FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10260
Plaintiff-Appellee, D.C. No.
2:19-cr-01331-
v. DJH-1
PRAXEDIS SAUL PORTILLO-
GONZALEZ, AKA Alex Ganes- OPINION
Diarte, AKA Jose Omar Reyes-
Hernan,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted November 17, 2022
Phoenix, Arizona
Filed August 31, 2023
Before: Jay S. Bybee, John B. Owens, and Daniel P.
Collins, Circuit Judges.
Opinion by Judge Collins
2 USA V. PORTILLO-GONZALEZ
SUMMARY *
Criminal Law
The panel affirmed the district court’s judgment in a case
in which Praxedis Saul Portillo-Gonzalez entered a
conditional guilty plea to unlawful reentry by a previously
removed alien, in violation of 8 U.S.C. § 1326, after the
district court denied his motion under 8 U.S.C. § 1326(d) to
dismiss the indictment.
Portillo-Gonzalez contended that his indictment should
have been dismissed on the ground that the removal order
underlying his unlawful reentry charge was invalid due to an
error by the immigration judge (“IJ”), at his removal hearing,
as to whether he was eligible for voluntary
departure. Portillo-Gonzalez argued that, under controlling
Ninth Circuit precedent, the IJ’s error sufficed to establish
that he satisfied all of the § 1326(d) requirements for
collaterally challenging a removal order in the context of a
§ 1326 prosecution. While he acknowledged that the
Supreme Court’s decision in United States v. Palomar-
Santiago, 141 S. Ct. 1615 (2021), abrogated Ninth Circuit
caselaw holding that such IJ errors may excuse an alien from
satisfying certain of § 1326(d)’s requirements, Portillo-
Gonzalez argued that it left undisturbed this court’s related
caselaw holding that such errors may serve to automatically
establish that those requirements have been met.
The panel held that, in the respects relevant here,
Palomar-Santiago abrogated that caselaw as well. Even
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. PORTILLO-GONZALEZ 3
assuming arguendo that the IJ’s incorrect statement about
Portillo-Gonzalez’s eligibility for voluntary departure
violated due process and rendered his removal proceedings
“fundamentally unfair” under 8 U.S.C. § 1326(d)(3), that
would not automatically or “effectively” satisfy the
requirement in 8 U.S.C. § 1326(d)(1) that the alien exhausted
available administrative remedies, or the requirement in 8
U.S.C. § 1326(d)(2) that the deportation proceedings
improperly deprived the alien of an opportunity for judicial
review. The panel therefore concluded that Portillo-
Gonzalez remains subject to § 1326(d)’s general rule that he
may not challenge the validity of his predicate removal
order.
COUNSEL
Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Federal
Public Defender’s Office, Phoenix, Arizona; for Defendant-
Appellant.
Timothy H. Courchaine (argued) and Ryan J. McCarthy,
Assistant United States Attorneys; Krissa M. Lanham,
Appellate Division Chief; Gary M. Restaino, United States
Attorney; United States Attorney’s Office, Phoenix,
Arizona; for Plaintiff-Appellee.
4 USA V. PORTILLO-GONZALEZ
OPINION
COLLINS, Circuit Judge:
Defendant-Appellant Praxedis Saul Portillo-Gonzalez
appeals from his conviction after a conditional plea of guilty
to a single count of unlawful reentry by a previously
removed alien in violation of 8 U.S.C. § 1326. Portillo-
Gonzalez contends that his indictment should have been
dismissed on the ground that the 2000 removal order
underlying his prior removals was invalid due to an error by
the immigration judge (“IJ”), at his removal hearing, as to
whether he was eligible for voluntary departure. Portillo-
Gonzalez argues that, under controlling Ninth Circuit
precedent, the IJ’s error sufficed to establish that he satisfied
all of the statutory requirements for collaterally challenging
a removal order in the context of a § 1326 prosecution. See
8 U.S.C. § 1326(d) (listing these requirements). Thus, while
he acknowledges that the Supreme Court’s decision in
United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021),
abrogated Ninth Circuit caselaw holding that such IJ errors
may excuse an alien from satisfying certain of § 1326(d)’s
requirements, he insists that it left undisturbed our related
caselaw holding that such errors may serve to automatically
establish that those requirements have been met. Because
we conclude that, in the respects relevant here, Palomar-
Santiago abrogated that caselaw as well, we reject Portillo-
Gonzalez’s contentions and affirm the district court’s
decision and judgment.
