United States v. Castillo-Martinez

United States Court of Appeals
For the First Circuit

No. 19-1971

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS LEONARDO CASTILLO-MARTINEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Barron, Circuit Judges.

Zainabu Rumala, Assistant Federal Public Defender, for
appellant.
Karen Eisenstadt, Assistant United States Attorney, with whom
Alexia R. De Vincentis, Assistant United States Attorney, and
Andrew E. Lelling, United States Attorney, were on brief, for
appellee.

October 27, 2021
 LYNCH, Circuit Judge. This case concerns the

interpretation of a statutory bar in 8 U.S.C. § 1326(d) precluding

certain collateral attacks in criminal proceedings. Appellant

Jesus Leonardo Castillo-Martinez falls within the ambit of those

limitations for the reasons stated below. We affirm the district

court's denial of his motion to dismiss the criminal proceedings

against him.

Castillo-Martinez was removed to the Dominican Republic

in April 2013 after he was convicted in Massachusetts state court

of illegally distributing marijuana and in New Hampshire state

court of trafficking OxyContin. He illegally returned to the

United States and was arrested on August 20, 2016, on a Florida

fugitive warrant for a new controlled substances offense committed

in Florida. He was removed again on November 1, 2016.

On June 23, 2018, after illegally reentering the United

States again, he was arrested in Massachusetts once more on state

heroin trafficking charges. He was then federally indicted for

unlawfully reentering the United States in violation of 8 U.S.C.

§ 1326(a), which provides that "any alien who (1) has been . . .

deported, or removed or has departed the United States while an

order of exclusion, deportation, or removal is outstanding and

thereafter (2) enters, attempts to enter, or is at any time found

in, the United States . . . shall be fined under Title 18, or

imprisoned not more than 2 years, or both."

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 Castillo-Martinez moved to dismiss the indictment under

8 U.S.C. § 1326(d), making two arguments that the element of

unlawful reentry was not satisfied because his original removal

order was not valid. First, he argued that his original removal

order in 2012 was defective because the Notice to Appear ("NTA")

he received did not include the time and place of his hearing.

Second, he argued that his removal order in 2012 was based on the

classification of his marijuana conviction as an aggravated

felony, a classification to which he said his immigration counsel

provided ineffective assistance by not objecting. He then argued

that the classification was improper under the Supreme Court's

later decision in Moncrieffe v. Holder, 569 U.S. 184 (2013), issued

after his removal order. As a result, he argued, the original

removal order must be declared invalid, and the criminal charges

for illegal reentry must be dismissed. The district court denied

Castillo-Martinez's motion. United States v. Castillo-Martinez,

378 F. Supp. 3d 46, 55 (D. Mass. 2019).

We affirm.

I.

Castillo-Martinez was born in the Dominican Republic in

1973 and was admitted to the United States as a lawful permanent

resident in 1981. In 1996, he was convicted of violating Mass.

Gen. Laws ch. 94C, § 32C by "knowingly or intentionally

manufactur[ing], distribut[ing], dispens[ing] or cultivat[ing]"

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marijuana, a Class D substance under Massachusetts law. For this

crime, he received a suspended sentence and probation. See id.

§§ 31, 32C. He remained in the United States.

In February 2011, Castillo-Martinez was indicted by a

New Hampshire grand jury for conspiring to sell 15,000 tablets of

OxyContin for approximately $272,000 in violation of N.H. Rev.

Stat. Ann. § 318-B:2(I). While he was awaiting trial, U.S.

Immigration and Customs Enforcement ("ICE") lodged a detainer

against him. He was later convicted of the conspiracy charge in

June 2012 and received a suspended sentence and probation.1

Shortly after Castillo-Martinez's OxyContin conviction,

the Department of Homeland Security ("DHS") served him with an NTA

alleging that he was removable from the United States pursuant to

8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an

aggravated felony. The NTA was based on Castillo-Martinez's 1996

marijuana conviction and did not state his OxyContin conviction as

its basis. The NTA did not state a specific date or time for

Castillo-Martinez's hearing and noted that they were "to be set."

Castillo-Martinez, acting through counsel, conceded

removability as alleged in the NTA under the law of the First

Circuit, which held that his marijuana conviction was an aggravated

1 Castillo-Martinez received a 576-day credit toward his
sentence for time served. That 576-day portion of his sentence
was not suspended.

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felony. Castillo-Martinez made the counseled choice to apply for

deferral of removal under the Convention Against Torture ("CAT").

He submitted affidavits in support of his CAT petition and

testified at an immigration hearing. On November 1, 2012, an

immigration judge ("IJ") denied him CAT relief and ordered that he

be removed to the Dominican Republic.2 Castillo-Martinez

unsuccessfully appealed this decision to the Board of Immigration

Appeals ("BIA") on March 13, 2013, and was removed to the Dominican

Republic on April 16, 2013. He did not challenge the BIA's

decision by seeking a petition for review.

Castillo-Martinez returned to the United States at some

point before April 28, 2016, when he was arrested in Florida on

another controlled substance charge. He fled Florida, and was

arrested on August 20, 2016, in Massachusetts pursuant to a

"Fugitive from Justice" warrant from Florida and was taken into

administrative custody by ICE. His removal order was reinstated,

and, on November 1, 2016, he was removed to the Dominican Republic.

2 The IJ issued a removal order for Castillo-Martinez,
which resulted in the execution of a "warrant of
removal/deportation." "We use the terms 'removal' and
'deportation' interchangeably in this opinion." United States v.
Luna, 436 F.3d 312, 314 n.1 (1st Cir. 2006). While 8 U.S.C.
§ 1326(d) refers to deportation orders, it encompasses the change
in name to removal orders. See United States v. Palomar-Santiago,
141 S. Ct. 1615, 1619 (2021) (applying 8 U.S.C. § 1326(d) to a
removal order); Padilla v. Kentucky, 559 U.S. 356, 364 n.6 (2010)
("The changes to our immigration law have also involved a change
in nomenclature; the statutory text now uses the term 'removal'
rather than 'deportation.'").

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 Castillo-Martinez returned to the United States again.

On June 23, 2018, he was arrested in Massachusetts and charged

with trafficking heroin. On August 2, 2018, he was federally

indicted for unlawfully reentering the United States in violation

of 8 U.S.C. § 1326(a).

In February 2019, Castillo-Martinez moved to dismiss the

unlawful reentry charge. He made two arguments that the unlawful

reentry element of 8 U.S.C. § 1326(a) was not met because there

was no valid prior removal order. His first argument was that

there was no valid prior removal order because under the Supreme

Court's decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018),

the fact that the NTA did not include a specific date or time

deprived the immigration court of jurisdiction and prevented it

from ordering his removal. His second argument was that there was

no valid prior removal order based on the Supreme Court's divided

decision in Moncrieffe, issued shortly after his removal. He

argued that under Moncrieffe, his marijuana conviction could not

serve as the basis for his 2012 removal order because that

conviction was not an aggravated felony, and further that his

counsel's failure to object on this basis amounted to ineffective

assistance.

The government responded to Castillo-Martinez's two

arguments. As to the second argument, the government relied on

the statutory limitations on collateral attacks set forth in 8

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U.S.C. § 1326(d) and specifically argued that he did not fall

within any of the narrow exceptions that would have permitted a

collateral attack. Subsection 1326(d) states that in a criminal

proceeding under 8 U.S.C. § 1326(a), "an alien may not challenge

the validity of [a] deportation order . . . unless" the alien makes

three showings: (1) "the alien 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 the alien of the opportunity for

judicial review"; and (3) "the entry of the order was fundamentally

unfair." 8 U.S.C. § 1326(d). The government argued that Castillo-

Martinez failed to exhaust his administrative remedies, that he

was not denied the opportunity for judicial review, and that the

removal proceedings were not fundamentally unfair.

The district court denied the motion. As to Castillo-

Martinez's first argument, relying on case law from other courts

of appeals, it held that the IJ had jurisdiction to issue a removal

order "[b]ecause Castillo-Martinez was served with an NTA

containing all of the required information and was presumably

served a separate Notice of Hearing informing him of the time and

place of his removal hearing (given that he actually appeared at

that hearing)." Castillo-Martinez, 378 F. Supp. 3d at 53; see

also Santos-Santos v. Barr, 917 F.3d 486, 490 (6th Cir. 2019);

Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019).

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 As to his second argument, the district court held that

Castillo-Martinez had not made the required showings necessary

under 8 U.S.C. § 1326(d) to collaterally attack the validity of

his original removal order. Castillo-Martinez, 378 F. Supp. 3d at

54. First, because Castillo-Martinez "concede[d] that he failed

to exhaust his administrative remedies and was not denied an

opportunity for judicial review," the court held that he had not

satisfied the first two § 1326(d) requirements. See id.; 8 U.S.C.

§ 1326(d)(1)-(2). Next, the court held that even if Castillo-

Martinez could be excused from meeting some of § 1326(d)'s

requirements if he could show his counsel had been ineffective, he

still could not prevail because he had not shown that his counsel's

performance was deficient or that he was prejudiced by either his

counsel's actions or the deportation order. Castillo-Martinez,

378 F. Supp. 3d at 54-55; see also 8 U.S.C. § 1326(d)(3) (requiring

a showing that "the entry of the [deportation] order was

fundamentally unfair" to collaterally attack it in a criminal

proceeding).

Castillo-Martinez pleaded guilty to the unlawful reentry

charge. He was sentenced to time served and a three-year term of

supervised release. He reserved the right to appeal the court's

denial of his motion to dismiss and timely exercised that right.

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 II.

We review de novo the legal conclusions underlying the

district court's denial of Castillo-Martinez's motion to dismiss.

See United States v. Mendoza, 963 F.3d 158, 161 (1st Cir. 2020),

cert. denied sub nom. Mendoza-Sanchez v. United States, 141 S. Ct.

