80 F.4th 910
9th Cir.2023Background
- Portillo-Gonzalez illegally entered the U.S. in 2000, was placed in removal proceedings that day, and the IJ ordered him removed after he conceded removability.
- At the 2000 hearing the IJ told him he was ineligible for voluntary departure unless he had $5 for travel; Portillo-Gonzalez says that advice was incorrect under controlling BIA precedent and a superseded regulation.
- The 2000 removal was later reinstated multiple times as the predicate for subsequent removals; Portillo-Gonzalez reentered the U.S. repeatedly and accrued multiple convictions, culminating in a §1326 prosecution for unlawful reentry (predicate removal alleged from 2017 but later superseded to 2012 under plea agreement).
- He moved to dismiss the §1326 indictment arguing the 2000 removal was invalid/fundamentally unfair because the IJ misadvised him about voluntary departure and that that error satisfied §1326(d)’s exhaustion and deprivation prongs.
- The district court denied the motion; after the Supreme Court decided Palomar‑Santiago (141 S. Ct. 1615 (2021)), the court again rejected Portillo‑Gonzalez’s arguments and he pleaded guilty while preserving appeal rights.
- The Ninth Circuit affirmed, holding that Palomar‑Santiago requires strict satisfaction of all three §1326(d) elements and that IJ error did not automatically satisfy the exhaustion and judicial‑review prongs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ’s erroneous advice about voluntary departure rendered the 2000 removal “fundamentally unfair” under §1326(d)(3) | Portillo: IJ’s misstatement violated due process and made the removal fundamentally unfair. | Gov: Even if unfair, that alone cannot excuse compliance with §1326(d)’s other requirements. | Court assumed arguendo the removal could be fundamentally unfair but declined to decide definitively; ruled that even if (d)(3) were met, that does not auto‑satisfy (d)(1)–(2). |
| Whether the IJ’s error “effectively satisfies” §1326(d)(1)–(2) (exhaustion and deprivation of judicial review) | Portillo: Misadvice meant no meaningful opportunity to appeal, so he exhausted no remedies and was deprived of judicial review. | Gov: Palomar‑Santiago requires exhaustion and opportunity for review; IJ error doesn’t make appeals unavailable. | Court held Palomar‑Santiago forecloses automatic satisfaction; substantive or procedural IJ error does not by itself render administrative review unavailable, so (d)(1)–(2) were not satisfied. |
| Whether Ninth Circuit precedent excusing the first two §1326(d) prongs survives Palomar‑Santiago | Portillo: Prior Ninth Circuit cases allowed IJ errors to excuse or automatically satisfy the first two prongs. | Gov: Palomar‑Santiago abrogated that line of Ninth Circuit authority; all three prongs are mandatory. | Court held Palomar‑Santiago abrogated the Ninth Circuit rule; defendants must satisfy all three §1326(d) requirements. |
| Whether the indictment should be dismissed | Portillo: Dismiss because the predicate removal is invalid. | Gov: Dismissal improper because §1326(d) requirements not met. | Court affirmed denial of the motion to dismiss and upheld the conviction. |
Key Cases Cited
- United States v. Palomar‑Santiago, 141 S. Ct. 1615 (2021) (held all three §1326(d) requirements are mandatory and rejected Ninth Circuit excusal of the first two prongs)
- United States v. Mendoza‑Lopez, 481 U.S. 828 (1987) (groundwork for collateral‑challenge protections where removal proceedings eliminated meaningful judicial review)
- Ross v. Blake, 578 U.S. 632 (2016) (explains when administrative remedies are not "available" for exhaustion purposes)
- United States v. Ochoa, 861 F.3d 1010 (9th Cir.) (Ninth Circuit precedent excusing first two prongs; treated as abrogated by Palomar‑Santiago)
- United States v. Gonzalez‑Villalobos, 724 F.3d 1125 (9th Cir. 2013) (held IJ misinformation can mean no meaningful opportunity to appeal)
- United States v. Aguilera‑Rios, 769 F.3d 626 (9th Cir. 2014) (held substantive invalidity of removal can render order fundamentally unfair)
- United States v. Rojas‑Pedroza, 716 F.3d 1253 (9th Cir. 2013) (explains satisfying §1326(d) when IJ failed to inform about relief and defendant had plausible grounds)