United States v. Juan Larios-Buentello, 807 F.3d 176

Juan Larios-Buentello, a noncitizen with an extensive criminal history, was subject to a 1998 immigration judge (IJ) removal order; later prosecutions for illegal reentry under 8 U.S.C. § 1326 rely on that order.
He was charged under §1326 after Wisconsin turned him over to immigration authorities following a hit-and-run; the district court sentenced him to 36 months after a conditional guilty plea reserving the §1326(d) challenge.
§1326(d) allows a defendant to defeat illegal-reentry charges by proving (1) exhaustion of administrative remedies, (2) deprivation of opportunity for judicial review, and (3) that the removal order was fundamentally unfair.
Larios-Buentello argued the 1998 removal was fundamentally unfair because the IJ did not advise him of eligibility for discretionary relief under former INA §212(c), which Congress repealed in IIRIRA (1996); he relies on INS v. St. Cyr (2001) reasoning on retroactivity.
The district court rejected his §1326(d) defense: he did not exhaust administrative remedies (no BIA appeal), was not deprived of judicial review, and it was not unfair for the IJ to follow the agency’s bona fide legal position that §212(c) relief was unavailable.
The court noted Larios-Buentello’s March 1997 felony guilty pleas occurred after AEDPA and IIRIRA were enacted, making it unlikely St. Cyr would have provided relief even had he exhausted remedies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1326(d) bars prosecution because removal order was "fundamentally unfair" for failure to advise about §212(c)	IJ’s failure to advise of §212(c) eligibility made removal fundamentally unfair	Agency sincerely believed §212(c) was unavailable; no entitlement to notice of relief the agency thought unavailable	Rejected — not fundamentally unfair to follow the agency’s bona fide legal position
Whether Larios-Buentello satisfied §1326(d)(1) (exhaustion)	He claimed appeal would be futile and thus exhaustion was excused	He did not appeal to BIA; the removal order recites he was told of appeal rights and declined	Rejected — exhaustion required; unilateral belief of futility insufficient
Whether he was deprived of judicial review under §1326(d)(2)	Alleged deprivation because IJ failed to advise of relief options	No BIA appeal was taken; judicial review was available had he appealed	Rejected — opportunity for judicial review existed and was not foreclosed
Whether St. Cyr entitles him to relief given timing of convictions	St. Cyr protects pre-AEDPA pleas from retroactive elimination of §212(c)	His guilty pleas occurred in March 1997 after AEDPA/IIRIRA changes, so St. Cyr likely would not help	Rejected — factual timing makes St. Cyr inapplicable; unlikely he would have benefited even if he had appealed

INS v. St. Cyr, 533 U.S. 289 (2001) (held repeal of §212(c) could not be applied retroactively to some pre-enactment guilty pleas)
United States v. Zambrano-Reyes, 724 F.3d 761 (7th Cir. 2013) (rejected §1326(d) defense where removal order predated St. Cyr)
United States v. Santiago-Ochoa, 447 F.3d 1015 (7th Cir. 2006) (no constitutional right to be notified of discretionary relief the agency deems unavailable)
United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) (discusses exhaustion and the implications of failing to pursue administrative and judicial remedies)
Bousley v. United States, 523 U.S. 614 (1998) (party’s belief that an appeal would be futile does not render an available procedure unavailable)
United States v. Soto-Mateo, 799 F.3d 117 (1st Cir. 2015) (court requiring satisfaction of all §1326(d) elements)
United States v. Torres, 383 F.3d 92 (3d Cir. 2004) (same — all §1326(d) elements must be met)
Zivkovic v. Holder, 724 F.3d 894 (7th Cir. 2013) (recites statutory changes and context concerning §212(c) repeal)

Affirmed.