United States v. Villanueva-Diaz, 2011 U.S. App. LEXIS 3866

Villanueva-Diaz, a Mexican national, was admitted as a lawful permanent resident in 1975.
In 1997 he pled guilty to a third Texas DWI offense and received a nine-year sentence; later in 1997 he violated supervision terms and served the term.
Removal proceedings began in June 1998 based on the DWI conviction qualifying as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
An IJ ordered removal to Mexico and the BIA affirmed on November 4, 1999.
Villanueva-Diaz was removed to Mexico in November 2000.
He re-entered the United States unlawfully in 2009 and was charged with unlawful reentry under 8 U.S.C. § 1326.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is moot.	Villanueva-Diaz contends collateral effects keep the appeal live.	Government argues mootness since release period ended.	Not moot; collateral consequences preserve the appeal.
Exhaustion under § 1326(d).	Exhaustion not required because motion to reopen was unavailable after removal.	Exhaustion required to challenge removal order.	Exhaustion not required; § 1326(d)(1) inapplicable here.
Fundamental unfairness due to lack of notice of BIA decision.	Attorney's neglect deprived Villanueva-Diaz of due process.	Notice to counsel is adequate; no fundamental unfairness.	No fundamental unfairness; notice to counsel sufficed.
Prejudice from attorney neglect.	Even with notice failure, there was likely prejudice in not appealing.	Prejudice speculative; hindsight defeats claim.	No prejudice; speculative and unlikely but not proven.

Sibron v. New York, 392 U.S. 40 (1968) (due process and collateral consequences relevance)
Spencer v. Kemna, 523 U.S. 1 (1998) (mootness and collateral consequences doctrine)
Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (due process for removal proceedings exceptional review)
Lopez-Vasquez v. United States, 227 F.3d 476 (5th Cir. 2000) (fundamental unfairness framework for collateral attack)
Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006) (assesment of ineffective assistance in immigration context)
Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001) (addressed due process and attorney conduct impact)
Barthold v. INS, 517 F.2d 689 (5th Cir. 1975) (ineffective assistance and fairness discussions)
Paul v. INS, 521 F.2d 194 (5th Cir. 1975) (due process and ineffective assistance considerations)
Chapa-Garza v. United States, 243 F.3d 921 (5th Cir. 2001) (degermination of aggravated felony status for Texas DWI)
Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (agency/attorney act imputed to client)
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010) (agency and notice principles in immigration context)
Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004) (concrete disadvantage to avoid mootness in admissibility)