United States v. Eleazar Hernandez-Perdomo
948 F.3d 807
| 7th Cir. | 2020Background
- Two Mexican nationals (Rangel and Hernandez) served NTAs that omitted a date/time for the initial immigration hearing; both were ordered removed in absentia and later removed, then unlawfully reentered and were indicted under 8 U.S.C. § 1326(a).
- Rangel missed his February 22, 2012 hearing while in state custody; ICE later removed him twice and he reentered multiple times before the § 1326 indictment.
- Hernandez moved residences after release on recognizance; EOIR mailed Notices of Hearing to his old address that were returned undeliverable; an in‑absentia removal order issued and ICE removed him.
- Both defendants relied on Pereira v. Sessions (deficient NTA doctrine) to argue their removal orders were invalid and moved to dismiss the reentry indictments; district courts denied the motions and both entered conditional guilty pleas, reserving appeal rights.
- The Seventh Circuit consolidated the appeals and affirmed, holding the defendants failed to satisfy the requirements of 8 U.S.C. § 1326(d) (exhaustion, deprivation of judicial review, fundamental unfairness).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a deficient NTA renders the removal order void/jurisdictional | Rangel/Hernandez: Pereira means the defective NTA nullified proceedings so removal orders are void | Gov: Ortiz‑Santiago forecloses a jurisdictional rule; NTA defects are claim‑processing and waivable | Court: Defendants abandoned the jurisdictional claim; Ortiz‑Santiago controls — defect is not jurisdictional |
| Whether defendants exhausted administrative remedies or are excused (futility) | Plaintiffs: Exhaustion was futile under prior practice; Pereira changed law so reopening would have been pointless | Gov: Motion to reopen was available (including "at any time" for in‑absentia or lack‑of‑notice cases); they did not move to reopen | Court: Motion to reopen was an available remedy; defendants failed to exhaust and cannot claim futility |
| Whether defendants were improperly deprived of judicial review (§1326(d)(2)) | Plaintiffs: Deficient NTAs and lack of notice denied meaningful judicial review | Gov: They could have sought reopening and then judicial review of any denial | Held: Not improperly deprived — judicial review was available; they simply did not seek it |
| Whether removal was "fundamentally unfair" (due process + prejudice) (§1326(d)(3)) | Plaintiffs: Deficient NTAs caused due‑process violations and prejudice; Ortiz‑Santiago would have required quashing NTAs | Gov: The defect is curable (new compliant NTA could issue); plaintiffs identify no nondiscretionary relief they would have obtained | Held: No fundamental unfairness — no entitlement to non‑discretionary relief shown and no prejudice proven |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA omitting time/place does not satisfy §1229(a) for stop‑time rule)
- Mendoza‑Lopez v. United States, 481 U.S. 828 (1987) (defendant in §1326 may collaterally attack underlying removal order)
- Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (NTA defects are claim‑processing and curable; not jurisdictional)
- Arita‑Campos v. United States, 607 F.3d 487 (7th Cir. 2010) (motion to reopen is an available administrative remedy for §1326(d)(1))
- Alegria‑Saldana v. United States, 750 F.3d 638 (7th Cir. 2014) (alien bears burden to show defective removal order; exhaustion required)
- Cordova‑Soto v. Holder, 732 F.3d 789 (7th Cir. 2013) (motion to reopen may be available after removal, including while alien is abroad)