RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 20-1077
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v. │
│
NOE FLORES-PEREZ, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:19-cr-20004-1—David M. Lawson, District Judge.
Decided and Filed: June 16, 2021
Before: CLAY, READLER, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Colleen P. Fitzharris, OFFICE OF THE FEDERAL COMMUNITY DEFENDER,
Detroit, Michigan, for Appellant. Kevin M. Mulcahy, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Noe Flores-Perez was charged with illegal reentry
following his deportation and subsequent return to the United States. In an effort to defeat the
reentry charge, Flores-Perez collaterally attacks his initial removal order, alleging that the order
was invalid due to a lack of notice. The district court rejected Flores-Perez’s argument because
he failed to exhaust administrative remedies. We agree and affirm on that ground.
No. 20-1077 United States v. Flores-Perez Page 2
BACKGROUND
As Flores-Perez was leaving a Michigan courthouse in 2001, immigration officials
detained him and transported him to a nearby immigration office on the belief that Flores-Perez
was in the country illegally. Flores-Perez provided immigration officials with two forms of
state-issued identification, each of which contained his address. Officials then served
Flores-Perez with a Notice to Appear, or NTA. The NTA alleged that Flores-Perez was a citizen
of Mexico who had illegally entered the United States approximately 16 months earlier.
All of this, it seems, is relatively standard fare in the removal process. Unfortunately,
what happened next is not. Although possessing Flores-Perez’s identification cards listing his
correct address—Apartment 311—immigration officials wrote an incorrect address—Apartment
132—on the NTA. Nonetheless, Flores-Perez signed the NTA with the incorrect address,
attesting to its accuracy. No interpreter assisted with the initial processing. As Flores-Perez left
the immigration office, however, a Spanish-speaker gave him a number of relevant documents,
including a copy of the NTA he had signed, and told Flores-Perez in Spanish that he would
receive another document in the mail from immigration officials.
In April 2002, the immigration court sent a Notice of Hearing to the address on the NTA.
The Notice of Hearing stated that Flores-Perez’s removal hearing would occur on January 22,
2003. The Notice was returned to the immigration court, however, because “no such number”
existed at the apartment complex. When Flores-Perez did not attend the hearing, the
immigration judge proceeded in absentia and ordered Flores-Perez removed. The removal order
was mailed to the same address as the Notice of Hearing, and, like the Notice, was also returned
to sender.
In 2009, immigration officials arrested Flores-Perez in Michigan. In accordance with his
2003 removal order, Flores-Perez was deported a few days later. Flores-Perez alleges in an
affidavit that he tried to find an immigration lawyer following his arrest but failed to do so in
advance of his deportation.
Flores-Perez unlawfully returned to the United States later that year. Roughly nine years
later, in December 2018, he was arrested after he was caught attempting to break into an
No. 20-1077 United States v. Flores-Perez Page 3
apartment in suburban Detroit. Ten days later, immigration officers arrested Flores-Perez for
reentry after deportation in violation of 8 U.S.C. § 1326(a), and a federal grand jury indicted him
on the charge. Before the district court, Flores-Perez made a number of arguments as to why his
indictment should be dismissed, each of which was premised on the notion that he did not
receive adequate notice of his 2003 removal hearing. The district court denied the motions.
Flores-Perez pleaded guilty, preserving his right to appeal the denial of his motions to dismiss.
This appeal followed.
ANALYSIS
We review de novo the district court’s “denial of a motion to dismiss an indictment and a
collateral attack upon a prior removal order underlying a conviction for unlawful reentry.”
United States v. Silvestre-Gregorio, 983 F.3d 848, 851 (6th Cir. 2020) (quoting United States v.
Zuniga-Guerrero, 460 F.3d 733, 735 (6th Cir. 2006)). We review any factual findings for clear
error. Id.
1. Flores-Perez brings a collateral attack to challenge the validity of, and undo, his 2003
removal order. Were he to succeed, Flores-Perez would overcome his charge of unlawful
reentry. See United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619–20 (2021). The task
before him, however, is not an easy one. See United States v. Parrales-Guzman, 922 F.3d 706,
707 (5th Cir. 2019) (noting that 8 U.S.C. § 1326(d) captures “Congress’s mandate that collateral
review in the course of re-entry prosecutions be available only in a narrow set of
circumstances”). To prevail, Flores-Perez must show that “(1) [he] exhausted any administrative
remedies that may have been available to seek relief against the [underlying removal] 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.”
Palomar-Santiago, 141 S. Ct. at 1619–20 (quoting 8 U.S.C. § 1326(d)). These requirements are
conjunctive, meaning Flores-Perez’s failure to satisfy any one of them defeats his collateral
challenge. Id. at 1620–21.
The Supreme Court’s recent decision in United States v. Palomar-Santiago confirms the
mandatory nature of § 1326(d)’s conditions. See id. Palomar-Santiago, a Mexican national with
No. 20-1077 United States v. Flores-Perez Page 4
permanent resident status, was convicted for felony driving under the influence (DUI), and
ultimately was ordered removed for committing a “crime of violence.” Id. at 1620. Palomar-
Santiago later returned to the United States. See id. When he eventually was discovered, he was
indicted for unlawful reentry after removal. Id. Palomar-Santiago responded by collaterally
challenging his initial removal order. Id. He did so on the basis that, between his removal and
indictment, the Supreme Court held that a DUI offense cannot qualify as a crime of violence. Id.