USA V. PORTILLO-GONZALEZ 5
I
A
Portillo-Gonzalez illegally entered in the United States
in June 2000 near Sasabe, Arizona. On December 14, 2000,
Portillo-Gonzalez was convicted in Arizona state court of
one count of possession of drug paraphernalia and was
sentenced to three years’ probation. The next day, Portillo-
Gonzalez was released from state custody into the custody
of federal immigration authorities, and he was served with a
“Notice to Appear” alleging that he was removable under
§ 212(a)(6)(A)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in
the United States without being admitted or paroled. On
December 21, 2000, Portillo-Gonzalez appeared before an
IJ, conceded that he was removable as charged, and was
ordered removed to Mexico. Portillo-Gonzalez confirmed
to the IJ that he did not want to appeal to the Board of
Immigration Appeals (“BIA”), and he was removed that
same day.
Portillo-Gonzalez subsequently re-entered the United
States illegally multiple times, resulting in six additional
removals in 2002, 2003, 2008, 2010, 2012, and 2017.
During his time in the United States, Portillo-Gonzalez
amassed a variety of additional criminal convictions,
including six convictions in state court, from 2002–2019, for
driving while impaired or under the influence; a state court
conviction in 2010 for possession of drug paraphernalia; and
two federal convictions in the District of Arizona in 2012
and 2016 for unlawful reentry by a previously removed alien
in violation of 8 U.S.C. § 1326.
6 USA V. PORTILLO-GONZALEZ
While Portillo-Gonzalez was still on supervised release
from his 2015 federal conviction, he again unlawfully re-
entered the United States on or about December 6, 2018.
Based on this unlawful reentry, the U.S. Probation Office in
February 2019 filed a petition to revoke Portillo-Gonzalez’s
supervised release. Thereafter, in November 2019, Portillo-
Gonzalez was indicted for a third violation of § 1326.
Specifically, the indictment alleged that Portillo-Gonzalez
was previously removed on February 27, 2017 and that he
was thereafter found in the United States in June 2019
without having obtained the express consent of immigration
authorities to reapply for admission.
B
Portillo-Gonzalez moved to dismiss the indictment on
the ground that the removal order underlying his unlawful
reentry charge under § 1326 was invalid. Section 1326(d)
expressly authorizes such a collateral challenge pursuant to
a 1996 statutory amendment enacted in response to the
Supreme Court’s decision in United States v. Mendoza-
Lopez, 481 U.S. 828 (1987). In Mendoza-Lopez, the Court
held that the then-existing version of § 1326 violated due
process to the extent that it did not allow a collateral
challenge to an underlying removal order that was issued
during procedurally defective removal proceedings that
“effectively eliminate[d] the right of the alien to obtain
judicial review.” Id. at 839; see also id. at 839 n.17. That
constitutional defect was addressed in the following new
subsection (d):
In a criminal proceeding under this section,
an alien may not challenge the validity of the
deportation order described in subsection
USA V. PORTILLO-GONZALEZ 7
(a)(1) or subsection (b) unless the alien
demonstrates that—
(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). 1
Here, the predicate 2017 removal alleged in Portillo-
Gonzalez’s indictment rested on the reinstatement of his
2000 removal order. Portillo-Gonzalez argued that the 2000
order was “fundamentally unfair” within the meaning of
§ 1326(d)(3) because it was issued at a hearing during which
the IJ had misinformed him concerning his potential
eligibility for voluntary departure in lieu of removal.
