F.3d 1010, 1015 (9th
Cir. 2017)). The Supreme Court disagreed, holding that “a
court may not excuse a failure to exhaust” administrative
remedies pursuant to § 1326(d)(1), id. at 1621 (quoting Ross
v. Blake, 578 U. S. 632, 639 (2016)), and that “each of the
statutory requirements of § 1326(d) is mandatory,” id. at
1622.
Prior to oral argument, the government submitted a letter
addressing Palomar-Santiago and contending that it
supported reversing the district court. Because both
Castellanos-Avalos and the government necessarily relied
on our court’s pre-Palomar-Santiago precedents in their
appellate briefs, we ordered the parties to be prepared to
discuss the case. Oral argument focused primarily on
Palomar-Santiago’s possible impact on this appeal.
Having considered the parties’ arguments, we conclude
that it is largely unnecessary to apply Palomar-Santiago to
these unique facts. We heed Palomar-Santiago’s reminder
that—consistent with the use of the word “and” in the text of
§ 1326(d)—“defendants must meet all three” requirements
10 UNITED STATES V. CASTELLANOS-AVALOS
of § 1326(d), meaning that a failure to satisfy any of the three
prongs dooms a collateral attack on a removal order. 141 S.
Ct. at 1620–21 (emphasis added); see also id. at 1622 (“The
Court holds that each of the statutory requirements of
§ 1326(d) is mandatory.” (emphasis added)). We are also
mindful of recent opinions by our court expressing doubt
about the continued vitality of our § 1326(d) doctrines after
Palomar-Santiago. See Zamorano v. Garland, 2 F.4th 1213,
1225 (9th Cir. 2021); see also Alam v. Garland, 11 F.4th
1133, 1137–38 (9th Cir. 2021) (en banc) (Bennett, J.,
concurring); United States v. Bastide-Hernandez, 3 F.4th
1193, 1197 (9th Cir. 2021), reh’g en banc granted, opinion
vacated, — F.4th —, 2021 WL 6134032 (9th Cir. 2021).
However, because Castellanos-Avalos cannot satisfy
§ 1326(d)(2)’s deprivation-of-judicial review requirement
under our existing case law, we need not decide whether an
opposite conclusion would run afoul of Palomar-Santiago.
II.
“[T]he requirements of 8 U.S.C. § 1326(d) . . . make
clear that it is not enough for the defendant to show that ‘the
entry of the [removal] order was fundamentally unfair,’ as
required by (d)(3), and that he exhausted his administrative
remedies, as required by (d)(1); he must also show that ‘the
[removal] proceedings at which the order was issued
improperly deprived [him] of the opportunity for judicial
review.’” Gonzalez-Villalobos, 724 F.3d at 1132 (quoting
8 U.S.C. § 1326(d)) (emphasis in original). Castellanos-
Avalos received ample judicial review, so he could not have
been deprived of even “the opportunity” for it. 8 U.S.C.
§ 1326(d)(2). He appealed the BIA’s denial of his
administrative appeal to our court, and later did the same
respecting the BIA’s denial of his motion to reopen. We
reviewed both petitions and denied them (primarily) on the
UNITED STATES V. CASTELLANOS-AVALOS 11
merits. See Castellanos-Avalos, 292 F. App’x at 576–77
(holding jurisdiction was lacking as to one issue).
Our precedents confirm this commonsense application
of § 1326(d)(2). We have only held defendants to have been
deprived of judicial review under § 1326(d)(2) when there
was no judicial review whatsoever of their removal order.
See, e.g., Lopez-Chavez, 757 F.3d at 1041 (defendant’s
attorney “failed to appeal to the BIA and then petition the
Seventh Circuit” for relief from removal order despite “clear
basis” for doing so); United States v. Ramos, 623 F.3d 672,
682 (9th Cir. 2010) (defendant’s “waiver of his right to
appeal [his] removal order was procedurally defective and
deprived him of the opportunity for meaningful judicial
review”). This reflects the rationale that “where the
defendant has failed to identify any obstacle that prevented
him from obtaining judicial review of a deportation order, he
is not entitled to such review as part of a collateral attack
under 8 U.S.C. § 1326(d).” Gonzalez-Villalobos, 724 F.3d
at 1132 (citations omitted); see also id. at 1133 (“the
defendant must show an actual or constructive inability to
seek judicial review . . . to satisfy § 1326(d)(2)”).
Put simply, Castellanos-Avalos had an “opportunity” for
judicial review because (speaking figuratively) “the doors to
the courts were open” to him on more than one occasion, and
he in fact made use of them. United States v. Hinojosa-
Perez, 206 F.3d 832, 836 (9th Cir. 2000); accord Gonzalez-
Villalobos, 724 F.3d at 1132–33. In both its appellate
briefing and its briefing in the district court, the government
argued prominently that this fact distinguished his case from
others where we have allowed a collateral attack pursuant to
§ 1326(d). Strikingly, neither Castellanos-Avalos’s
answering brief nor the district court’s order cited a single
Ninth Circuit or Supreme Court case that would rebut this
12 UNITED STATES V. CASTELLANOS-AVALOS
contention, and we have not found one. To the contrary, we
have held that § 1326(d)(2) was not satisfied in cases where
there was far less scrutiny from the courts. See Gonzalez-
Villalobos, 724 F.3d at 1132 (holding that defendant had
opportunity for judicial review and emphasizing that
petitioner “did, in fact, seek judicial review,” namely “a
petition for writ of habeas corpus” that he later withdrew
voluntarily (emphasis in original)).