834 (2020). We review its factual findings for clear error and

its "ultimate ruling" for abuse of discretion. See id. (quoting

United States v. Doe, 741 F.3d 217, 226 (1st Cir. 2013)). On

appeal, Castillo-Martinez renews the two main arguments he made to

the district court.

A.

Castillo-Martinez's first argument, based on Pereira,

has already been considered and rejected by the First Circuit since

the district court's ruling. See Mendoza, 963 F.3d at 161 ("We

have already squarely rejected the contention that the omission of

the initial hearing date and time in a notice to appear deprives

the immigration court of jurisdiction over a removal

proceeding."); Goncalves Pontes v. Barr, 938 F.3d 1, 6-7 (1st Cir.

2019).3 It fails for this reason.

3 Castillo-Martinez submitted a Rule 28(j) letter saying
that the Supreme Court's recent decision in Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021), supported his argument. Niz-Chavez dealt
with whether an NTA that did not include certain information
triggered the Illegal Immigration Reform and Immigrant
Responsibility Act's stop-time rule. See id. at 1479. The Court
described a "notice to appear" in a removal proceeding as a single
"case-initiating document," id. at 1482, but it did not suggest

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 B.

Castillo-Martinez's second argument is based on

Moncrieffe and his contention that he satisfies the conditions

under § 1326(d), which would permit him to collaterally attack his

prior removal. Subsection 1326(d) starts with a prohibition on

such collateral attacks, stating that in a § 1326(a) criminal

proceeding, "an alien may not challenge the validity of [a]

deportation order." The subsection then sets forth an exception

in an "unless" clause, providing that an alien may not bring a

collateral attack unless the alien satisfies three conditions:

(1) "the alien 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 the alien of the opportunity for judicial review"; and

(3) "the entry of the order was fundamentally unfair." 8 U.S.C.

§ 1326(d).4

that a single-document NTA is also required to establish
jurisdiction. Thus, we remain bound by our holding in Mendoza
that "jurisdiction of an immigration court is governed by agency
regulation, not by [statute]. . . ." 963 F.3d at 161 (internal
citations omitted); see Maniar v. Garland, 998 F.3d 235, 242 & n.2
(5th Cir. 2021) (explaining that Niz-Chavez does not affect its
prior holding that an immigration court's jurisdiction is governed
by federal regulations and that an NTA without date or time
information is sufficient to confer jurisdiction).
4 Congress passed § 1326(d) with the intent of insulating
removal orders against collateral attacks in criminal proceedings,
emphasizing the importance of finality and deference to
immigration agency determinations while guaranteeing minimal due
process. See 140 Cong. Rec. S28440-41 (daily ed. Oct. 6, 1994)

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 The district court was correct that Castillo-Martinez

has not met any of the three statutory requirements. He has not

exhausted the administrative remedies for his newly raised

ineffective assistance claim. Judicial review was plainly

available. The 2012 removal proceeding was not fundamentally

unfair.

1.

Castillo-Martinez fails to satisfy the first two

statutory requirements of § 1326(d). He neither exhausted his

administrative remedies nor was he deprived of an opportunity for

judicial review. As the Supreme Court recently emphasized, "each

of the statutory requirements of § 1326(d) is mandatory." United

States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021).

(statement of Sen. Smith) (stating that the language of § 1326(d)
"which is taken directly from the U.S. Supreme Court case of United
States v. Mendoza-Lopez, 481 U.S. 828 (1987), is intended to ensure
that minimum due process is followed in the original deportation
proceeding while preventing wholesale, time-consuming attack on
underlying deportation orders.").
In civil proceedings, a noncitizen who reenters the
United States illegally after having previously been ordered
removed may not challenge the original removal order at all if
that original order is reinstated. 8 U.S.C. § 1231(a)(5).
Subsection 1231(a)(5) provides that the reinstated order "is not
subject to being reopened or reviewed," and the noncitizen "is not
eligible and may not apply for any relief" from the order. Id.
Subsection 1231(a)(5) underscores the importance of the finality
of a removal order once entered. There is no reason to think that
Congress intended a lesser degree of finality in criminal cases
than in civil cases.

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 We may affirm a district court's decision based on any

independent ground supported by the record, even if the district

court did not reach the issue. See United States v. Cabrera-Polo,

376 F.3d 29, 31 (1st Cir. 2004) ("We are not committed to the

district court's reasoning, but, rather, may affirm its order on

any independent ground made apparent by the record."); see also

Dimott v. United States, 881 F.3d 232, 238-40 (1st Cir. 2018).

Castillo-Martinez conceded that he has not met the first

two § 1326(d) requirements in the traditional sense. See Castillo-

Martinez, 378 F. Supp. 3d at 54. The Supreme Court issued its

decision in Moncrieffe on April 23, 2013, shortly after Castillo-

Martinez's first removal. Between April 2013 and February 2019,

when he moved to dismiss the unlawful reentry charge, Castillo-

Martinez never once filed a motion to reopen his 2012 removal

proceedings based on ineffective assistance of counsel in light of

Moncrieffe. See 8 U.S.C. § 1229a(c)(7).5

We have long recognized the exhaustion requirement as an

important element of the § 1326(d) requirements for an alien to

collaterally attack a removal order. See United States v. Luna,

436 F.3d 312, 317 (1st Cir. 2006). This exhaustion requirement is

5 Motions to reopen removal hearings are disfavored
because of "the compelling public interests in finality and the
expeditious processing of proceedings." Muyubisnay-Cungachi v.
Holder, 734 F.3d 66, 71 (1st Cir. 2013) (quoting Raza v. Gonzales,
484 F.3d 125, 127 (1st Cir. 2007)).

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consistent with the congressional intent underlying § 1326(d) to

defer to agency determinations and restrict collateral attacks on

those agency determinations.

Castillo-Martinez nevertheless argues that if he can

show that his counsel was ineffective, we should excuse his failure

even where he failed to exhaust his ineffective assistance claim

before the BIA. We do not accept his proposition, though we

acknowledge that some circuits adopted this approach before the

Supreme Court's recent decision in Palomar-Santiago. See United

States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 2014)

(holding that the first two § 1326(d) requirements were satisfied

because "counsel's ineffectiveness . . . caused [defendant's]

failure to exhaust administrative remedies and deprived him of his

opportunity for judicial review"); United States v. Cerna, 603

F.3d 32, 40 (2d Cir. 2010) (holding that ineffective assistance of

counsel may be grounds to excuse § 1326(d)(2)'s requirement).

The text of § 1326(d) and the Supreme Court's decision

in Palomar-Santiago do not support excusing Castillo-Martinez's

failure to satisfy the statutory requirements. In Palomar-

Santiago, the unanimous Court answered the statutory question

before it by holding that the "first two procedural requirements

are not satisfied just because a noncitizen was removed for an

offense that did not in fact render him removable." Palomar-

Santiago, 141 S. Ct. at 1621. The Ninth Circuit's contrary holding

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was "incompatible with the text of § 1326(d)." Id. at 1620. The

Court held that "[w]hen Congress uses 'mandatory language' in an

administrative exhaustion provision, 'a court may not excuse a

failure to exhaust.'" Id. at 1621 (quoting Ross v. Blake, 136 S.

Ct. 1850, 1857 (2016)) (emphasis added). That is exactly what

Castillo-Martinez asks us to do. He concedes that he has not met

the first two § 1326(d) requirements but asks us to excuse those

failures. See Ross, 136 S. Ct. at 1856 (holding that, other than

the requirement that a remedy be "available," the text of the

Prison Litigation Reform Act ("PLRA") "suggests no limits on an

inmate's obligation to exhaust -- irrespective of any 'special

circumstances'").

The Supreme Court rejected Palomar-Santiago's

counterargument that he should be excused from showing the first

two procedural requirements of § 1326(d) because further

administrative review of a removal was not "available" when the IJ

erroneously informed him that his prior conviction rendered him

removable. Palomar-Santiago, 141 S. Ct. at 1621 ("Noncitizens,

the argument goes, cannot be expected to know that the immigration

judge might be wrong."). The Court found that administrative

review and judicial review of the removal were not "unavailable."

Id. The Court reasoned that "[a]dministrative review of removal

orders exists precisely so noncitizens can challenge the substance

of immigration judges' decisions." Id. The Court further stated

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that "[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.

This reasoning applies equally to Castillo-Martinez.

The BIA "provides a process for adjudicating ineffective

assistance of counsel claims through a motion to reopen."

Gicharu v. Carr, 983 F.3d 13, 17 (1st Cir. 2020). Castillo-

Martinez does not explain why he never moved to reopen his removal

proceedings after Moncrieffe. The ninety-day deadline for filing

such a motion, see 8 C.F.R. § 1003.23(b)(1), does not render relief

via a motion to reopen unavailable. As this court has previously

explained, "[t]he BIA . . . entertains claims for equitable tolling

of the filing deadline for motions to reopen where it is alleged

that ineffective assistance of counsel caused the motion to be

untimely." Gicharu, 983 F.3d at 17 (citing Pineda v. Whitaker,

908 F.3d 836, 840-41 (1st Cir. 2018)). Even if "the standard for

establishing equitable tolling is daunting, it does not render

review by the BIA . . . unavailable." Id. at 18 (internal citation

omitted); cf. Ross, 136 S. Ct. at 1858 (explaining that the PLRA's

exhaustion requirement "hinges on the 'availab[ility]' of

administrative remedies" because "[a]n inmate . . . must exhaust

available remedies[] but need not exhaust unavailable ones").

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 Ordinarily, an alien raising an ineffective assistance

of counsel claim through a motion to reopen must comply with the

procedural requirements set forth in the leading BIA case Matter

of Lozada, 19 I. & N. Dec. 637 (BIA 1988):

(1) an affidavit explaining the petitioner's
agreement with counsel regarding legal
representation; (2) evidence that counsel has
been informed of the allegations of
ineffective assistance and has had an
opportunity to respond; and (3) if it is
asserted that counsel's handling of the case
involved a violation of ethical or legal
responsibilities, a complaint against the
attorney filed with disciplinary authorities
or, in the alternative, an explanation for why
such a complaint has not been filed.