Specifically, the IJ told Portillo-Gonzalez at his 2000
removal hearing in Tucson that he could not be considered
for voluntary departure unless he was then in possession of
$5 to cover the cost of travel to Nogales, where he would be
escorted to the border. After Portillo-Gonzalez told the IJ
that he did not have $5 with him, the IJ ordered him to be
1
Section 1326(a) defines the basic offense of unlawful reentry by a
previously removed alien. Subsection (b) provides for enhanced
penalties if certain additional elements are established, such as, for
example, where the alien’s prior removal “was subsequent to a
conviction for commission of an aggravated felony.” 8 U.S.C.
§ 1326(b)(2).
8 USA V. PORTILLO-GONZALEZ
removed to Mexico. In his motion to dismiss the indictment,
Portillo-Gonzalez asserted that there was no such limitation
on his ability to be considered for voluntary departure
because the BIA had held in 1999 that an alien seeking
voluntary departure before completion of removal
proceedings “need not show that . . . he has the financial
means to depart the United States.” In re Arguelles-Campos,
22 I. & N. Dec. 811, 817 (B.I.A. 1999). 2 Portillo-Gonzalez
further argued that the IJ’s error was prejudicial because, had
the IJ informed him that he “could ask for time to obtain the
funds” to voluntarily depart, there was an adequate
evidentiary basis to conclude that he would have been
eligible for voluntary departure.
As to the additional requirements of § 1326(d)(1) and
(d)(2) relating to exhaustion of remedies and deprivation of
judicial review, Portillo-Gonzalez argued that, because he
had been prejudiced by the IJ’s “improper advisal,” he was
“excused” under Ninth Circuit precedent from having to
satisfy those two requirements.
While Portillo-Gonzalez’s motion was pending, the
Supreme Court issued its decision in United States v.
Palomar-Santiago, 141 S. Ct. 1615 (2021). There, the Court
held that “each of the statutory requirements of § 1326(d) is
2
On appeal, Portillo-Gonzalez persuasively suggests that the IJ’s error
was apparently based on the application of an earlier regulation that was
no longer in effect at the time of his hearing. See 8 C.F.R. § 244.1 (1996)
(stating that an alien was eligible for voluntary departure if, inter alia,
“the alien establishes that he/she is willing and has the immediate means
with which to depart promptly from the United States” (emphasis
added)); see also 62 Fed. Reg. 10312, 10377, 10382 (Mar. 6, 1997)
(making extensive changes to immigration regulations in light of recent
statutory amendments and effectively moving 8 C.F.R. § 244.1’s
language, as amended, to a new § 240.56 that would apply only to
removal proceedings “commenced prior to April 1, 1997”).
USA V. PORTILLO-GONZALEZ 9
mandatory,” and it expressly rejected our precedent holding
that, in certain circumstances, “defendants are ‘excused from
proving the first two requirements’ of § 1326(d).” Id. at
1620, 1622 (citation omitted). After receiving supplemental
briefing concerning the import of Palomar-Santiago, the
district court denied the motion, concluding that none of the
three requirements of § 1326(d) were satisfied.
C
After the district court denied Portillo-Gonzalez’s
motion to dismiss the indictment, Portillo-Gonzalez entered
into a plea agreement with the Government that would
resolve both his pending criminal case as well as the
revocation of his supervised release from his 2015
conviction under § 1326. To assist in accomplishing that,
the Government obtained a superseding indictment that
(1) changed the predicate prior removal in Portillo-
Gonzalez’s current case from his 2017 removal to the 2012
removal that had been the predicate of his 2015 conviction;
and (2) pushed back the date on which Portillo-Gonzalez
was allegedly found in the United States from June 2019 to
December 2018. Under the plea agreement, Portillo-
Gonzalez expressly preserved his ability to appeal the denial
of his motion to dismiss the original indictment. 3 See FED.
