16 F.4th 906
1st Cir.2021Background
- Castillo‑Martinez, a lawful permanent resident, had a 1996 Massachusetts marijuana conviction and a 2012 New Hampshire OxyContin conspiracy conviction. DHS served an NTA after the OxyContin conviction that cited removability based on the earlier marijuana conviction but omitted a specific hearing date/time.
- He, through counsel, conceded removability (relying on then‑controlling First Circuit precedent), applied for CAT relief, was denied, appealed to the BIA, did not seek judicial review, and was removed to the Dominican Republic in April 2013.
- He reentered, was removed again in November 2016, reentered a third time, and was indicted in 2018 for unlawful reentry under 8 U.S.C. § 1326(a).
- In 2019 he moved to dismiss the § 1326 indictment, arguing (1) under Pereira that the NTA omission deprived the immigration court of jurisdiction, and (2) that his 2012 removal order was invalid because counsel ineffectively conceded that his marijuana conviction was an aggravated felony (an argument strengthened by Moncrieffe v. Holder).
- The government invoked § 1326(d), which bars collateral attacks on prior removal orders in criminal proceedings unless the defendant (1) exhausted administrative remedies, (2) was improperly deprived of judicial review, and (3) shows the order’s entry was fundamentally unfair; the district court denied the motion, and Castillo‑Martinez appealed.
- The First Circuit affirmed: it rejected the Pereira‑based jurisdictional claim (following circuit precedent) and held Castillo‑Martinez failed to meet § 1326(d)’s requirements (exhaustion and fundamental‑fairness/prejudice), relying on Palomar‑Santiago and related precedent.
Issues
| Issue | Plaintiff's Argument (Castillo‑Martinez) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Did the omission of date/time in the NTA deprive the immigration court of jurisdiction (Pereira challenge)? | Pereira means an NTA lacking date/time is jurisdictionally defective, so the removal order is invalid. | First Circuit precedent controls: an NTA without date/time does not defeat immigration‑court jurisdiction; Pereira not dispositive here. | Rejected plaintiff; First Circuit follows Mendoza/Mendoza‑line cases and Mendoza/Mendoza‑style holdings (Pereira claim fails). |
| Can Castillo‑Martinez collaterally attack his 2012 removal order under §1326(d) based on ineffective assistance and Moncrieffe? (Exhaustion; deprivation of judicial review; fundamental unfairness/prejudice) | Counsel ineffectively conceded aggravated‑felony status for the marijuana conviction; Moncrieffe shows that conviction could not support removal, so the removal order was fundamentally unfair and judicial review was foreclosed. | §1326(d) requires exhaustion and the three conjunctive showings; Castillo‑Martinez did not move to reopen or exhaust the BIA remedy after Moncrieffe; Palomar‑Santiago forbids excusing mandatory exhaustion; even assuming deficient counsel, he cannot show prejudice/fundamental unfairness because other grounds (OxyContin conviction and government amendment power) would have supported removal. | Affirmed: plaintiff failed §1326(d)(1)–(2) and (3); Palomar‑Santiago bars excusing exhaustion; no showing of prejudice or that the proceeding was fundamentally unfair. |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (applies categorical approach and held some low‑level drug convictions do not qualify as aggravated felonies)
- Mendoza‑Lopez v. United States, 481 U.S. 828 (1987) (due process prevents use of administrative order as conclusive proof in criminal case where review was foreclosed)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressed NTA contents in the stop‑time context; raised NTA timing/jurisdiction issues)
- United States v. Palomar‑Santiago, 141 S. Ct. 1615 (2021) (held §1326(d)’s first two procedural requirements are mandatory and exhaustion cannot be excused merely because IJ erred on removability)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (interpreted the statutory ‘‘notice to appear’’ requirement as a single‑document rule; discussed NTA formalities)
- United States v. Luna, 436 F.3d 312 (1st Cir. 2006) (describes §1326(d) exhaustion and prejudice framework)
- United States v. Williams, 858 F.3d 708 (1st Cir. 2017) (illustrates prejudice analysis by focusing on likely result of proceedings, not only on the fate of the original charge)
- United States v. Lopez‑Chavez, 757 F.3d 1033 (9th Cir. 2014) (held ineffective assistance may excuse exhaustion where counsel’s errors caused the failure to pursue administrative relief)