holding that 18 U.S.C. § 16(b) is unconstitutionally vague
How later courts described this case
- holding that 18 U.S.C. § 16(b) is unconstitutionally vague
- emphasizing “factual distinctions between the situation of the immigrant in Partible and” the present case
- “Arguments raised in a perfunctory manner, such as in a footnote, are waived.” (quoting United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc))
- describing 8 U.S.C. § 1229b(b)(1) as a “discretionary relief” provision
Written by the judges who cited it.
The opinion
Case: 24-50213 Document: 82-1 Page: 1 Date Filed: 07/23/2025
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 24-50213
consolidated with FILED
No. 24-50224 July 23, 2025
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ismael Adan Ortiz-Rodriguez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:23-CR-257-1,
4:23-CR-278-1
______________________________
Before Richman, Willett, and Douglas, Circuit Judges.
Priscilla Richman, Circuit Judge:
Ismael Adan Ortiz-Rodriguez was removed from the United States by
DHS agents pursuant to expedited removal proceedings that began in 2017.
In 2023, Ortiz-Rodriguez was convicted of Illegal Reentry into the United
States under 8 U.S.C. § 1326(a). Prior to trial, Ortiz-Rodriguez moved to
dismiss his indictment by collaterally attacking his 2017 deportation order
under 8 U.S.C. § 1326(d). The district court denied his motion.
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c/w No. 24-50224
On appeal, Ortiz-Rodriguez argues that he satisfied § 1326(d) because
his 2017 expedited removal proceedings involved an unknowing and
involuntary waiver of judicial review and violated his due process rights by
erroneously determining that he had committed an aggravated felony. We
disagree, and we affirm the district court’s judgment.
I
Ortiz-Rodriguez is not a citizen of the United States but has lived in
the United States for most of his life. In February 2017, Ortiz-Rodriguez
pleaded guilty in Texas state court to “Evading Arrest or Detention” with a
vehicle, a third-degree felony. 1 Ortiz-Rodriguez was sentenced to two years
of imprisonment, but before his sentence ended, DHS began expedited
removal proceedings pursuant to 8 U.S.C. § 1228(b). In October 2017, DHS
agents served Ortiz-Rodriguez with a “Notice of Intent to Issue a Final
Administrative Removal Order” (also known as a “Notice of Intent” or “I-
851”), which informed him that he was deportable because his evading-arrest
conviction qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
In addition to summarizing the expedited removal procedures, 2 the
form notified Ortiz-Rodriguez that he could be represented by counsel (at his
own expense), explained that he had the right to file a petition for review of
the order in a United States Court of Appeals, and provided checkboxes
where Ortiz-Rodriguez could contest his deportability or request withholding
of removal on various grounds. The form is reproduced in full in the
Appendix. 3
_____________________
1
See Tex. Penal Code § 38.04.
2
See also Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013) (per
curiam) (summarizing expedited removal procedures).
3
Infra at 27-28.
2
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Agents “explained and/or served” the Notice of Intent to Ortiz-
Rodriguez in English, and Ortiz-Rodriguez signed to acknowledge that he
received the Notice of Intent. Ortiz-Rodriguez also affixed his signature and
printed his name within another section, beneath three checked boxes, which
stated:
[(1)] I Do Not Wish to Contest and/or to Request Withholding
of Removal[,] [which was the heading of the section and was in
bold font.]
[(2)] I admit the allegations and charge in this Notice of Intent.
I admit that I am deportable and acknowledge that I am not
eligible for any form of relief from removal. I waive my right to
rebut and contest the above charges. I do not wish to request
withholding or deferral of removal. I wish to be removed to
Mexico[.] [“Mexico” was handwritten.]
[(3)] I understand that I have the right to remain in the United
States for 14 calendar days in order to apply for judicial review.
I do not wish this opportunity. I waive this right.
DHS then prepared a Final Administrative Removal Order, served
the order on Ortiz-Rodriguez, and removed him in January 2018. At the time,
Ortiz-Rodriguez did not challenge or appeal the expedited removal.
Following his removal, Ortiz-Rodriguez reentered the United States
twice, and he pleaded guilty both times to illegal reentry pursuant to 8 U.S.C.
§ 1326. For each removal proceeding, DHS reinstated the October 2017
removal order and deported him. Then, in May 2023, Border Patrol agents
found Ortiz-Rodriguez in Texas, and Ortiz-Rodriguez “freely and readily
admitted” that he was “present in the United States without any
immigration documents allowing [him] to be in or remain in the United
States.” A federal grand jury indicted Ortiz-Rodriguez on one count of
violating 8 U.S.C. § 1326(a), which provides that “any alien who . . . has
been . . . deported, . . . and thereafter . . . enters, attempts to enter, or is at
3
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any time found in, the United States” without permission “shall be fined
under Title 18, or imprisoned not more than 2 years, or both.” 4
Ortiz-Rodriguez waived his right to a jury and agreed to a stipulated
bench trial. Ortiz-Rodriguez also moved to dismiss the indictment under 8
U.S.C. § 1326(d), which allows for a collateral attack on the validity of a prior
deportation order if certain prerequisites are met. 5 Ortiz-Rodriguez attacked
his 2017 expedited removal proceedings, arguing that his evading-arrest
felony conviction should no longer qualify as an aggravated felony based on a
2018 Supreme Court decision and subsequent Fifth Circuit decision that
resulted in Texas’s evading arrest offense no longer qualifying as a crime of
violence that would support removal. 6
The district court denied Ortiz-Rodriguez’s motion to dismiss,
holding that Ortiz-Rodriguez “failed to show that the [2017 expedited
removal] procedure denied him judicial review as required by § 1326(d).”