R. CRIM. P. 11(a)(2).
3
The parties have not contended that the subsequent filing of a
superseding indictment has any effect on our ability to address Portillo-
Gonzalez’s appeal of the earlier denial of his motion to dismiss.
Although the documents from Portillo-Gonzalez’s 2012 removal are not
in the record, that removal presumably was also based on the same
underlying 2000 removal order that was the basis for the 2017 removal
and that was the subject of the district court’s decision. Because a ruling
in Portillo-Gonzalez’s favor on appeal would thus also invalidate the
superseding indictment, the filing of that indictment did not moot the
10 USA V. PORTILLO-GONZALEZ
With respect to Portillo-Gonzalez’s conviction under
§ 1326, the district court on August 31, 2021 sentenced him
to 42 months in prison, to run concurrently with his latest
state conviction. That sentence was well below the
Guidelines range of 63–78 months and the plea agreement’s
binding sentencing cap of 78 months. See FED. R. CRIM. P.
11(c)(1)(C). Portillo-Gonzalez was ordered to serve three
years of supervised release after completing his prison term.
His prior supervised release from his 2015 conviction was
terminated, and the pending revocation proceedings from
that case were dismissed.
Portillo-Gonzalez timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291.
II
We review de novo the district court’s denial of Portillo-
Gonzalez’s motion to dismiss the indictment. See United
States v. Gonzalez-Flores, 804 F.3d 920, 926 (9th Cir. 2015).
In addressing whether Portillo-Gonzalez made a sufficient
showing to satisfy the statutory requirements for a collateral
challenge against his prior removal order, we begin by
reviewing those requirements and the Supreme Court’s
recent analysis of them in Palomar-Santiago.
A
Section 276 of the INA—which is widely known as
“§ 1326” due to its classification to that section of the
unenacted title 8 of the United States Code—criminalizes
unlawful reentry by a previously removed alien. See
8 U.S.C. § 1326(a). As noted earlier, see supra at 6–7,
district court’s earlier order denying Portillo-Gonzalez’s motion to
dismiss. See United States v. Mendez, 28 F.4th 1320, 1323 n.2 (9th Cir.
2022).
USA V. PORTILLO-GONZALEZ 11
§ 1326 now contains a subsection that explicitly addresses
the extent to which an alien being prosecuted for unlawful
reentry under that statute may collaterally challenge the prior
removal order on which the prosecution rests. Specifically,
§ 1326(d) first establishes the general rule that “[i]n a
criminal proceeding under this section, an alien may not
challenge the validity of the deportation order” that is an
element of the offenses defined in § 1326(a) or (b). See
8 U.S.C. § 1326(d) (emphasis added). The statute then
provides a limited exception to that rule under which an alien
may establish the invalidity of the predicate removal order
by showing that: (1) “the alien exhausted any administrative
remedies that may have been available” to contest the order;
(2) the deportation proceedings that led to the order
“improperly deprived the alien of the opportunity for judicial
review”; and (3) the removal order was “fundamentally
unfair.” See id. These three elements, particularly the
second, serve to ensure that a collateral challenge will be
authorized in any case in which Mendoza-Lopez’s due
process holding would require it. See Mendoza-Lopez, 481
U.S. at 839 (holding that a collateral challenge during a
criminal prosecution must be provided when the defendant
makes a showing, not merely that there was a defect in the
administrative proceedings, but also that, as a result, “the
deportation proceeding effectively eliminate[d] the right of
the alien to obtain judicial review”).
In Palomar-Santiago, the Supreme Court held that,
because these three “requirements are connected by the
conjunctive ‘and,’” it follows that “defendants must meet all
three” to mount a successful collateral challenge to their
removal order under § 1326(d). 141 S. Ct. at 1620–21. The
Court therefore reversed our decision in that case, which had
followed Ninth Circuit law that “excused” defendants from
12 USA V. PORTILLO-GONZALEZ
proving the first two requirements in certain cases. Id. at
1620.