Ferreira v. Barr, 939 F.3d 44, 46 (1st Cir. 2019) (quoting Pineda,

908 F.3d at 839 n.2); see Lozada, 19 I. & N. Dec. at 639; see also

Pineda, 908 F.3d at 839 n.2 ("The BIA's decision in Lozada is

widely recognized as a leading case with respect to claims of

ineffective assistance of counsel in the immigration context.").

We have recognized that the Lozada requirements are "designed to

give the BIA sufficient information to inform its decision without

resorting to an evidentiary hearing." Ferreira, 939 F.3d at 46.

In the BIA's view, false claims of ineffective assistance can be

identified by a counsel's response to the notification or the

alien's insufficiently explained refusal to file a formal

complaint against that counsel. Saakian v. INS, 252 F.3d 21, 26

(1st Cir. 2001). These requirements lessen the chances of

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meritless claims and make it easier for the BIA to act on

meritorious claims of ineffective assistance. Id.

Once the procedural requirements are satisfied, the BIA

reviews ineffective assistance claims for two substantive

requirements: (1) immigration counsel's performance was deficient;

and (2) immigration counsel's performance caused prejudice to the

client. See Matter of Melgar, 28 I. & N. Dec. 169, 171 (BIA 2020);

Lozada, 19 I. & N. Dec. at 638.

After the BIA issues its decision, an alien may then

file a petition for review with our court. When reviewing the

BIA's decisions, we uphold findings of fact about ineffective

assistance "as long as they are supported by substantial evidence

on the record as a whole." Ferreira, 939 F.3d at 45. We review

the BIA's denial of a motion to reopen for ineffective assistance

for abuse of discretion. Muyubisnay-Cungachi v. Holder, 734 F.3d

66, 70 (1st Cir. 2013).

Castillo-Martinez and the dissent would have us bypass

this process entirely and in doing so, alter our standard of review

from the substantial evidence standard to de novo review of

fundamental fairness concerns. The dissent's approach would have

us decide de novo, without record support, whether counsel's

conduct constituted ineffective assistance. Subsection 1326(d)

does not allow for this. The ability to assert an ineffective

assistance of counsel claim to the BIA was available to Castillo-

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Martinez well before his February 2019 motion to dismiss his

unlawful reentry charge. He failed to exhaust any such claim

before the agency.

2.

Even assuming dubitante that Castillo-Martinez can

satisfy § 1326(d)'s first two requirements despite his failure to

move to reopen his removal proceedings or assert an ineffective

assistance claim to the agency, he has not shown that "the entry

of the order was fundamentally unfair." 8 U.S.C. § 1326(d)(3).

Castillo-Martinez argues that he can satisfy this third

requirement of § 1326(d) by demonstrating ineffective assistance

of counsel, but he has not met his burden of showing that his

immigration counsel was ineffective on the record before us.

Aliens in removal proceedings are not defendants in

criminal proceedings. The same rules do not apply. See Ferreira,

939 F.3d at 46 n.1. For example, aliens in removal proceedings

have no Sixth Amendment right to counsel. See id.; Saakian, 252

F.3d at 24. In his removal proceeding, Castillo-Martinez sought

a benefit from the government: to remain in the country. The

proceeding was not to determine whether his liberty would be

involuntarily restrained; indeed, he remained free to depart on

his own at any time. It is true that under Reno v. Flores, removal

proceedings must comport with the fundamental requirements of the

Due Process Clause under the Fifth Amendment. 507 U.S. 292, 306

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(1993). Accordingly, his burden of showing ineffective assistance

of counsel in his removal proceeding is different than the burden

put on criminal defendants under Strickland. Cf. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We have held that

"[i]neffective assistance of counsel in a deportation proceeding

is a denial of due process under the Fifth Amendment if the

proceeding was so fundamentally unfair that the alien was prevented

from reasonably presenting his case." Fustaguio Do Nascimento v.

Mukasey, 549 F.3d 12, 17 (1st Cir. 2008) (quoting Rodríguez–

Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002)). To establish

that a proceeding was fundamentally unfair because of ineffective

assistance of immigration counsel, an alien must show "[1] a

deficient performance by counsel and [2] 'a reasonable probability

of prejudice resulting from [his] former representation.'"

Muyubisnay-Cungachi, 734 F.3d at 72 (quoting Zeru v. Gonzales, 503

F.3d 59, 72 (1st Cir. 2007)).

Castillo-Martinez cannot meet that standard before the

BIA, nor can he meet that standard before this court.

i.

Even on review of the record before us, Castillo-

Martinez has not shown that his counsel at the removal proceeding

was deficient. Castillo-Martinez argues that his counsel "was

ineffective in conceding that Castillo-Martinez's marijuana

offense qualified as an aggravated felony." His counsel's

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strategic concession was based on longstanding and controlling

First Circuit precedent. See Julce v. Mukasey, 530 F.3d 30, 35

(1st Cir. 2008), abrogated by Moncrieffe, 569 U.S. at 187. Absent

"unusual circumstances," "the case law is clear that an attorney's

assistance is not rendered ineffective because he failed to

anticipate a new rule of law." Powell v. United States, 430 F.3d

490, 491 (1st Cir. 2005) (quoting Kornahrens v. Evatt, 66 F.3d

1350, 1360 (4th Cir. 1995)).

Any ineffective assistance of counsel claim is also

defeated by the fact that Castillo-Martinez's counsel had

strategic reasons for conceding removability. In addition to the

marijuana conviction, Castillo-Martinez was convicted of

conspiracy to sell OxyContin under N.H. Rev. Stat. Ann. § 318-

B:2(I) before the government sent him an NTA. This conviction

qualifies as an aggravated felony and would have provided a

standalone basis for mandatory removal. See 8 U.S.C. § 1227(a);

id. § 1227(a)(2)(A)(iii).6 Castillo-Martinez's counsel may have

6 To decide if a state conviction qualifies as an
aggravated felony under the Immigration and Nationality Act
("INA"), we "employ a 'categorical approach' to determine whether
the state offense is comparable to an offense listed in the INA."
Moncrieffe, 569 U.S. at 190. Under this approach, we determine if
"'the state statute defining the crime of conviction'
categorically fits within the 'generic' federal definition of a
corresponding aggravated felony." Id. at 190 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007)).
Under the INA, an aggravated felony includes "illicit
trafficking in a controlled substance (as defined in [21 U.S.C. §
802]), including a drug trafficking crime (as defined in [18 U.S.C.

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correctly concluded that even after predicting the Supreme Court

would overturn controlling First Circuit precedent in Moncrieffe,

any objection on this basis would be futile given Castillo-

§ 924(c)]." 8 U.S.C. § 1101(a)(43)(B). A drug trafficking crime
is "any felony punishable under the Controlled Substances Act
[("CSA")]." 18 U.S.C. § 924(c)(2). Under the CSA, it is a felony
"to manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance,"
21 U.S.C. § 841(a)(1), if the "maximum term of imprisonment
authorized" is more than one year, 18 U.S.C. § 3559(a)(5); see
Moncrieffe, 569 U.S. at 188.
In United States v. Burghardt, 939 F.3d 397, 406-09 (1st
Cir. 2019), applying the categorical approach, this court held
that because the elements of selling a controlled substance under
N.H. Rev. Stat. Ann. § 318-B:2(I) were not broader than the
elements of the generic "serious drug offense" defined in the Armed
Career Criminal Act, a § 318-B:2(I) conviction for selling drugs
is a "serious drug offense." Id. A "serious drug offense"
includes "an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in [21 U.S.C.
§ 802]), for which a maximum term of imprisonment of ten years or
more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
As is clear from their respective definitions, serious
drug offenses under 18 U.S.C. § 924(e)(2)(A)(ii) are a subset of
drug trafficking crimes as defined by 18 U.S.C. § 924(c). This
means that a serious drug offense is necessarily a drug trafficking
crime, and a drug trafficking crime is necessarily an aggravated
felony. It follows that Castillo-Martinez's § 318-B:2(I)
conviction is an aggravated felony under the INA and would have
precluded him from receiving various types of discretionary relief
from the removal order. See United States v. Hercules, 947 F.3d
3, 8 (1st Cir. 2020) (stating that "appellant's aggravated felony
convictions render him ineligible for various forms of relief from
removal," including cancellation of removal, 8 U.S.C.
§ 1229b(a)(3), and asylum, id. § 1158(b)(2)(A)(ii), (B)(i)).
Castillo-Martinez was convicted of conspiracy to sell OxyContin,
but "conspiracy to commit an offense described in [8 U.S.C. §
1101(a)(43)]" is also an aggravated felony. 8 U.S.C. §
1101(a)(43)(U).

- 21 -
Martinez's other drug conviction. See Knowles v. Mirzayance, 556

U.S. 111, 126-27 (2009).

That counsel was making a strategic choice is shown by

the fact that Castillo-Martinez applied for deferral of removal

under the CAT and submitted affidavits and testimony from himself

and his sister in support. Castillo-Martinez's counsel was not

deficient because he elected to focus on one defense to removal

rather than another defense that he reasonably perceived as weak.

This is not a case where counsel gave up "the only defense

available." Knowles, 556 U.S. at 126-27 ("Counsel also is not

required to have a tactical reason . . . for recommending that a

weak claim be dropped altogether.").7

7 There was a second strategic choice involved. An alien
previously ordered removed because of an aggravated felony
conviction is not eligible to seek readmission for 20 years. See
8 U.S.C. § 1182(a)(9)(A)(i); 8 C.F.R. § 212.2(a). Prior to the
completion of the 20-year absence, an alien may apply for a
discretionary I-212 waiver, or "permission to reapply." See 8
U.S.C. § 1182(d)(3); 8 C.F.R. §§ 212.2(a), 212.4. Counsel could
have easily concluded that Castillo-Martinez would be removed
based on either drug conviction. Had counsel objected to the
marijuana conviction as the basis for the removal order or
requested a stay pending the Supreme Court's decision in
Moncrieffe, this would have only prolonged the removal
proceedings. Counsel did not know when the Supreme Court would
issue its decision in Moncrieffe, and the government could have
amended the NTA to include the Oxycontin conviction, thus
prolonging the removal proceedings further. See 8 C.F.R.
§ 1240.10(e). Any delay in removal would also delay the running
of Castillo-Martinez's 20-year absence requirement.

