United States v. Merlos-Ortiz, 4:22-cr-06018

Carlos Armando Merlos-Ortiz, a citizen of El Salvador, was charged with illegal reentry after deportation. His removal proceedings began in 2001, following entry in 1998 without lawful status.
During his immigration proceedings, Merlos-Ortiz had various criminal convictions and incidents, which affected his eligibility for relief.
His initial removal hearing was based on a Notice to Appear (NTA) lacking date, time, and place, which later became significant due to the Supreme Court’s decision in Pereira v. Sessions.
Merlos-Ortiz sought various forms of immigration relief, including asylum and cancellation of removal, but was deemed ineligible for non-LPR cancellation due to the stop-time rule as previously understood.
He later argued improper legal reasoning and ineffective assistance of counsel (for failing to seek VAWA relief), both administratively and on appeal, but the Board of Immigration Appeals and courts denied his motions.
In 2022, after reentering and being arrested, Merlos-Ortiz moved to dismiss his federal indictment, collaterally attacking the underlying removal order on due process and ineffective assistance grounds.

Issue	Merlos-Ortiz's Argument	Government's Argument	Held
Collateral attack on removal due to stop-time rule error	The defective 2001 NTA did not stop accrual of 10 years for cancellation eligibility, per Pereira; thus, he was eligible for relief and due process was violated	Even if there was a legal error, Merlos-Ortiz had opportunities for judicial review and fully litigated his claims previously	Denied; extensive judicial review precludes collateral attack regardless of legal error
Ineffective assistance of counsel for not filing VAWA claim	Counsel failed to pursue VAWA cancellation, prejudicing his removal case	There were potential strategic reasons for not pursuing VAWA and insufficient evidence of prejudice or counsel deficiency	Denied; no ineffective assistance shown, and no clear prejudice demonstrated

Strickland v. Washington, 466 U.S. 668 (ineffective assistance of counsel requires both deficient performance and resulting prejudice)
Pereira v. Sessions, 585 U.S. 198 (an NTA lacking time/place does not trigger the stop-time rule for cancellation of removal)
United States v. Palomar-Santiago, 593 U.S. 321 (all requirements under § 1326(d) must be met for a collateral attack)
United States v. Castellanos-Avalos, 22 F.4th 1142 (judicial review is sufficient when the defendant accessed court processes, even if relief was denied)