4 F.4th 496
7th Cir.2021Background
- Oscar Calan-Montiel, a Mexican national, entered the U.S. unlawfully, was apprehended in 2010, and a removal order was entered in absentia after he did not appear.
- He was removed to Mexico in 2012, later reentered the U.S. clandestinely and was caught in 2019.
- Prosecuted under 8 U.S.C. §1326 for unlawful reentry, he pleaded guilty but reserved the right to appeal the validity of the 2010 removal order.
- Calan-Montiel argued the 2010 Notice to Appear (NTA) violated Pereira/Niz-Chavez by failing to include the initial hearing date in a single document, rendering the immigration court without jurisdiction.
- He did not exhaust administrative remedies, seek reopening, or obtain judicial review of the removal order; he also had actual knowledge of the order but returned to the U.S. stealthily.
- The Seventh Circuit affirmed conviction and sentence (~16 months), holding the one-document NTA rule is a claims-processing requirement and that Calan-Montiel fails §1326(d)’s requirements for collateral attack.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Pereira/Niz-Chavez one-document NTA requirement jurisdictional or a claims-processing rule? | Calan-Montiel: noncompliance divests agency of jurisdiction; removal order invalid. | U.S.: Ortiz-Santiago treats §1229(a)(1) as claims-processing; defects can be waived/forfeited. | Claims-processing rule; not jurisdictional. |
| Does omission of the hearing date make the removal proceeding "fundamentally unfair" under §1326(d)(3)? | Calan-Montiel: omission rendered proceedings fundamentally unfair. | U.S.: Technical errors do not rise to fundamental unfairness; Pereira/Niz-Chavez do not equate to fundamental unfairness. | Not fundamentally unfair; paperwork error insufficient. |
| Can failure to satisfy §1326(d)(1)–(2) be excused so only (d)(3) matters? | Calan-Montiel: asks court to excuse exhaustion/noncompliance and focus on (d)(3). | U.S.: Palomar‑Santiago requires satisfying all three §1326(d) prongs; no equitable exceptions. | All three §1326(d) requirements are mandatory; cannot be excused. |
| Did Calan-Montiel present facts showing lack of notice or inability to seek reopening/judicial review? | Calan-Montiel: agency never furnished a hearing date; he lacked notice. | U.S.: He had actual knowledge of the removal order and failed to seek reopening or review; multiple possible reasons for nonattendance. | He had actual knowledge and did not pursue reopening or review; §1326(d) not satisfied. |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA must contain required information; one-document rule articulated)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (reinforces Pereira’s one-document requirement)
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (treats §1229(a)(1) as a claims-processing rule)
- Chen v. Barr, 960 F.3d 448 (7th Cir. 2020) (applies Ortiz‑Santiago waiver/forfeiture analysis)
- United States v. Manriquez-Alvarado, 953 F.3d 511 (7th Cir. 2020) (technical NTA errors do not establish fundamental unfairness under §1326(d)(3))
- United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021) (an alien must satisfy all three §1326(d) requirements; no equitable exceptions)
- United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. 2020) (failure to seek reopening or review undermines collateral-attack claim)