Specifically, in Palomar-Santiago, the defendant alien
had been removed in 1998 under INA § 237(a)(2)(A)(iii) on
the ground that he had been convicted of an aggravated
felony. See id. at 1619–20 (citing 8 U.S.C.
§ 1227(a)(2)(A)(iii)). However, a 2004 Supreme Court
decision later made clear that his offense did not qualify as
an aggravated felony, and “Palomar-Santiago’s removal
order thus never should have issued.” Id. at 1620. In
affirming the dismissal of Palomar-Santiago’s subsequent
indictment for a violation of § 1326, we held that, because
Palomar-Santiago had shown that “the removal should not
have occurred,” he did not need to make a further showing
to satisfy the statute’s third requirement, i.e., that the entry
of the order was “fundamentally unfair.” United States v.
Palomar-Santiago, 813 F. App’x 282, 284 (9th Cir. 2020)
(citing United States v. Aguilera-Rios, 769 F.3d 626, 630
(9th Cir. 2014)); see also Aguilera-Rios, 769 F.3d at 630
(holding that “[i]f Aguilera ‘was removed when he should
not have been,’ his 2005 removal was fundamentally unfair”
(citation omitted)). As to the remaining two prongs, we
applied settled “Ninth Circuit precedent providing that
defendants are ‘excused from proving the first two
requirements’ of § 1326(d) if they were ‘not convicted of an
offense that made [them] removable.’” Palomar-Santiago,
141 S. Ct. at 1620 (alteration in original) (quoting United
States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)).
The Supreme Court reversed, holding that all three
requirements must be satisfied, even where an alien’s
removal order was substantively invalid. See Palomar-
Santiago, 141 S. Ct. at 1621. The Court held that, in addition
to ignoring the statute’s use of the conjunctive “and” in
USA V. PORTILLO-GONZALEZ 13
setting forth the three requirements, our excusal of
§ 1326(d)’s first two requirements contravened Supreme
Court authority concerning statutory exhaustion
requirements. Id. The Court stated that “[w]hen Congress
uses ‘mandatory language’ in an administrative exhaustion
provision, ‘a court may not excuse a failure to exhaust,’” but
“that is what the Ninth Circuit’s rule does.” Id. (quoting
Ross v. Blake, 578 U.S. 632, 639 (2016)). The Court further
held that the mere fact that a removal order was substantively
invalid did not, without more, demonstrate compliance with
§ 1326(d)’s first two requirements. As the Court explained:
Without the benefit of the Ninth Circuit’s
extrastatutory exception, § 1326(d)’s first
two procedural requirements are not satisfied
just because a noncitizen was removed for an
offense that did not in fact render him
removable. Indeed, the substantive validity
of the removal order is quite distinct from
whether the noncitizen exhausted his
administrative remedies (by appealing the
immigration judge’s decision to the BIA) or
was deprived of the opportunity for judicial
review (by filing a petition for review of a
BIA decision with a Federal Court of
Appeals).
Id. at 1621 (emphasis added).
B
In view of Palomar-Santiago’s clear holding, Portillo-
Gonzalez does not contend that he was excused from
satisfying any of the three requirements of § 1326(d).
Instead, he contends that (1) he has shown that his 2000
14 USA V. PORTILLO-GONZALEZ
removal proceeding was “fundamentally unfair” due to the
IJ’s erroneous statements concerning his eligibility for
voluntary departure, see 8 U.S.C. § 1326(d)(3); and (2) the
IJ’s “erroneous advice effectively satisfies” the remaining
two requirements (emphasis added). We need not decide
whether Portillo-Gonzalez’s first contention is correct. Even
assuming arguendo that the IJ’s incorrect statement about
Portillo-Gonzalez’s eligibility for voluntary departure
violated due process and rendered his removal proceedings
“fundamentally unfair,” that would not automatically or
“effectively” satisfy § 1326(d)’s other two requirements.