The cases relied upon by Castellanos-Avalos are
distinguishable not just because of the ample judicial review
he received, but for other reasons as well. 5 For example, in
United States v. Arias-Ordonez, we held that the defendant
had met the requirements of § 1326(d)(1) and (d)(2) not only
because he was told “unequivocally that there was nothing
he could do” to challenge his removal, but also because there
was no other “indication he knew how to pursue
administrative or judicial remedies.” 597 F.3d 972, 977 (9th
Cir. 2010). Conversely, the fact that Castellanos-Avalos
filed two direct appeals and two habeas petitions shows that
he understood how to pursue judicial relief. Cf. Hinojosa-
Perez, 206 F.3d at 836 (noting that defendant’s past filing of
5
As a result, we need not decide whether it is possible for a
defendant to have been deprived of an opportunity for judicial review
even where some form of review occurred. We note that the Supreme
Court has held that at least “some meaningful review” must be available
for a removal order, United States v. Mendoza-Lopez, 481 U.S. 828, 838
(1987) (emphasis in original), and § 1326(d) was enacted in response to
that holding, Palomar-Santiago, 141 S. Ct. at 1619 (explaining that
Congress enacted § 1326(d) as part of the Antiterrorism and Effective
Death Penalty Act of 1996 in response to Mendoza-Lopez). Cf. United
States v. Barajas-Alvarado, 655 F.3d 1077, 1083 (9th Cir. 2011)
(Supreme Court has provided “little direct guidance” about scope of right
to judicial review in this context).
UNITED STATES V. CASTELLANOS-AVALOS 13
a notice of appeal to the BIA showed he was “familiar with
the [administrative] appeal process”).
Castellanos-Avalos also cites to United States v. Rojas-
Pedroza, 716 F.3d 1253 (9th Cir. 2013), claiming that it
requires us to hold that the IJ’s failure to advise him of his
potential eligibility for voluntary departure constitutes a
deprivation of judicial review. To be sure, Rojas-Pedroza
explained that an IJ’s failure to inform a non-citizen that he
is eligible for relief from removal may cause a deprivation
of the opportunity for judicial review. Id. at 1262–63.
However, Rojas-Pedroza itself did not reach the judicial
review issue, see id. at 1264 (noting “ambiguity in the
record” about defendant’s eligibility for relief and resolving
appeal based on lack of prejudice), and cited United States
v. Arrieta, 224 F.3d 1076 (9th Cir. 2000), for the failure-to-
inform principle, see 716 F.3d at 1262–63. The reasoning of
that case is inapplicable to Castellanos-Avalos’s situation.
Arrieta held that the defendant had met the procedural
prerequisites of § 1326(d) despite having waived his right to
appeal. Id. at 1079. It reasoned that the defendant had no
opportunity to “make a considered and intelligent decision
about his right to appeal” because “the IJ never informed him
of his eligibility” for a particular form of relief or “any other
possible mechanism” to avoid removal, and so he was
deprived of “a meaningful opportunity for judicial review.”
Id. at 1079. However, Arrieta’s premise was that
“presumably . . . an alien who is not made aware that he has
a right to seek relief necessarily has no meaningful
opportunity to appeal the fact that he was not advised of that
right.” Id. (citing United States v. Arce-Hernandez, 163 F.3d
559, 563 (9th Cir. 1998)); accord Rojas-Pedroza, 716 F.3d
at 1262–63 (quoting this language).
14 UNITED STATES V. CASTELLANOS-AVALOS
While it would ordinarily be reasonable to assume that
someone who had been misled into believing that he had no
grounds for an appeal would not bother filing one, that is
clearly not what happened here: as discussed, Castellanos-
Avalos actively pursued judicial relief, and this court has
already reviewed the legality of his removal order.
Moreover, the record in this case demonstrates that
Castellanos-Avalos was “made aware” of his possible
entitlement to voluntary departure by attorney Rios before
seeking judicial review. Consequently, the failure-to-inform
principle discussed by Rojas-Pedroza and Arrieta is
inapposite.
CONCLUSION
Castellanos-Avalos has failed to show that he was
“deprived . . . of the opportunity for judicial review,” as he
was required to do in order to collaterally attack his removal
order. 8 U.S.C. § 1326(d)(2). For that reason, the district
court’s order dismissing the indictment is reversed. The case
is remanded for further proceedings, including reinstatement
of the indictment.
REVERSED and REMANDED.