- 22 -
 ii.

Castillo-Martinez also cannot show prejudice resulting

from his immigration counsel's actions. See Muyubisnay-Cungachi,

734 F.3d at 72.

Even if Castillo-Martinez's marijuana conviction had not

been classified as an aggravated felony, he has failed to show

that there is a reasonable probability he would not have been

removed because of that conviction. As a controlled substance

offender under 8 U.S.C. § 1227(a)(2)(B)(i), he would have had to

apply for and receive discretionary relief to avoid deportation.

See Moncrieffe, 569 U.S. at 204 (2013) ("Escaping aggravated felony

treatment does not mean escaping deportation . . . It means only

avoiding mandatory removal."); United States v. Soto-Mateo, 799

F.3d 117, 123 (1st Cir. 2015) (explaining that "even if the

appellant's prior convictions did not comprise aggravated

felonies, he would not have been entitled as of right to remain in

the United States" and holding that there is no "constitutional

right to be . . . considered for . . . discretionary relief"); 8

U.S.C. § 1229b(a). Castillo-Martinez has made no argument that he

would have applied for such discretionary relief, let alone has he

offered any affirmative reasons why that relief would have been

warranted. His drug convictions prior to the entry of his

deportation order and "the relative lack of positive equities

- 23 -
eliminate any reasonable likelihood that he would have received a

grant of relief." Luna, 436 F.3d at 323.

Castillo-Martinez also has not shown that he would not

have been subject to mandatory removal because of his separate

OxyContin conviction. Even if he had successfully challenged the

earlier aggravated felony classification for his Massachusetts

offense, the government could have freely amended the NTA to

include other grounds for removal. Federal regulations say that

"[a]t any time during the proceeding" the government may lodge

"additional or substituted charges of inadmissibility and/or

deportability and/or factual allegations." 8 C.F.R. § 1240.10(e).

"[T]here is no requirement that the [government] advance every

conceivable basis for deportability" in the original NTA.

Magasouba v. Mukasey, 543 F.3d 13, 16 (1st Cir. 2008) (per curiam)

(second alteration in original) (quoting De Faria v. INS, 13 F.3d

422, 424 (1st Cir. 1993) (per curiam)). The government is also

allowed to replace all of the original charges in the NTA with new

ones, see Cheung v. Holder, 678 F.3d 66, 70 n.6, 70-71 (1st Cir.

2012), and "reopen . . . deportation proceedings to consider . . .

substitute charges" against an alien if the convictions underlying

the original charges have been vacated, De Faria, 13 F.3d at 424.

iii.

Castillo-Martinez fails to satisfy the distinct

statutory prejudice requirement under § 1326(d)(3), which

- 24 -
separately requires a "showing of prejudice." Soto-Mateo, 799

F.3d at 124. "[S]uch a showing entails 'a reasonable likelihood

that the result would have been different if the error in the

deportation proceeding had not occurred.'" Id. (quoting Luna, 436

F.3d at 321).

Castillo-Martinez argues that the district court's

prejudice analysis is incorrect because we must focus only on the

basis for removal cited in his original NTA for his 2012 removal

order. He says that because his NTA included only his marijuana

conviction and specifically said it was an aggravated felony under

8 U.S.C. § 1227(a)(2)(A)(iii), "[o]ther grounds for removal are

not relevant to the instant question of prejudice."8

We review whether entry of the removal order was

fundamentally unfair. See United States v. Martinez-Hernandez,

8 In support of this argument, Castillo-Martinez cites
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), which says we are
"powerless to affirm the administrative action by substituting
what [we] consider[] to be a more adequate or proper basis." He
also cites cases from the Ninth Circuit supporting his
understanding of the prejudice analysis. See, e.g., United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006)
("[Defendant's] Notice to Appear charged him as removable only for
having committed an aggravated felony . . . [because his] prior
conviction did not fit that definition[, he] was removed when he
should not have been and clearly suffered prejudice.").
Chenery is inapposite because we are not affirming his
removal order or the basis for its entry. We are reviewing the
district court's rejection of his collateral attack on the order
and considering whether entry of the deportation order was
fundamentally unfair. See United States v. Martinez-Hernandez,
932 F.3d 1198, 1204 (9th Cir. 2019).

- 25 -
932 F.3d 1198, 1204 (9th Cir. 2019). In doing so, we must consider

other grounds available to the government that would also have

supported entry of the removal order. We assess then the chances

of Castillo-Martinez receiving relief from removal. See United

States v. Almanza-Vigil, 912 F.3d 1310, 1323 n.10 (10th Cir. 2019)

(explaining that 8 U.S.C. § 1326(d)(3) "prohibits us from

addressing the removal order itself unless [the defendant] can

establish that the order's entry was fundamentally unfair," and

"the fundamental-unfairness inquiry hinges on [the defendant's]

chances of receiving relief from removal"). We assess Castillo-

Martinez's chances of relief from removal as a key part of the due

process fundamental unfairness inquiry embodied in the statutory

bar to such collateral attacks. Here, Castillo-Martinez's chances

of relief from removal were nonexistent. His outstanding New

Hampshire Oxycontin conviction was not a small offense. He

conspired to distribute more than 15,000 OxyContin tablets for

over $270,000. He was a dealer of a drug plaguing New Hampshire.

It is inconceivable that the government would not have amended his

removal order to add the more serious OxyContin conviction if the

marijuana conviction could not serve as a basis for removal.

3.

We respond below in greater detail to the dissent.9

9 We note at the outset that the government did not waive
its arguments as to whether Castillo-Martinez satisfied the first

- 26 -
 The dissent objects to our consideration that Castillo-

Martinez's counsel made a strategic choice not to object and to

instead apply for deferral of removal under the CAT. The dissent

states that Castillo-Martinez "was not apprised at any prior point

in the litigation that [this ground] was even in dispute." But it

is Castillo-Martinez who bears the burden of demonstrating that

his immigration counsel provided assistance so ineffective as to

violate the Constitution. He has the burden as to the totality of

two statutory requirements of § 1326(d). In the district court,
the government argued that Castillo-Martinez both failed to
exhaust his administrative remedies and that he was not denied the
opportunity for judicial review. On appeal, the government
maintains the same position and argues that our circuit has not
recognized an exception to the statutory exhaustion requirement
and need not do so in this case. The government's brief continues
with language that deliberately does not concede these arguments:
"Even assuming such an exception exists, Castillo-Martinez has not
established that he would be entitled to it." An "assuming
arguendo" statement is not a concession and not a waiver.
Waiver is "treated as an 'intentional,' and therefore
permanent, abandonment of a position." United States v. Torres-
Rosario, 658 F.3d 110, 115 (1st Cir. 2011) (quoting United
States v. Walker, 538 F.3d 21, 22 (1st Cir. 2008)). There was no
intentional abandonment by the government here. As such, there
was no waiver.
Further, even if there had been a waiver, we do not
"'religiously' hold[] waiver against the Government" where the
government focuses its argument on one procedural bar rather than
another. Dimott, 881 F.3d at 238-40 (holding that federal courts
may raise sua sponte procedural arguments not raised by the
government). "[W]e have discretion to overlook waiver by the
government in a criminal case when circumstances justify us in
doing so." United States v. Carrasco-De-Jesús, 589 F.3d 22, 26
n.1 (1st Cir. 2009); see United States v. Borrero-Acevedo, 533
F.3d 11, 15 n.3 (1st Cir. 2008) ("This court is not bound by a
party's concessions.").

- 27 -
his counsel's actions in the immigration proceedings. See

Muyubisnay-Cungachi, 734 F.3d at 72. Castillo-Martinez had

numerous opportunities to address this ground, including by

raising the issue of ineffective assistance before the

administrative agency, which he failed to do.

The dissent also misunderstands the scope of our review

under 8 U.S.C. § 1326(d). Congress did not adopt the dissent's

reading of United States v. Mendoza-Lopez, 481 U.S. 828 (1987), in

passing § 1326(d). Rather, § 1326(d) makes clear that Castillo-

Martinez "may not challenge the validity of the deportation order"

unless he first demonstrates that "the entry of the order was

fundamentally unfair." 8 U.S.C. § 1326(d). When Congress used

the phrase "fundamentally unfair" in § 1326(d)(3), it meant that

aliens must show that they have been denied due process under the

Fifth Amendment. See United States v. Torres, 383 F.3d 92, 103

(3d Cir. 2004) (collecting cases and noting that "[i]n measuring

whether an alien's removal proceeding was 'fundamentally unfair,'

most circuits ask whether the alien was denied due process"). To

establish a due process violation, an alien must show both

procedural error and prejudice.10 See Luna, 436 F.3d at 319

10 We have recognized that "[t]here may be some cases where
the agency's violation of a petitioner's rights was 'so flagrant,
and the difficulty of proving prejudice so great' that prejudice
may be presumed." Luna, 436 F.3d at 321 n.14 (quoting United
States v. Loaisiga, 104 F.3d 484, 488 (1st Cir. 1997)). Those
circumstances would be akin to structural errors in the criminal

- 28 -
("[C]ourts uniformly require a showing of procedural error and

prejudice" under §1326(d)(3)); cf. United States v. Marcus, 560

U.S. 258, 264-5 (2010) (explaining in the criminal context that

the Court has "insisted upon a showing of individual prejudice"

for a claim of non-structural error under the Due Process Clause);

Strickland, 466 U.S. at 696 (stating that ineffective assistance

claims under the Sixth Amendment require a showing of deficient

performance and prejudice and that "the ultimate focus of inquiry

must be on the fundamental fairness of the proceeding whose result

is being challenged."). Interpreting § 1326(d)'s "fundamentally

unfair" language to require a due process violation is consistent

with Congress's goal of making it more difficult for aliens to

collaterally attack their removal orders. See H.R. Rep. No. 104-

22, at 16 (1995) (noting that the Criminal Alien Deportation

Improvements Act "amends the INA to provide that the alien charged

with [illegal reentry] may only challenge the validity of the

original deportation order" if § 1326(d)'s conditions are met).