In contending that he “effectively satisfie[d]” the first
two elements of § 1326(d) here, Portillo-Gonzalez relies on
a line of cases in which we have held that “an alien who is
not made aware of ‘his or her apparent eligibility’ for relief
has had no ‘meaningful opportunity to appeal’ the removal
and seek such relief” and has not validly waived his or her
right to appeal. United States v. Gonzalez-Villalobos, 724
F.3d 1125, 1130 (9th Cir. 2013) (emphasis added) (citations
omitted). Portillo-Gonzalez argues that, because no appeal
was meaningfully available and any waiver of appeal was
not “considered and intelligent,” id. at 1131 (citation
omitted), he has exhausted “any administrative remedies that
may have been available to seek relief against the order.”
8 U.S.C. § 1326(d)(1) (emphasis added). Therefore, he
asserts, he has “satisf[ied] (d)(1).” Gonzalez-Villalobos, 724
F.3d at 1130. And because he thus had no meaningfully
available administrative appeal, he contends that he was also
necessarily “deprived of the opportunity for judicial review,
satisfying (d)(2).” Id.; see also United States v. Pallares-
Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (“Effective
deprivation of an alien’s administrative appeal serves to
deprive him of the opportunity for judicial review as well.”).
USA V. PORTILLO-GONZALEZ 15
As a result, Portillo-Gonzalez asserts, he has not been
“excused” from the requirements of § 1326(d)(1) or (d)(2);
he has satisfied them. See United States v. Rojas-Pedroza,
716 F.3d 1253, 1262 (9th Cir. 2013) (“Under our case law, a
defendant can meet all these requirements [of § 1326(d)] by
establishing that the IJ failed to inform the defendant ‘of his
or her apparent eligibility’ for relief . . . and that the
defendant had plausible grounds for relief.” (emphasis
added) (quoting 8 C.F.R. § 1240.11(a)(2))); United States v.
Arias-Ordonez, 597 F.3d 972, 977 (9th Cir. 2010) (“Our
circuit law is also well established that § 1326(d)’s
requirements of exhaustion and deprivation of judicial
review are satisfied when the government misinforms an
alien that he is ineligible for relief.” (emphasis added)). We
conclude that this line of case authority did not survive the
Supreme Court’s decision in Palomar-Santiago.
The defendant in Palomar-Santiago raised a comparable
argument, and the Supreme Court expressly rejected it.
Specifically, Palomar-Santiago argued that, because an alien
“cannot be expected to know that the immigration judge
might be wrong” in his or her rulings, “further administrative
review of a removal order is not ‘available’ when an
immigration judge erroneously informs a noncitizen,” as in
that case, “that his prior conviction renders him removable.”
141 S. Ct. at 1621 (quoting 8 U.S.C. § 1326(d)(1)).
Palomar-Santiago further argued that the resulting
“unavailability of administrative review before the BIA
would also mean that noncitizens like [him] do not have the
‘opportunity’ for judicial review under § 1326(d)(2),
because they may not seek review of a removal order in
federal court without first appealing the order to the BIA.”
Id. at 1621 n.3. The Supreme Court rejected this line of
argument, holding that an “immigration judge’s error on the
16 USA V. PORTILLO-GONZALEZ
merits” does not establish that an appeal is unavailable. Id.
at 1621. After all, “[a]dministrative review of removal
orders exists precisely so noncitizens can challenge the
substance of immigration judges’ decisions.” Id. A
substantive error of immigration law “does not excuse the
noncitizen’s failure to comply with a mandatory exhaustion
requirement if further administrative review, and then
judicial review if necessary, could fix that very error.” Id.
Palomar-Santiago forecloses Portillo-Gonzalez’s
argument here. The gravamen of Portillo-Gonzalez’s
argument is that the IJ misapprehended the standards for
eligibility of voluntary departure, relying on an outdated
regulation that was inconsistent with then-current law. See
supra note 2. But nothing about that substantive error “can
alone render further review of [that] adverse decision
‘unavailable.’” 141 S. Ct. at 1621 (citation omitted).
