United States v. Jose Zambrano-Reyes
724 F.3d 761
| 7th Cir. | 2013Background
- Zambrano, a lawful permanent resident, was removed in 2000 after a 1993 guilty plea to aggravated sexual abuse of a minor (an aggravated felony).
- He unlawfully reentered the U.S. and pleaded guilty in 2011 to illegal reentry under 8 U.S.C. § 1326.
- On the eve of his 2012 sentencing he moved to withdraw his plea, arguing new Supreme Court precedent (Judulang) plus St. Cyr created a basis to collaterally attack his 1998 removal order under 8 U.S.C. § 1326(d).
- Section 1326(d) requires (1) exhaustion of administrative remedies, (2) deprivation of opportunity for judicial review, and (3) that the removal order was fundamentally unfair.
- The district court accepted exhaustion but denied withdrawal, finding Zambrano could not show he was deprived of judicial review or that the removal was fundamentally unfair; the Seventh Circuit affirmed.
Issues
| Issue | Zambrano's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Zambrano was deprived of the opportunity for judicial review of his 1998 removal | He contends practical limits on review then (limited habeas/direct review scope) and adverse circuit precedent effectively denied review | He could have sought review and, in this circuit, Jideonwo made §212(c) relief available to plea defendants so review was not foreclosed | Denied — court held he was not deprived of the opportunity for judicial review |
| Whether the 1998 removal order was "fundamentally unfair" because the BIA misapplied §212(c) eligibility (comparable-grounds rule) | The BIA’s error wrongfully deprived him of consideration for discretionary §212(c) relief, rendering the order fundamentally unfair under §1326(d)(3) | Even assuming the BIA erred, the court need not resolve the scope of "fundamental unfairness" because Zambrano failed the judicial-review prong; prior Seventh Circuit precedent rejects an entitlement to be informed or considered for discretionary relief | Not reached on merits; court declined to expand or revisit prior Seventh Circuit law and affirmed denial of plea withdrawal |
| Whether Judulang’s later decision changes the analysis for collateral attack | Judulang eliminated the BIA’s comparable-grounds approach and so (arguably) vindicates his claim now | Judulang does not change whether Zambrano was deprived of review in 1998 or establish a defense to §1326 reentry charge now | Irrelevant to outcome — Judulang does not entitle Zambrano to withdraw his plea or defeat the reentry charge |
Key Cases Cited
- Judulang v. Holder, 132 S. Ct. 476 (2011) (Court struck BIA’s comparable-grounds rule for §212(c) eligibility as arbitrary)
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (held §212(c) relief remains available to many plea defendants despite 1996 reforms)
- Mendoza-López v. United States, 481 U.S. 828 (1987) (due-process defects in removal proceedings can invalidate deportation orders)
- Jideonwo v. I.N.S., 224 F.3d 692 (7th Cir. 2000) (Seventh Circuit held AEDPA §440(d) could not retroactively bar §212(c) relief for plea defendants)
- United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) (reiterated that failure to seek review does not mean opportunity for review was deprived)
- United States v. De Horta Garcia, 519 F.3d 658 (7th Cir. 2008) (held due process does not entitle alien to be informed of or considered for discretionary relief)