The dissent misreads the significance of the definite

article "the" and in doing so, renders the two separate prejudice

requirements, under the ineffective assistance standard and the

§ 1326(d) fundamental unfairness standard, meaningless. Under the

context. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1905 (2017)
(describing a "structural error" as "an error entitling the
defendant to automatic reversal without any inquiry into
prejudice"). That is not this case.

- 29 -
dissent's approach, we would be limited to looking at the basis of

the original order and not any other grounds for removal that would

have supported entry of the removal order.11 This interpretation

of § 1326(d) could be satisfied by the showing of any error in the

original order, thereby reading out both prejudice requirements

entirely.

The dissent's prejudice conclusion also improperly

focuses on the specific ground for the removal order rather than

looking at the entire context of the removal proceeding. In

criminal proceedings, the prejudice analysis requires that a

defendant show that "[i]t must be reasonably likely that the result

of the criminal proceeding would have been different if counsel

had performed as the defendant asserts he should have." Rivera-

11 Even if we were limited to Castillo-Martinez's original
removal order, the IJ acknowledged Castillo-Martinez's Oxycontin
conviction and recognized that it would serve as a basis for
mandatory removal. The IJ wrote in that removal order:

The Respondent has criminal convictions from
1996 for the Manufacture, Distribution, and
Cultivation of Marijuana, for which he
received a sentence of two years in a house of
corrections. This is an aggravated felony,
which comprises the basis for removal. In
addition, more recently, the Respondent was
convicted this year for a 2010 violation in
Rockingham, New Hampshire, for Possession and
Sale of a Narcotic Drug and the Conspiracy
Thereof, for which he received again a two
year suspended sentence. This, too, is a drug
trafficking offense constituting an
aggravated felony.

- 30 -
Rivera v. United States, 827 F.3d 184, 187 (1st Cir. 2016)

(quotations omitted). "[T]hat likelihood 'must be substantial,

not just conceivable.'" Hensley v. Roden, 755 F.3d 724, 736 (1st

Cir. 2014) (quoting Harrington v. Richter, 562 U.S. 86, 112

(2011)). Here, Castillo-Martinez has not shown that there is a

substantial likelihood that the result of the removal proceeding

would have been different. The IJ in Castillo-Martinez's original

removal order specifically acknowledged that the OxyContin

conviction "too, is a drug trafficking offense constituting an

aggravated felony." Even if Castillo-Martinez's marijuana

conviction had not been classified as an aggravated felony, the

result of the proceeding would have been the same -- a removal

order -- even if the ground supporting the entry of that removal

order may have been different.

Our holding in Williams v. United States, 858 F.3d 708,

716 (1st Cir. 2017), is instructive as to the scope of the

applicable prejudice analysis. In that case, Williams was charged

in New Hampshire under 18 U.S.C. § 1542 for committing passport

fraud. New Hampshire was an improper venue for this charge but a

proper venue for the related, uncharged offense of making a

material false statement in violation of 18 U.S.C. § 1001.

Williams told his counsel that he "wanted the case to be dismissed"

because venue was improper. Id. at 712. Instead, his counsel

consented to the government's filing of a superseding indictment

- 31 -
replacing the § 1542 charge with a charge under § 1001. Williams

eventually pleaded guilty to the § 1001 charge in New Hampshire,

but he argued that, but-for his counsel's concession, the

government would have had to bring a new charge and he could have

transferred the case to his hometown in New York instead of being

forced to defend it in New Hampshire. Id. at 716. Specifically,

he argued that "the initial result of the proceeding would have

been different because the § 1542 charge for passport fraud would

have been dismissed." Id.

In conducting the prejudice analysis, we did not focus

narrowly on whether the original charge against Williams would

have been dismissed (as Castillo-Martinez would have us do here).

Instead, we focused more broadly on the likely result of the

proceeding, holding that it "would have been no different had his

counsel not agreed with the government's wish to file a superseding

indictment" because he would have eventually been charged and

convicted under § 1001 in either New Hampshire or New York, even

if the government would have had to file new charges in a new

indictment. Id. So too here: Castillo-Martinez cannot show

prejudice because, regardless of whether his counsel had asked the

court to delay the proceedings pending Moncrieffe, it is likely a

removal order would have been entered against him.

The dissent, in several ways, is inconsistent with the

congressional intent underlying § 1326(d). First, the dissent's

- 32 -
reading eliminates the exhaustion requirement, including the BIA's

Lozada requirements. The ineffective assistance claim must first

be presented to the BIA. Second, the dissent would eliminate the

first prong of the BIA's judicially approved ineffective

assistance standard requiring a showing of deficient performance.

Third, the dissent alters the standard of judicial review from

whether the BIA had substantial evidence on which to find deficient

performance and instead would substitute a new standard of review

in the guise of de novo review of fundamental fairness concerns.

Nothing in Congress's choice to use the word "the" in any way

negates or weakens the other explicit requirements in the statutory

bar to such collateral attacks.

The dissent's interpretation of § 1326(d) would also

multiply litigation and stress the already burdened federal

immigration agencies. The dissent's rule would create a

requirement that the government advance every conceivable basis

for removal in the original NTA and litigate each basis in an

immigration hearing, even where one ground for removal would

suffice. Cf. Magasouba, 543 F.3d at 16. If not, as is the case

for Castillo-Martinez, the government would have to re-notice and

redo the original immigration hearing, even though no party

disputes that Castillo-Martinez would likely be subject to

mandatory removal again.

- 33 -
 III.

Affirmed.

-Dissenting Opinion Follows-

- 34 -
 BARRON, Circuit Judge, dissenting. This case concerns

an order of removal entered against Jesus Leonardo Castillo-

Martinez nearly a decade ago. But, it is not about whether he may

be removed pursuant to that order. It is about the criminal

consequences that he may be subjected to under 8 U.S.C. § 1326,

which makes it a felony to enter unlawfully the United States

"while [an] order of . . . removal is outstanding." Id. § 1326(a).

Castillo-Martinez contends that the indictment that

charges him with that offense must be dismissed because the

government may not use his prior removal order to prove the

"outstanding order of removal" element of the crime that § 1326

sets forth. He contends that the government may not do so because

his counsel's assistance in the removal proceedings that produced

that order was so deficient that it not only rendered them

fundamentally unfair but also precluded him from subjecting them

to judicial review in the first instance. He thus seeks to dismiss

his indictment based on what amounts to a Due Process-based

collateral attack on the order of removal that grounds his criminal

prosecution.

A criminal defendant, like Castillo-Martinez, can seek

to dismiss his § 1326 charge by collaterally attacking the

predicate order of removal on the ground that it resulted from

fundamentally unfair administrative proceedings that also

improperly prevented it from being judicially reviewed. The

- 35 -
Supreme Court held as much in United States v. Mendoza-Lopez, 481

U.S. 828 (1987), and Congress implemented that ruling in § 1326

itself, by adding subsection (d) in the wake of the Court's ruling.

That provision is entitled, "Limitation on collateral

attack on underlying deportation order." 8 U.S.C. § 1326(d). It

expressly provides that "[i]n a criminal proceeding under this

section, an alien may not challenge the validity of the [prior]

deportation order . . . unless the alien demonstrates": (1) that

he "exhausted any administrative remedies that may have been

available to seek relief against the order"; (2) that "the

deportation proceedings at which the order was issued improperly

deprived the alien of the opportunity for judicial review"; and

(3) that "the entry of the order was fundamentally unfair." Id.;

see also United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620-

21 (2021).

The District Court assumed that Castillo-Martinez made

the requisite showings under both (d)(1) and (d)(2), and the

government does not contend otherwise on appeal. Thus, to hear

the parties tell it, we need decide only one issue: can Castillo-

Martinez show under (d)(3) that the "entry of the order was

fundamentally unfair"?

The District Court explained that he could not do so for

two reasons, and they are, as it happens, the only two reasons on

which the government now asks us to rely to affirm the District

- 36 -
Court. The first is that Castillo-Martinez did not in fact receive

ineffective assistance of counsel, because his counsel's

performance in connection with his removal proceedings was not

constitutionally deficient. The second is that, even if Castillo-

Martinez did receive such constitutionally deficient assistance of

counsel, the "entry of the order of removal" against him was still

not "fundamentally unfair" within the meaning of (d)(3).

As I will explain, neither reason holds up. The first

depends -- at least given the limited nature of the District

Court's ruling -- on a troubling view of the level of performance

that may be expected of counsel that I do not understand our prior

precedent to require. The second -- insofar as it truly differs

from the first -- rests on both a mistaken understanding of the

degree of prejudice that must be shown to establish a violation of

the right to procedural due process and a construction of § 1326(d)

that accords with neither its plain text nor its statutory history.

Thus, I would vacate the District Court's order denying

Castillo-Martinez's motion to dismiss his indictment. That way,

the parties may hash out on remand any issues beyond those

addressed by the District Court and presented to us by the

government that might bear on whether the denial of the motion to

dismiss the indictment is warranted.12

I agree that there is no merit to Castillo-Martinez's
12

collateral challenge to the validity of his underlying order of

- 37 -
 Ordinarily, there would be no need for me to address any

of those potential issues. But, the majority has chosen, most

unusually, to reach out to resolve some of them. Accordingly, I

will address briefly the problems with the (unaided) ways in which

the majority has done so before then addressing the issues that

concern (d)(3), which in my view are the only issues that are

properly before us in this appeal. First, though, it is necessary

to review the Supreme Court ruling that is the genesis for

§ 1326(d): Mendoza-Lopez.