(quoting Leocal v. Ashcroft, 543 U.S. 1, 11 (2004)). Palomar-Santiago brought his collateral
challenge, however, without first pursuing administrative remedies to challenge his underlying
removal order. Id. Despite that omission, the district court awarded Palomar-Santiago collateral
relief—a decision that the Ninth Circuit later affirmed—on the basis that the absence of a
removable offense excused Palomar-Santiago from satisfying the first two elements of
§ 1326(d). Id. The Supreme Court granted certiorari.
The Supreme Court reversed. It read § 1326(d) not to permit “extrastatutory
exception[s].” Id. at 1621. Rather, the statute’s conjunctive and mandatory language, when read
together, prohibits a court from excusing a failure to exhaust, as “the substantive validity of the
removal order is quite distinct from whether the noncitizen exhausted his administrative
remedies . . . or was deprived of the opportunity for judicial review . . . .” Id. In other words,
“[t]he immigration judge’s error on the merits does not excuse the noncitizen’s failure to comply
with a mandatory exhaustion requirement if further administrative review, and then judicial
review if necessary, could fix that very error.” Id.
Palomar-Santiago forecloses relief for Flores-Perez. Flores-Perez failed to challenge his
removal order in any respect until filing this collateral challenge, nearly twenty years after the
order was issued, and after Flores-Perez was deported due to the order. And he has never sought
to challenge the order through administrative channels. As a result, he has failed to satisfy the
first element of a collateral attack—administrative exhaustion. See id. at 1619 (explaining that
noncitizens facing removal can raise defenses at removal hearings and, if unsuccessful, can
appeal to the Board of Immigration Appeals); see also 8 C.F.R. § 1240.15 (permitting appeals
from immigration judges to the Board of Immigration Appeals except from removal orders
entered in absentia); 8 U.S.C. § 1229a(b)(5)(C) (establishing when a noncitizen may move to
No. 20-1077 United States v. Flores-Perez Page 5
reopen a removal order entered in absentia). Under Palomar-Santiago, that shortcoming
resolves this dispute in favor of the United States. 141 S. Ct. at 1620–22.
2. Flores-Perez, to his credit, all but concedes that he has not pursued administrative
remedies. Yet he asks us to excuse that failure. Essentially collapsing all three collateral attack
inquiries into one, Flores-Perez asserts that the lack of sufficient notice of his removal
proceeding effectively made any administrative remedies unavailable to him, improperly
deprived him of the opportunity for any judicial remedy, and was fundamentally unfair, in that
he suffered a prejudicial due process injury. In effect, Flores-Perez asks us to excuse § 1326(d)’s
exhaustion requirement due to an alleged procedural flaw in his removal process. That position,
however, is almost identical to the one rejected in Palomar-Santiago. See 141 S. Ct. at 1621.
Applying that holding here, even if Flores-Perez’s removal was flawed, that error “does not
excuse [Flores-Perez]’s failure to comply with a mandatory exhaustion requirement” because
“administrative review, and then judicial review if necessary, could fix [the] error,” if any. Id.
The bottom line is that Flores-Perez could have pursued administrative remedies, but chose
otherwise. See 8 U.S.C. § 1229a(b)(5)(C)(ii) (establishing that a noncitizen may move to reopen
a removal order entered in absentia “at any time” based on a demonstrated lack of proper notice).
Flores-Perez next seeks to excuse his failure to comply with § 1326(d) on the purported
basis that he only had to exhaust remedies that were “available” to him and that the flawed notice
“severely limited” the available remedies. But the relevant statutory scheme expressly
contemplates how a noncitizen can proceed in the event of insufficient notice. See 8 U.S.C.
§ 1229a(b)(5)(C)(ii). Palomar-Santiago, it bears noting, similarly argued that “further
administrative review of a removal order is not ‘available’ when an immigration
judge erroneously informs a noncitizen that his prior conviction renders him removable.”
Palomar-Santiago, 141 S. Ct. at 1621. To be sure, in the prison litigation context, there can be
“circumstances in which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. (quoting Ross v. Blake, 578 U.S. 632, 643 (2016)). But
nothing in that jurisprudential realm “suggests that the substantive complexity of an affirmative
defense can alone render further review of an adverse decision ‘unavailable.’” Id.
No. 20-1077 United States v. Flores-Perez Page 6
To sum up, all three conditions of a collateral attack must be satisfied to invalidate a
removal order. Id. at 1620–21. And here, Flores-Perez failed to exhaust his administrative
remedies—even with plain notice of the removal order as reflected by his 2009 deportation.
With Flores-Perez having failed to avail himself of the administrative remedies available to him,
allowing him to invalidate his removal order in this collateral setting would be “incompatible
with the text of § 1326(d).” Id. at 1620.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.