Further review is “available,” under Palomar-Santiago,
because “further administrative review, and then judicial
review if necessary, could fix that very error.” Id. Indeed,
if Portillo-Gonzalez is correct that the IJ relied on a
superseded regulation and ignored controlling BIA
precedent, an appeal would have fixed that very error.
Because “the substantive validity of the removal order is
quite distinct from whether the noncitizen exhausted his
administrative remedies,” the fact that Portillo-Gonzalez
“cannot be expected to know that the immigration judge
might be wrong” about his eligibility for voluntary departure
“does not excuse [his] failure to comply with a mandatory
exhaustion requirement.” Id. at 1621. And although Ross
recognized that there might be “‘circumstances in which an
administrative remedy, although officially on the books, is
not capable of use to obtain relief,’” a substantive error by
USA V. PORTILLO-GONZALEZ 17
the IJ—even one involving some “complexity”—is not one
of them. Id. (quoting Ross, 578 U.S. at 643).
Portillo-Gonzalez argues that Palomar-Santiago is
distinguishable, because the IJ’s error here “was a
procedural one,” not a substantive one. It was “procedural,”
he insists, because “the IJ’s incorrect representation to [him]
that he was ineligible to seek pre-conclusion voluntary
departure” affected his decision whether to waive or pursue
an appeal, thereby vitiating his waiver of appeal and
rendering his hearing procedurally defective. As an initial
matter, we reject the premise of Portillo-Gonzalez’s
argument. Palomar-Santiago did not limit its holding to an
IJ’s substantive errors. On the contrary, the Court expressly
rejected the argument that § 1326(d)’s requirements apply
differently to substantive errors than to procedurals ones: as
the Court explained, both types of objections are
“challenge[s]” to such orders and are therefore governed by
the limitations of § 1326(d). See Palomar-Santiago, 141
S. Ct. at 1621–22.
This effort to evade Palomar-Santiago fails for an
additional reason. Whether Portillo-Gonzalez was eligible
for voluntary departure is a substantive issue, and trying to
recast it in procedural garb does not change that fact.
Moreover, the argument that the IJ’s substantive error
vitiated Portillo-Gonzalez’s decision whether to take an
appeal, thereby rendering an appeal “unavailable,”
ultimately rests on the very same premise that the Supreme
Court unanimously disapproved in Palomar-Santiago—viz.,
that, because aliens “cannot be expected to know that the
immigration judge might be wrong,” they “will not
recognize a substantive basis for appeal to the BIA,” and
therefore “administrative review is not practically
‘available’ under § 1326(d)(1).” 141 S. Ct. at 1621. In light
18 USA V. PORTILLO-GONZALEZ
of this square holding, we cannot accept Portillo-Gonzalez’s
contention that the IJ’s error about the scope of voluntary
departure tainted his subjective understanding about the
value of an appeal, thereby causing an administrative appeal
to be not “available” within the meaning of § 1326(d)(1).
And to the extent that our prior precedent has endorsed such
an argument, it is clearly irreconcilable with Palomar-
Santiago and has been abrogated by the Supreme Court’s
decision in that case. See Miller v. Gammie, 335 F.3d 889,
899–900 (9th Cir. 2003) (en banc).
Portillo-Gonzalez further contends that Palomar-
Santiago endorsed Ross’s understanding of what counts as
an “available” remedy for purposes of a mandatory
exhaustion requirement, and that his situation falls within the
types of cases in which Ross indicated that administrative
procedures would not count as “available.” This contention
also fails.
Ross involved the mandatory exhaustion requirement of
the Prison Litigation Reform Act, which requires that
inmates “exhaust ‘such administrative remedies as are
available’ before bringing suit to challenge prison
conditions.” 578 U.S. at 635 (quoting 42 U.S.C.
