United States v. Edmundo Manriquez-Alvarado, 953 F.3d 511

Background

Edmundo Manriquez‑Alvarado, a Mexican national, repeatedly entered the U.S. unlawfully and was ordered removed in 2008, 2010, 2012, 2014, and 2017 following criminal convictions.
All later reentry prosecutions rely on the 2008 removal order; he was indicted for illegal reentry in 2018 under 8 U.S.C. §1326(a), (b)(2) and sentenced to 39 months after pleading guilty with a reserved appeal right.
The 2008 Notice to Appear (NTA) omitted a hearing date; Pereira v. Sessions held that an NTA lacking a hearing date does not meet the statutory requirements of 8 U.S.C. §1229(a)(1).
Manriquez‑Alvarado argued the omission rendered the 2008 removal void; the government relied on Ortiz‑Santiago v. Barr, which treats Pereira as a claims‑processing rule rather than a jurisdictional bar.
He waived his rights and stipulated to removal in 2008, foregoing administrative and judicial review; he later argued exhaustion was unavailable or futile and that the waiver was involuntary because Pereira came later.
The court analyzed whether Pereira creates a jurisdictional defect and whether Manriquez‑Alvarado satisfied the three‑part §1326(d) test for collateral attack (exhaustion, deprivation of judicial review, and fundamental unfairness).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Pereira make an NTA lacking a hearing date jurisdictionally void?	Pereira means NTA without date deprives agency of jurisdiction.	Pereira is a claims‑processing rule; it does not strip jurisdiction (Ortiz‑Santiago).	Court follows Ortiz‑Santiago: Pereira is not jurisdictional.
Can a long‑closed removal order be collaterally attacked on a later‑discovered jurisdictional defect?	If Pereira is jurisdictional, prior removals are void and open to collateral attack at any time.	Jurisdictional defects must be raised in the proceeding; final orders are conclusive; collateral attack governed by §1326(d).	Final removal orders aren’t automatically void; collateral attack requires meeting §1326(d).
Did Manriquez‑Alvarado satisfy §1326(d)’s three‑part test (availability, deprivation of review, fundamental unfairness)?	Waiver and lack of Pereira made remedies unavailable and waiver involuntary, so §1326(d) is met.	He waived proceedings; remedies were available; failure to exhaust bars collateral attack; lack of Pereira is not dispositive.	He failed to meet §1326(d): remedies were available and he did not pursue them; waiver undermines unfairness claim.
Is a later Supreme Court decision (Pereira) that interprets an older statute a basis to excuse failure to exhaust earlier?	Pereira postdates 2008, so pursuing remedies then would have been futile or pointless.	The statute predated Pereira; he could have raised the statutory argument and pursued administrative and judicial review; futility is not the statutory test.	Futility of success is not the same as unavailability; he should have used available remedies.

Key Cases Cited

Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court holding an NTA lacking a hearing date fails to satisfy §1229(a)(1))
Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (holds Pereira is a claims‑processing rule, not a jurisdictional limitation)
Bousley v. United States, 523 U.S. 614 (1998) (adverse local precedent does not excuse failure to present a claim unless the claim was unforeseeable)
Travelers Indem. Co. v. Bailey, 557 U.S. 137 (2009) (final judgments are conclusive and not always subject to collateral attack)
United States v. Hernandez‑Perdomo, 948 F.3d 807 (7th Cir. 2020) (confirms §1326(d) requires proof of all three elements for collateral attack)
Porter v. Nussle, 534 U.S. 516 (2002) (an administrative remedy is “available” if it offers the prospect of any relief)