I.

Decades ago, § 1326 provided that "[a]ny alien who --

(1) has been arrested and deported or excluded and deported, and

thereafter (2) enters, attempts to enter, or is at any time found

in, the United States . . . shall be guilty of a felony . . . ."

8 U.S.C. § 1326 (1982). Criminal defendants seeking to block their

prosecution for that offense sometimes brought collateral attacks

on their predicate deportations to prevent their conduct (unlawful

entry) from resulting in their being convicted of a felony rather

than a misdemeanor. See Mendoza-Lopez, 481 U.S. at 841 n.18

(explaining that "8 U.S.C. § 1325 . . . provides that an unlawful

entry into the United States constitutes a misdemeanor" and that

removal insofar as it rests on the contention that, per Pereira v.
Sessions, 138 S. Ct. 2105 (2018), the Immigration Judge had no
jurisdiction to enter it.

- 38 -
"[§] 1326 serves to enhance the penalty for unlawful entry,

imposing a steeper punishment on individuals who violate § 1325

and who have previously been deported").

The lower courts were divided over whether such

collateral attacks could be brought, in large part because the

version of the statute then in place did not contain -- as it now

does -- a provision that recognized that such attacks were

permissible. See id. at 833 n.6. Mendoza-Lopez helped to resolve

a good deal of the confusion.

The Court explained that § 1326 did not itself make the

validity, rather than the fact of the prior deportation, relevant

to proving the prior-deportation element of the offense. See id.

at 834-37. But, the Court held that "[i]f [§ 1326] envisions that

a court may impose a criminal penalty for reentry after any

deportation, regardless of how violative of the rights of the alien

the deportation proceeding may have been, the statute does not

comport with the constitutional requirement of due process." Id.

at 837 (emphasis in original).

The Court explained that prior precedents had

established "that where a determination made in an administrative

proceeding is to play a critical role in the subsequent imposition

of a criminal sanction, there must be some meaningful review of

the administrative proceeding." Id. at 837-38 (emphasis in

original). Thus, Mendoza-Lopez derived a relatively limited --

- 39 -
but still consequential -- due process holding: "at the very

least . . . where the defects in an administrative proceeding

foreclose judicial review of that proceeding, an alternative means

of obtaining judicial review must be made available before the

administrative order may be used to establish conclusively an

element of the criminal offense." Id. (emphasis added). And the

Court elaborated on that holding this way: "at a minimum, the

result of an administrative proceeding may not be used as a

conclusive element of a criminal offense where the judicial review

that legitimated such a practice in the first instance has

effectively been denied." Id. at 838 n.15 (emphasis added).13

The Court then turned to the specific facts of the § 1326

cases at hand. It "accept[ed]" the rulings by the courts below

"that the deportation hearing [at issue] violated due process,"

id. at 840, because the government had "asked this Court to assume

that respondents' deportation hearing was fundamentally unfair,"

id. at 839. It thus observed that there remained to resolve only

whether "the violation of respondents' rights that took place in

this case amounted to a complete deprivation of judicial review of

the [administrative] determination." Id. at 840. For, if it did,

The Court did note that, in some cases, the provision
13

of a collateral means of judicial review would itself be incapable
of addressing the concern, because the defects in the
administrative proceedings might be of a structural nature that
would inherently preclude any judicial review of them from being
meaningful. See Mendoza-Lopez, 481 U.S. at 839 n.17.

- 40 -
the Court explained, then "that [administrative] determination may

not be used to enhance the penalty for an unlawful entry under

§ 1326." Id.

The Court pointed out that the government had conceded

that there were defects in the deportation proceedings that

rendered "fundamentally unfair" the entry of the deportation

orders at issue. See id. The Court then explained that those

defects also improperly precluded judicial review of those

deportation proceedings, because the immigration judge failed

adequately to apprise the § 1326 defendants in their immigration

proceedings of both the option of seeking a suspension of

deportation (which, if exercised, would have precluded the entry

of the order of deportation that the government was using to prove

the prior-deportation element of the § 1326 offense) and their

appellate rights. See id. That failure, the Court found,

"permitted waivers of the right to appeal that were not the result

of considered judgments by respondents, and failed to advise

respondents properly of their eligibility to apply for suspension

of deportation." Id. Thus, the Court held that it followed that

the federal constitutional guarantee of due process precluded the

government from "rely[ing] on those orders as reliable proof of an

element of a criminal offense." Id. (emphasis added).

The Court appeared to leave unresolved whether the

defendant in a criminal proceeding would have to show that an

- 41 -
administrative order had been entered in violation of due process,

rather than merely unlawfully, to establish that the right to due

process barred the government from using that order in the criminal

proceedings as "reliable proof" of a crime's element.14 But,

Castillo-Martinez grounds his right to challenge the validity of

his underlying order of removal in § 1326(d). And, (d)(3), by

requiring that he show that "the entry of the order was

fundamentally unfair," plainly requires Castillo-Martinez to show

that the entry of the order was at the very least the product of

a due process violation.15

14Notably, Mendoza-Lopez observed that, even if a
collateral judicial-review "safeguard" were in place, "the use of
the result of an administrative proceeding to establish an element
of a criminal offense is troubling." Id. at 838 n.15. In so
stating, the Court conceded that it had permitted an administrative
order that was, by design, not subject to direct judicial review
to be used to prove an element of a criminal offense in Yakus v.
United States, 321 U.S. 414 (1944), but emphasized that the
criminal prosecution there was for the violation of an
administrative regulation that Congress had intentionally
insulated from direct judicial review due to the exigencies of
wartime and, "most significantly, . . . adequate judicial review
of the validity of the regulation was available in another forum"
in advance of the criminal proceedings predicated on that
regulation. Mendoza-Lopez, 481 U.S. at 838 n.15.
15 By its terms, § 1326(d) imposes a "[l]imitation on

collateral attack[s]" and specifies three necessary conditions
that a defendant must satisfy in order not to be barred from
collaterally attacking the "underlying deportation order." But,
the parties in this case assume -- and I adopt their
assumption -- that § 1326(d) also authorizes such attacks and that
its three prongs, if satisfied, render a defendant's attack
successful.

- 42 -
 So, for our purposes, the following questions are the

only ones that are potentially at issue. First, has Castillo-

Martinez shown that, based on the ineffective assistance of counsel

that he claims to have received in his 2013 removal proceedings,

he was "improperly deprived . . . of judicial review" within the

meaning of (d)(2)? Second, has he also shown, on that same basis,

that he did all that he was expected to do to satisfy (d)(1)'s

requirement to exhaust available administrative remedies? And,

third, if he has shown that much, has he has shown as well -- as

he must under (d)(3) -- that the "entry of the order [of removal]

was fundamentally unfair"?

II.

There is not much that I need to say about whether

Castillo-Martinez has shown what he must to satisfy the first two

requirements set forth in § 1326(d). The District Court assumed

that he had, and the government does not ask us to revisit that

assumption. Nevertheless, the majority chooses of its own accord

to hold that Castillo-Martinez's bid to dismiss his indictment

fails under both (d)(1) and (d)(2). I thus begin by explaining my

concern with this aspect of the majority's decision.

As an initial matter, nothing indicates that either

(d)(1) or (d)(2) constrains our subject matter jurisdiction. In

Mendoza-Lopez itself, moreover, the Court relied on the

government's concession that the underlying immigration

- 43 -
proceedings were "fundamentally unfair" rather than on its own

independent (and unargued for) determination of whether they were.

481 U.S. at 839-40. Thus, it seems to me that the majority is

excusing the government's failure to make arguments regarding

(d)(1) and (d)(2) even though the government has not itself asked

us to do so.

To be clear, I am not suggesting that the government has

conceded that the relevant requirements have been met merely by

failing to argue otherwise to us. See Maj. Op. at 27 n.9. But,

I do note that the government's opposition to Castillo-Martinez's

motion to dismiss failed to address his developed contention below

that he should be treated as having satisfied both (d)(1) and

(d)(2) because the ineffective of assistance of counsel that he

contends that he received in his removal proceedings prevented him

from raising that contention in his removal proceedings and

effectively rendered him unable to have the issue reviewed on

appeal. Thus, the majority is necessarily relying on an

independent ground for affirming the District Court that the

government failed to develop any argument in support of at any

point in this litigation.

I suppose such reliance would be less concerning if it

were clear that Castillo Martinez had not met the two requirements

at issue. But, the majority offers no explanation for how

Castillo-Martinez could have successfully raised his claim of

- 44 -
ineffective assistance of counsel in his removal proceedings,

while its only arguments in support of its conclusion that

Castillo-Martinez cannot show that he exhausted his available

administrative remedies directly conflict with the only relevant

circuit-level authority. See United States v. Lopez-Chavez, 757

F.3d 1033, 1044 (9th Cir. 2014); United States v. Cerna, 604 F.3d

32, 40 (2d Cir. 2010); Maj. Op. at 13-14.16 I note, moreover, that

Mendoza-Lopez -- which was the catalyst for Congress's enactment

of § 1326(d) -- found merit to the collateral challenge in the

criminal proceeding there at issue without addressing whether any

administrative collateral challenge had been pursued.

Nor does United States v. Palomar-Santiago, 141 S. Ct.

1615 (2021), provide the missing clarity. The Supreme Court did

hold that the three requirements of § 1326(d) are conjunctive.

Id. at 1620-21. It did not address, however, what the majority

now resolves on its own -- what would suffice to demonstrate that

two of them had been satisfied?

I understand the majority's assertion that Castillo-
16

Martinez failed to comply with (d)(1) because he failed to comply
with the requirements for lodging a claim of ineffective assistance
set forth by the Board of Immigration Appeals in Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988), Maj. Op. at 15-18, to depend on
the majority's contention that (d)(1)'s reference to the
exhaustion of remedies encompasses motions to reopen.

- 45 -
 III.