§ 1997e(a)). The Court held that the specification that the
remedies be “available” meant that “an inmate is required to
exhaust those, but only those, grievance procedures that are
‘capable of use’ to obtain ‘some relief for the action
complained of.’” Id. at 642 (emphasis added) (citation
omitted). Ross then articulated “three kinds of
circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief”:
when (1) “it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates”; (2) the “administrative scheme” is “so
USA V. PORTILLO-GONZALEZ 19
opaque” that “no ordinary prisoner can discern or navigate
it”; or (3) “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 643–44. We
assume that Portillo-Gonzalez is correct in asserting that,
under Palomar-Santiago, these same three exceptions apply,
mutatis mutandis, to the exhaustion requirement in
§ 1326(d)(1). Portillo-Gonzalez argues that this case falls
within Ross’s third category because, in his view, the IJ’s
“misrepresentation” about the availability of voluntary
departures “thwart[ed]” him from “taking advantage” of an
administrative appeal. Ross, 578 U.S. at 644. We disagree.
As Portillo-Gonzalez acknowledges, the Ross Court
gave examples of cases involving claims falling within this
third category, and those examples involve either alleged
“threats” or “intimidation,” see 578 U.S. at 644 n.3 (quoting
Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013), and
Tuckel v. Grover, 660 F.3d 1249, 1252–53 (10th Cir. 2011));
an alleged “hide-and-seek” approach to “administrative
remedies,” id. (quoting Goebert v. Lee County, 510 F.3d
1312, 1323 (11th Cir. 2007)); or instances in which the
prisoner allegedly was either “misled . . . as to the existence
or rules of the grievance process so as to cause the inmate to
fail to exhaust such process,” id. (quoting Davis v.
Hernandez, 798 F.3d 290, 295 (5th Cir. 2015) (emphasis
added)), or “misled . . . into thinking that . . . he had done all
he needed to initiate the grievance process,” id. (quoting
Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011)
(emphasis added)). Portillo-Gonzalez does not contend that
this case involved threats, intimidation, or a “hide-and-seek”
approach, but only that he was misled by the IJ. But unlike
the allegations in the cases Ross cited, this case does not
involve misleading statements as to the procedural steps for
20 USA V. PORTILLO-GONZALEZ
pursuing administrative remedies. The record confirms that
the IJ correctly informed Portillo-Gonzalez of his right to
appeal and that in response to the IJ asking him whether he
would like to appeal the order of removal, Portillo-Gonzalez
answered “no.” There was no misrepresentation by the IJ as
to the existence of a right to appeal or as to the rules or
procedural steps governing such appeals. Accordingly, even
assuming that Palomar-Santiago’s discussion of Ross
adopts the latter case’s understanding of when an
administrative remedy is not “available,” this case does not
fall within any of the categories that Ross describes. Instead
of a misleading statement about appeal rights or procedures,
here there was a substantive mistake as to the availability of
relief from removal. Under Palomar-Santiago, that is not
enough to render an administrative appeal “unavailable.”
C
Because, under Palomar-Santiago, an administrative
appeal to the BIA was “available” to challenge Portillo-
Gonzalez’s 2000 removal order, his failure to exhaust that
remedy means that he did not satisfy § 1326(d)(1). Because
he could have sought judicial review had he taken such an
appeal, he was not “deprived . . . of the opportunity for
judicial review” and therefore did not satisfy § 1326(d)(2).
And because he must satisfy all three requirements to invoke
§ 1326(d)’s exception, see Palomar-Santiago, 141 S. Ct. at
1620–21, he remains subject to § 1326(d)’s general rule that
he “may not challenge the validity” of his predicate removal
order. See 8 U.S.C. § 1326(d). The district court therefore
properly denied Portillo-Gonzalez’s motion to dismiss the
indictment. Its judgment is therefore affirmed.
AFFIRMED.