United States v. Jose Hernandez-Lopez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4609

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JOSE SANTIAGO HERNANDEZ-LOPEZ, a/k/a Jose Santiago
Hernandez, a/k/a Santiago Hernandez, a/k/a Jose Santiago,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cr-00016-CMH-1)

Submitted: May 19, 2015 Decided: May 26, 2015

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Eric
Mothander, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jose Santiago Hernandez-Lopez appeals his conviction for

unlawful reentry after removal by an aggravated felon, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2012). On appeal, he

challenges the district court’s denial of his motion to dismiss

the indictment, arguing that he satisfied the three requirements

for a collateral attack on his prior removal order set forth in

8 U.S.C. § 1326(d) (2012). Finding no error, we affirm.

In a prosecution for illegal reentry after removal, a

defendant may collaterally attack the removal order that

constitutes an element of the offense if he can show: (1) he

exhausted any administrative remedies that may have been

available to challenge the order of removal; (2) he was

effectively deprived of his right to judicial review of the

removal order; and (3) the removal proceedings were

fundamentally unfair. 8 U.S.C. § 1326(d) (2012); see United

States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v.

El Shami, 434 F.3d 659, 663 (4th Cir. 2005). A defendant must

satisfy all three of the above requirements to prevail. United

States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), overruled

on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006).

“However, if the defendant satisfies all three requirements, the

illegal reentry charge must be dismissed as a matter of law.”

El Shami, 434 F.3d at 663. This court conducts a de novo review

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of the district court’s denial of a motion to dismiss an

indictment under 8 U.S.C. § 1326(d). Id.

Courts have generally held that “the exhaustion requirement

[of § 1326(d)(1)] must be excused where an alien’s failure to

exhaust results from an invalid waiver of the right to an

administrative appeal.” United States v. Sosa, 387 F.3d 131,

136 (2d Cir. 2004); accord United States v. Reyes-Bonilla, 671

F.3d 1036, 1043 (9th Cir. 2012) (“If Reyes did not validly waive

his right of appeal, the first two requirements under § 1326(d)

will be satisfied.”); United States v. Martinez-Rocha, 337 F.3d

566, 569 (6th Cir. 2003). If, however, “an alien knowingly and

voluntarily waives his right to appeal an order of deportation,

then his failure to exhaust administrative remedies will bar

collateral attack on the order in a subsequent illegal reentry

prosecution under § 1326(d).” United States v. Cerna, 603 F.3d

32, 38 (2d Cir. 2010).

After conducting a de novo review, we find no error in the

district court’s denial of the motion to dismiss the indictment.

The Notice to Appear and hearing notice served on

Hernandez-Lopez indicate that he was provided with a list of pro

bono legal counsel, see 8 C.F.R. § 1240.10(a)(2), (3) (2014),

and his order of removal indicates that he waived appeal.

Hernandez-Lopez contends that the record does not contain a copy

of the offered services and that thus it is not clear that such

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list was actually provided to him. Such error, he asserts,

excuses his failure to exhaust and renders his proceedings

fundamentally unfair. Upon review, we find no error in the

district court’s conclusion that Hernandez-Lopez failed to

exhaust administrative remedies available to challenge his

removal order and is thus barred from collaterally attacking the

order under § 1326(d). Further, Hernandez-Lopez’s assertion

that his removal proceedings were fundamentally unfair is

without merit.

We accordingly affirm the district court’s judgment. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED