United States v. Emilio Estrada, 876 F.3d 885

Estrada, a Mexican lawful permanent resident, was convicted of possession of a firearm by an unlawful user of a controlled substance and sentenced in 2007.
Because the conviction was an aggravated felony, immigration proceedings were initiated; Estrada appeared with counsel, conceded removability, waived appeal, and was removed to Mexico in 2009.
In 2015 he was found in the U.S.; a grand jury charged him with illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(2).
Estrada moved to dismiss the § 1326 indictment by collaterally attacking his prior removal order, alleging (1) the IJ failed to advise him of potential relief under INA § 212(h) and (2) ineffective assistance of counsel for not seeking that relief.
The district court denied his motions; Estrada pleaded guilty to one count reserving the right to appeal the denial of the motions.
The Sixth Circuit considered whether Estrada satisfied 8 U.S.C. § 1326(d)’s requirements to collaterally attack the removal order, focusing on whether the underlying proceedings were fundamentally unfair (due process violation and prejudice).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to advise of discretionary § 212(h) relief or counsel’s failure to pursue it violates due process such that the removal order was "fundamentally unfair" under 8 U.S.C. § 1326(d)(3)	Estrada: IJ and counsel failed to advise/seek § 212(h) waiver, causing denial of procedural due process and fundamental unfairness	Government: § 212(h) relief is discretionary; there is no constitutionally protected liberty interest in discretionary relief, so no due process violation	Held for Government: No due process violation because discretionary relief creates no protected liberty interest; Estrada fails § 1326(d)(3) and cannot collaterally attack the removal order

United States v. Zuñiga-Guerrero, 460 F.3d 733 (6th Cir.) (standard of review and framework for collateral attack under § 1326)
Ashki v. INS, 233 F.3d 913 (6th Cir. 2000) (no constitutionally protected liberty interest in discretionary relief)
Huicochea-Gomez v. INS, 237 F.3d 696 (6th Cir.) (due process extends to aliens but denial of discretionary relief does not violate due process)
United States v. Santiago-Ochoa, 447 F.3d 1015 (7th Cir.) (no right to be advised of or considered for discretionary relief)
United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir.) (contrasting view: IJ’s failure to advise of discretionary relief can violate due process)
United States v. Copeland, 376 F.3d 61 (2d Cir.) (failure to advise of discretionary relief can be fundamentally unfair if prejudicial)