I come, then, to the question of whether Castillo-

Martinez can satisfy the requirement set forth in (d)(3). He

contends that he can because his counsel's assistance in his

removal proceedings was so ineffective that it rendered them

fundamentally unfair. He thus contends that he can successfully

collaterally attack his prior order of removal, such that the

government cannot now rely on that order as "reliable proof,"

Mendoza-Lopez, 481 U.S. at 840, of the "outstanding order of

removal" element of the criminal offense that § 1326 sets forth,

id. at § 1326(a).

The government does not dispute on appeal that a

noncitizen may be deprived of his right to due process under the

Fifth Amendment in removal proceedings in consequence of his

counsel's ineffective assistance in them. Muyubisnay-Cungachi v.

Holder, 734 F.3d 66, 72 (1st Cir. 2013). There is thus no dispute

on appeal that the provision of ineffective assistance of counsel

in removal proceedings can, at least in some circumstances, render

them fundamentally unfair within the meaning of (d)(3). See

Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 17 (1st Cir. 2008)

("Ineffective assistance of counsel in a deportation proceeding is

a denial of due process under the Fifth Amendment if the proceeding

was so fundamentally unfair that the alien was prevented from

reasonably presenting his case." (quoting Rodríguez–Lariz v. INS,

- 46 -
282 F.3d 1218, 1226 (9th Cir. 2002))). Accordingly, I now turn to

the dispute before us, which concerns only whether Castillo-

Martinez can show that he received ineffective assistance of

counsel of that kind in his removal proceedings.

A.

The District Court ruled that Castillo-Martinez has not

shown that he was deprived of procedural due process because he

has not shown that his counsel's performance in those proceedings

was constitutionally "deficient." See Muyubisnay-Cungachi, 734

F.3d at 72. That is so, according to the District Court, even

though his counsel in those proceedings conceded his removability

as an "aggravated felon" under 8 U.S.C. § 1101(a)(43) based on his

prior state law marijuana conviction. The District Court explained

that its conclusion followed from the fact that such a concession

was supported at the time by then-controlling First Circuit

precedent, see Julce v. Mukasey, 530 F.3d 30, 35 (1st Cir. 2008),

abrogated by Moncrieffe v. Holder, 569 U.S. 184 (2013), and the

majority endorses that same conclusion, noting that it is clear

under our precedent that, absent "unusual circumstances," "an

attorney's assistance is not rendered ineffective because he

failed to anticipate a new rule of law," Powell v. United States,

430 F.3d 490, 491 (1st Cir. 2005) (quoting Kornahrens v. Evatt, 66

F.3d 1350, 1360 (4th Cir. 1995)); Maj. Op. at 20.

- 47 -
 But, the record shows that the circumstances in this

case were "unusual." At the very moment that Castillo-Martinez's

counsel was conceding that his client could lawfully be removed

based on his prior marijuana conviction, the Supreme Court was

poised to render a decision, in a case that had already been

argued, that would make clear that he could not be. See Moncrieffe

v. Holder, 566 U.S. 920 (2012) (granting the petition for writ of

certiorari); Transcript of Oral Argument, Moncrieffe, 569 U.S. 184

(No. 11-702), 2012 WL 4812587 (identifying the oral argument date

as October 10, 2012). Moreover, there was at that time a circuit

split among five courts of appeals on the question of whether a

prior conviction for distributing marijuana (which was what

Castillo-Martinez's prior conviction was for) qualified as an

"aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43),

with two circuits taking the opposite view from our circuit's

ruling on that question in Julce. See Moncrieffe, 569 U.S. at 190

n.3. And, what is more, there was intervening Supreme Court

precedent that had already undercut Julce.17

17Julce had reached the conclusion that it did by
applying a circumstance-specific "'hypothetical federal felony'
approach" to determine whether a state conviction qualifies as an
aggravated felony under the INA. 530 F.3d at 33 (quoting Berhe v.
Gonzales, 464 F.3d 74, 84 (1st Cir. 2006)). But, in the wake of
that ruling, the Supreme Court had indicated -- in Nijhawan v.
Holder, 557 U.S. 29 (2009) -- that we should instead be applying
the categorical approach. See id. at 37 (noting that the phrase
"illicit trafficking in a controlled substance" in the "aggravated
felony" statute "must refer to [a] generic crime[]" and therefore

- 48 -
 Thus, I see no merit in the only ground that the District

Court has given for ruling that Castillo-Martinez fails to show

that his counsel provided constitutionally deficient assistance to

him: that his counsel could not be expected to anticipate the new

rule of law that favored his client. Cf. Lopez-Chavez, 757 F.3d

at 1043 (concluding that counsel was ineffective in conceding

removability where the removal order was based on the sole ground

that the defendant's state law marijuana offense was an aggravated

felony because that very issue was an open question in the

applicable jurisdiction at the time of the order); United States

v. Castro-Taveras, 841 F.3d 34, 47 (1st Cir. 2016) (explaining

that "'[d]efense counsel too must know or learn about the relevant

law and evaluate its application to his or her client'" and that

"failure of knowledge by counsel" as to "the 'most fundamental

statutory provision relating to sentencing' . . . may 'amount to

constitutionally ineffective assistance of counsel'" (alteration

in original) (quoting Correale v. United States, 479 F.2d 944, 949

(1st Cir. 1973))). Accordingly, I would vacate the District

Court's ruling, insofar as it is dependent on this finding of no

"deficient performance." That way, the District Court may

calls for the "categorical approach"); see also Moncrieffe, 569
U.S. at 192 ("The aggravated felony at issue here, 'illicit
trafficking in a controlled substance,' is a 'generic
crim[e].' . . . So the categorical approach applies." (quoting
Nijhawan, 557 U.S. at 37)).

- 49 -
determine in the first instance if there is some other basis (still

viable in the case) for finding that Castillo-Martinez has not

shown what he must under the "deficient performance" component of

his ineffective assistance of counsel claim.

I do recognize that the majority would have us bypass

this conventional method of appellate adjudication, as the

majority reaches out on its own to rule that Castillo-Martinez

received constitutionally adequate assistance from his counsel in

his immigration proceedings on a ground that the District Court

did not address and that the government neither presses in this

appeal nor advanced below. The majority asserts in this regard

that Castillo-Martinez's counsel may reasonably be understood to

have made a strategic choice not to press the Moncrieffe point.

In support of that contention, the majority asserts that

Castillo-Martinez's counsel may have reasonably assessed that the

Moncrieffe argument ultimately would have offered no aid to

Castillo-Martinez because an order of removal could have been later

entered against him either on the ground that he was an "aggravated

felon" based on his 2012 OxyContin conviction in New Hampshire,

see 8 U.S.C. § 1227(a)(2)(A)(iii), or on the ground that he was

not entitled to be spared from removal for having unlawfully

entered the country initially based on a discretionary

determination predicated on his marijuana conviction. Maj. Op. at

20-22. For that reason, the majority concludes, Castillo-

- 50 -
Martinez's counsel acted competently in pressing only a claim under

the Convention Against Torture, as that claim alone would have

stood in the way of his removal on either of those alternative

grounds.

But, neither the government nor the District Court has

suggested that Castillo-Martinez's counsel was not

constitutionally deficient in failing to advance the argument that

won the day in Moncrieffe because he was in fact savvy for failing

to have done so. They have asserted (unpersuasively in my view)

only that he was not constitutionally deficient in failing to

advance that argument because he was excusably lacking in

foresight. Castillo-Martinez was not apprised at any prior point

in the litigation that the competency of his counsel was being

disputed on that basis. Nor have we sought supplemental briefing

to see what he might have to say about it now that it is being

disputed. I thus cannot agree that it is proper for us to reject

Castillo-Martinez's claim of ineffective assistance of counsel on

this alternative "strategic choice" ground.

B.

Of course, Castillo-Martinez must show more than that

his counsel's performance in his removal proceedings was

constitutionally deficient to succeed on his due process-based

collateral attack on the removal order that grounds his prosecution

under § 1326. He must also show that such poor performance

- 51 -
"prevented [him] from reasonably presenting his case." Fustaguio

Do Nascimento, 549 F.3d at 17 (quoting Rodríguez–Lariz, 282 F.3d

at 1226). The District Court and the majority each concludes that

he cannot make that showing either. Here, as well, I am not

persuaded.

The sole legal basis for the only order of removal that

was entered against Castillo-Martinez was that he qualified as an

"aggravated felon" under Sections 101 and 237 of the Immigration

and Nationality Act. See 8 U.S.C. §§ 101(a)(43)(B),

1227(a)(2)(A)(iii). That order based that conclusion solely on

the fact that he had been convicted of the offense of marijuana

possession under Massachusetts law. Yet, as I have explained,

Moncrieffe makes clear that such an order is unlawful. Thus, it

would appear to me that Castillo-Martinez can show that his

counsel's failure to raise the Moncrieffe-related argument did

prevent him from reasonably presenting the case that it would be

unlawful to order him removed on the sole ground on which his order

of removal rested.

The District Court and the majority conclude, however,

that Castillo-Martinez must show that no other order of removal

could have been entered against him. They then conclude that he

has not done so, because the record shows that he could have been

ordered removed (even though he was not) at those same immigration

proceedings based on either his separate OxyContin conviction or

- 52 -
a discretionary determination keyed to the marijuana conviction

itself. Maj. Op. at 23-25.

The prospect that a removal order premised on either

ground could have been entered (but was not) might support the

conclusion that his counsel reasonably surmised that a Moncrieffe-

based challenge would merely delay the inevitable. It thus might

support an argument that his counsel acted strategically and so

not deficiently. But, insofar as the District Court and the

majority mean to make a point about the prejudice that the Fifth

Amendment right to procedural due process generally demands, I

cannot see why that prospect is of note.

