UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELISEO MARTINEZ LOPEZ, a/k/a Eliseco Martinez Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00206-MOC-DSC-1)
Submitted: July 28, 2016 Decided: August 10, 2016
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Rob Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE & GREENE, PLLC,
Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose,
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eliseo Martinez Lopez (“Martinez”) appeals his conviction for
unlawful reentry after removal following a conviction for an
aggravated felony, 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 following an order of
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 seek relief against the order; (2) the deportation
proceedings at which the order was issued improperly deprived [him]
of the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.” 8 U.S.C. § 1326(d) (2012); see
United States v. Lopez-Collazo, __ F.3d __, __, No. 15-4312, 2016
WL 3080431, at *3 (4th Cir. June 1, 2016). Because these
conditions are listed in the conjunctive, a defendant must show
all three in order to prevail. Id. “However, if the defendant
satisfies all three requirements, the illegal reentry charge must
be dismissed as a matter of law.” United States v. El Shami, 434
F.3d 659, 663 (4th Cir. 2005). We conduct a de novo review of the
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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); see Lopez-Collazo, __ F.3d at __, 2016 WL
3080431, at *3 (acknowledging that this approach has been “embraced
by some appellate courts”). 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.
Contrary to Martinez’s arguments on appeal, the relevant
regulations permitted him to stipulate to an order of removal and
waive his right to appeal without receiving further advisals from
an immigration judge. See 8 U.S.C. § 1229a(d) (2012); 8 C.F.R.
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§ 1003.25(b) (2016). Additionally, based on our thorough review
of the record in this case, we conclude that Martinez’s waiver was
valid and that he knowingly and voluntarily waived his right to a
hearing before an immigration judge and his right to appeal his
order of removal. Accordingly, Martinez failed to exhaust
available administrative remedies to challenge his removal order
and is thus barred from collaterally attacking the order under 8
U.S.C. § 1326(d). *
We therefore uphold the district court’s denial of Martinez’s
motion to dismiss the indictment and affirm the criminal 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
*Because Martinez fails to demonstrate that his waiver was
invalid, he cannot establish the first two requirements of 8 U.S.C.
§ 1326(d) — that he exhausted his administrative remedies and that
the proceedings at which his removal order was issued improperly
deprived him of the opportunity for judicial review. Accordingly,
we need not consider whether the entry of Martinez’s removal order
was fundamentally unfair. See § 1326(d)(3).
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