United States v. Nicolas Alegria-Saldana, 2014 U.S. App. LEXIS 7263

Background

Nicolas Alegria-Saldana, a Mexican national and lawful permanent resident, was ordered removed in 2003 after an immigration judge concluded his Illinois felony cocaine-possession convictions were aggravated felonies under then-controlling BIA precedent.
He did not appeal the removal order, was removed to Mexico, later reentered the U.S. illegally, and was charged in 2011 with illegal reentry under 8 U.S.C. § 1326(a), (b)(1).
After the Supreme Court in Lopez v. Gonzales (2006) held mere possession is not an aggravated felony, Alegria-Saldana sought to dismiss his § 1326 indictment by collaterally attacking the prior removal order under 8 U.S.C. § 1326(d).
§ 1326(d) requires a defendant to show: (1) exhaustion of administrative remedies, (2) unavailability of judicial review, and (3) that the removal order was fundamentally unfair.
The district court denied dismissal, finding Alegria-Saldana failed to exhaust (he did not appeal or move to reopen), did not show judicial review was unavailable (habeas was practicable), and could not show fundamental unfairness because there is no due-process right to discretionary relief under the governing precedent.
The Seventh Circuit affirmed, holding Alegria-Saldana did not meet the statutory requirements to collaterally attack his removal order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exhaustion of administrative remedies	Alegria-Saldana says he reasonably relied on counsel’s reservation of the right to appeal and believed counsel would file an appeal	Government says he was informed of appeal rights, never appealed or asked counsel to do so, and did not move to reopen	Held: No exhaustion—failure to appeal or move to reopen defeats collateral attack
Availability of judicial review	Alegria-Saldana contends habeas relief was practically unavailable given only two months before removal and lack of legal knowledge	Government says habeas was available and two months is sufficient to seek judicial review	Held: Judicial review was available; claimant did not meet burden to show it was unavailable
Fundamental unfairness of removal order	Alegria-Saldana argues the aggravated-felony determination (later rejected by Lopez) made the order fundamentally unfair by denying discretionary relief	Government argues denial of opportunity for discretionary relief, under controlling law at the time, does not violate due process and claimant shows no prejudice	Held: Not fundamentally unfair—no due-process right to discretionary relief and no showing of reasonable probability of relief
Prejudice from counsel’s conduct	Alegria-Saldana points to alleged ineffective assistance or counsel’s conduct to excuse non-exhaustion	Government notes counsel never promised appeal; remedies (motion to reopen / Lozada procedures) were available	Held: Counsel’s conduct did not excuse failure to exhaust; claimant did not pursue available administrative remedies

Key Cases Cited

Lopez v. Gonzales, 549 U.S. 47 (Sup. Ct. 2006) (mere possession of a controlled substance is not an aggravated felony under immigration law)
Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006) (Illinois felony possession conviction did not bar discretionary relief)
United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) (no collateral attack when alien and counsel were informed of appeal right but did not appeal)
United States v. Arita-Campos, 607 F.3d 487 (7th Cir. 2010) (availability of habeas and motion to reopen; burden to show unavailability)
United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir. 2010) (failure to appeal forecloses collateral attack)
United States v. Cerna, 603 F.3d 32 (2d Cir. 2010) (excusing exhaustion where counsel promised then failed to file appeal)
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (presumption that aliens can pursue generally available remedies)
Dimenski v. INS, 275 F.3d 574 (7th Cir. 2001) (knowledge of the law is generally presumed)
United States v. Daley, 702 F.3d 96 (2d Cir. 2012) (requires showing reasonable probability of relief to prove prejudice for denial of discretionary relief)
United States v. Lara-Unzueta, 735 F.3d 954 (7th Cir. 2013) (discusses whether all § 1326(d) elements must be met for collateral attack)