If Castillo-Martinez had been ordered removed solely on

the basis of his prior state-law marijuana conviction after

Moncrieffe, and he then petitioned to have it vacated based on

that ruling, we would not deny his petition for review and leave

his plainly unlawful order of removal in place just because the

record showed that he could have been ordered removed -- but was

not -- based on his OxyContin conviction or a discretionary

decision to deny him relief based on his prior marijuana

conviction. Why, then, should the fact that the claimed reason

for deeming the entry of the order of removal to have been unlawful

is that it violated the Fifth Amendment in and of itself require

us to reach a different conclusion?

- 53 -
 Consider the case of the non-English speaking child who

is ordered removed on a plainly unlawful basis in an uncounseled,

untranslated proceeding. Does her due process-based challenge to

the resulting removal order come up short, such that she may be

removed from the country pursuant to the only order of removal

actually entered against her (unlawfully entered though it was),

so long as a reviewing court can scan the record and find that a

different but lawful order of removal could have been entered and

then asserted as the basis for her removal?

The majority contends that Williams v. United States,

858 F.3d 708, 716 (1st Cir. 2017) supports its view that prejudice

under the Fifth Amendment turns not on whether orders actually

entered might have been unlawful but instead on whether orders

never entered might have been lawful. Maj. Op. at 32-33. But, it

does not. In Williams, a criminal defendant unsuccessfully sought

to have his lawful conviction on one charge overturned on the

ground that his counsel's ineffective assistance prevented him

from being convicted unlawfully based on a different charge. Id.

at 716. I do not see how that precedent provides any support for

the majority's notion that a never-entered, lawful order of removal

necessarily suffices to make up for an unlawful one that was

entered.

The majority also points as support for its view of Fifth

Amendment prejudice to Rivera-Rivera v. United States, 827 F.3d

- 54 -
184 (1st Cir. 2016), which holds that prejudice under Strickland

v. Washington, 466 U.S. 668 (1984), requires a showing that the

"result of the criminal proceeding would have been different' if

counsel had performed as the defendant asserts he should have."

Rivera-Rivera, 827 F.3d at 187 (quoting Hensley v. Roden, 755 F.3d

724, 736 (1st Cir. 2014)); Maj. Op. at 31. But, nothing in Rivera-

Rivera suggests that the "result" that the court had in mind was

a conviction that could have been entered but was not rather than

the actual conviction that was the subject of the defendant's

challenge. See Rivera-Rivera, 827 F.3d at 187 (finding no

prejudice where counsel's failure to move for a judgment of

acquittal did not affect the outcome of the case because the motion

would have failed and the conviction would have stood). For that

reason, it adds nothing to point out, as the majority does, that

there must be a substantial likelihood that the "result" would be

different here, because Moncrieffe makes clear that the only

removal order that was entered could not have been lawfully

entered.

The majority, finally, suggests that, precedent aside,

efficiency provides support for embracing its view of prejudice.

It explains that a prejudice rule that prevents an unlawful removal

order from being given effect when it is clear that a lawful order

could have been entered in its stead will force the government

either to restart the removal proceedings all over again for no

- 55 -
good reason or to load up on grounds for removal from the get go.

Maj. Op. at 33-34.

But, I would have thought that such "inefficiency" is

more of a feature than a bug of the attractive way in which we

have chosen to organize our system of administrative adjudication.

It ensures that a consequence as serious as expulsion from the

country follows from an actual lawful order and not merely a

hypothetical one that was never entered at all.

In any event, insofar as efficiency is our guide, the

majority's approach hardly promotes it. Under its approach, must

a defendant -- or a court -- in an unlawful reentry proceeding

anticipate and refute every conceivable legal ground that the

government could have attempted to predicate an order of removal

on when seeking the removal of that individual, notwithstanding

that "the order" of removal that was actually entered and that is

the only one that "is outstanding" at the time of the alleged

unlawful reentry is the product of constitutionally deficient

legal assistance? And if not, what are the limits on either the

defendant's or the court's obligation to account for those

possibilities?

The more straightforward view of prejudice that grounds

Castillo-Martinez's motion to dismiss his indictment ensures that

such time-consuming hypothetical inquiries need not be undertaken.

It directs the reviewing court to focus not on a might-have-been

- 56 -
world of non-existent orders but on something readily discernable

-- the lawfulness of the administrative order that was in fact

entered and that the government seeks to use to prove its criminal

case.

C.

The majority and the District Court do each separately

also conclude that Castillo-Martinez cannot make the requisite

showing of prejudice under (d)(3). Perhaps in doing so the

majority and the District Court mean to assert nothing more than

that, because Castillo-Martinez cannot show the requisite degree

of prejudice under the Fifth Amendment, he cannot show the degree

of prejudice required by this statutory provision. If so, then

their contention fails for all the reasons that I have just given.

But, if they mean to suggest that (d)(3) imposes a more onerous

prejudice requirement than the one that the Fifth Amendment imposes

of its own accord, then I cannot agree.

The use of the definite article "the" in "the entry of

the order" gives little hint that there is a need to show that

"the entry of any order of removal" that the immigration judge

could have issued in those proceedings but did not would have been

"fundamentally unfair." Indeed, the use of the phrase "the entry"

further underscores that point by doubling down on the provision's

use of the definite article and imposing "a temporal limitation on

the . . . court's inquiry" to ensure "that § 1326(d)'s prejudice

- 57 -
inquiry does not extend beyond the fairness of the deportation

order itself." United States v. Scott, 394 F.3d 111, 118-19 (2d

Cir. 2005).

That "the order" referenced in (d)(3) would appear to be

the same "order" referenced in subsection (a) reinforces the same

conclusion. A hypothetical order of removal that never was cannot

be "an order . . . that is outstanding" at the time the unlawful

reentry occurs, id. at § 1326(a).

Nor do the words "fundamentally unfair" in (d)(3)

suggest otherwise. I suppose the notion must be that those words

may be read to imply that the actual order that was

entered -- though itself unreliable proof of that element due to

its insulation from judicial review and the unfairness of the

proceedings that produced it -- may spring back into respectability

whenever the record shows that some other order could have been

entered to take its place. If so, I guess the further notion must

be that the words "fundamentally unfair" in (d)(3) may be read to

imply that the tainted and unlawful order may be used in that event

to prove the crime without thereby causing any fundamental

unfairness, because we can be confident that a different (though

never entered) order could have taken its place.

But, to describe that notion of why reliance on the

tainted (and never judicially reviewed) order of removal is not

fundamentally unfair is to undermine it. The phrase itself --

- 58 -
"fundamentally unfair" -- is plainly included to ensure that the

provision accords with Mendoza-Lopez. The due process concern

that the Court identified there, however, inhered in the

government's use of administrative orders as if they were "reliable

proof" of an element of a criminal offense, even when those orders

resulted from fundamentally unfair administrative proceedings that

had never been judicially reviewed. The Court at no point

suggested that such a concern would disappear just because some

other more reliable means of proving that element of the criminal

offense could have existed but does not.18

In this respect, purpose would seem to confirm what text

indicates. The surest way to prevent what concerned the Court in

Mendoza-Lopez from occurring in § 1326 prosecutions is to prevent

the government from relying on an order entered in violation of

due process -- and insulated from intended direct judicial review

-- to prove an element of the unlawful reentry offense.

Finally, this easy-to-implement understanding of (d)(3)

is not mine alone. See United States v. Martinez, 786 F.3d 1227,

Nor can Mendoza-Lopez's references to structural
18

defects that are preclusive of all judicial review be read to
suggest that such defects must be shown under (d)(3)'s
"fundamentally unfair" prong. In addition to the fact that nothing
in Mendoza-Lopez itself suggests that defects of that type must be
shown, (d)(2) independently requires a showing that the underlying
administrative proceedings "improperly deprived" the § 1326
defendant of "judicial review" of "the order" entered in them and
so would be superfluous if (d)(3) were so read.

- 59 -
1232-33, 1233 n.2 (9th Cir. 2015); Lopez-Chavez, 757 F.3d at 1043

("[H]ad counsel presented the Seventh Circuit with the question of

which rule to adopt, [the defendant's] order of removal would have

been held unlawful and would not have gone into effect. Thus,

[the defendant's] counsel's ineffectiveness not only may have

affected, but actually did, 'affect[] the outcome of the

proceedings.'" (last alteration in original) (footnote omitted)

(quoting Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir.

2013))); United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th

Cir. 2006) ("[Defendant's] Notice to Appear charged him as

removable only for having committed an aggravated felony; . . .

[because his] prior conviction did not fit that definition . . . ,

[he] was removed when he should not have been and clearly suffered

prejudice."); Scott, 394 F.3d at 118-19. But see United States v.

Martinez-Hernandez, 932 F.3d 1198, 1204 (9th Cir. 2019) (holding

that the erroneous classification of predicate convictions as

crimes of violence under 8 U.S.C. § 1101(a)(43)(F) did not render

the defendants' NTAs invalid because those convictions could have

been classified instead as theft offenses under 8 U.S.C.

§ 1101(a)(43)(G), which also would have made the defendants

removable as aggravated felons); United States v. Almanza-Vigil,

912 F.3d 1310, 1323 n.10 (10th Cir. 2019). And insofar as this

Court's decision in United States v. Soto-Mateo might be read to

take the opposite view, it does so only in dicta and without

- 60 -
considering the Ninth Circuit's alternative approach. See 799

F.3d 117, 124 (1st Cir. 2015).

IV.

For all these reasons, then, I am not persuaded that

either the District Court or the majority has provided a sound

reason for concluding that Castillo-Martinez has failed to show

what he must to satisfy § 1326(d). I thus would vacate and remand

the District Court's order denying his motion to dismiss his

indictment. By following that approach, we would ensure that

whatever arguments remain for denying the motion may be considered

in the ordinary course and thus only after full contestation

between the parties. We also would ensure that, in deciding

whether to permit this criminal prosecution to go forward, we would

not be unnecessarily and unduly cabining the protections afforded

by the Fifth Amendment to those facing removal and by § 1326(d) to

those facing criminal prosecution for the crime of unlawful re-

entry.

Accordingly, I respectfully dissent.

- 61 -