Ortiz-Rodriguez was found guilty and sentenced to fifty-one months of
imprisonment. Ortiz-Rodriguez’s notice of appeal was untimely, but the
district court granted his motion for an extension of time to file a notice of
appeal, 7 and Ortiz-Rodriguez appealed within the extended filing window.
This appeal is consolidated with Ortiz-Rodriguez’s appeal in case No.
24-50224, in which Ortiz-Rodriguez appealed from the revocation of a three-
year term of supervised release imposed as a result of a conviction in a prior
§ 1326 prosecution. The district court revoked Ortiz-Rodriguez’s
_____________________
4
8 U.S.C. § 1326(a).
5
Id. § 1326(d).
6
See Sessions v. Dimaya, 584 U.S. 148 (2018); Diaz Esparza v. Garland, 23 F.4th
563, 565-66 (5th Cir. 2022).
7
See Fed R. App. P. 4(b)(1), (4).
4
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supervised release after Ortiz-Rodriguez reentered the United States in May
2023 because the illegal reentry violated the terms of his supervised release.
The district court sentenced Ortiz-Rodriguez to fourteen months of
imprisonment. Ortiz-Rodriguez makes no separate arguments concerning
the revocation and sentence at issue in case No. 24-50224.
II
An alien violates 8 U.S.C. § 1326(a) by returning to the United States
without permission following removal. 8 Congress enacted 8 U.S.C.
§ 1326(d) in response to a Supreme Court decision that held, “ʻ[A]t a
minimum,’ ʻa collateral challenge to the use of a deportation proceeding as
an element of a criminal offense must be permitted where the deportation
proceeding effectively eliminates the right of the [noncitizen] to obtain
judicial review.’” 9 Accordingly, § 1326(d) permits a collateral attack on the
underlying removal order, which serves as an element of the § 1326(a)
offense. 10 The alien can challenge either a reinstatement order or the original
deportation order. 11 Under § 1326(d), “an alien may not challenge the
validity of the [underlying] deportation order” unless they show that three
elements are met: “(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
_____________________
8
United States v. Palomar-Santiago, 593 U.S. 321, 324 (2021); 8 U.S.C. § 1326(a).
9
See Palomar-Santiago, 593 U.S. at 324 (alterations in original) (quoting and
discussing United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987)).
10
Id. at 324-25; see 8 U.S.C. § 1326.
11
See United States v. Charleswell, 456 F.3d 347, 352 (3d Cir. 2006); see Ramirez-
Molina v. Ziglar, 436 F.3d 508, 514 & n.9 (5th Cir. 2006).
5
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the opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair.” 12
The district court denied Ortiz-Rodriguez’s motion to dismiss
because he “failed to show” that the 2017 expedited removal “denied him
judicial review” under (d)(2). “We review de novo a district court’s denial
of a motion to dismiss the indictment, including any underlying
constitutional claims,” and we accept factual findings unless they are
“clearly erroneous.” 13
Ortiz-Rodriguez has not satisfied (d)(2) or (d)(3), so his challenge
fails.
A
For Ortiz-Rodriguez to successfully challenge his 2017 expedited
removal, he must show that “the deportation proceedings at which the order
was issued improperly deprived [him] of the opportunity for judicial
review.” 14 Ortiz-Rodriguez has not made this showing because (1) he could
have appealed his expedited removal to this court, and (2) he has not shown
that any waiver of the right to appeal was unknowing or involuntary.
1
Ortiz-Rodriguez had the ability to seek judicial review of his 2017
expedited removal in this court but did not do so. According to the Notice of
Intent, Ortiz-Rodriguez was deemed deportable under 8 U.S.C.
§ 1227(a)(2)(A)(iii), which provides that “[a]ny alien who is convicted of an
_____________________
12
8 U.S.C. § 1326(d).
13
United States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir. 2015).
14
8 U.S.C. § 1326(d)(2).
6
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aggravated felony at any time after admission is deportable.” 15 Though 8
U.S.C. § 1252(a)(2) generally bars judicial review of “any final order of
removal against an alien who is removable by reason of having committed a
criminal offense covered in section . . . 1227(a)(2)(A)(iii),” it allows for
judicial review of “constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals.” 16 This
includes expedited removal orders. 17 Ortiz-Rodriguez’s right to judicial
review was explained in the Notice of Intent:
You have the right to remain in the United States for 14
calendar days so that you may file a petition for review of this
order to the appropriate U.S. Circuit Court of Appeals as
provided for in section 242 of the Act, 8 U.S.C. 1252. You may
waive your right to remain in the United States for this 14-day
period. If you do not file a petition for review within this 14-
day period, you will still be allowed to file a petition from
outside of the United States so long as that petition is filed with
the appropriate U.S. Circuit Court of Appeals within 30
calendar days of the date of your final order of removal.
Ortiz-Rodriguez’s signed form also includes a completed checkbox reading:
“I understand that I have the right to remain in the United States for 14
calendar days in order to apply for judicial review. I do not wish this
opportunity. I waive this right.” Because Ortiz-Rodriguez could have
appealed his expedited removal to this court, he has not shown that the
expedited removal proceedings deprived him of the opportunity for judicial
review.
_____________________
15
Id. § 1227(a)(2)(A)(iii).
16
Id. § 1252(a)(2).
17
See Valdiviez-Hernandez v. Holder, 739 F.3d 184, 186-88 (5th Cir. 2013) (per
curiam) (discussing jurisdictional requirements for review of an expedited removal order).
7
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2
Notwithstanding his right to file a petition for review, Ortiz-Rodriguez
argues that he still suffered a deprivation of judicial review because he made
an unknowing and involuntary waiver of his right to appeal. In United States
v. Mendoza-Lopez, 18 the Supreme Court explained that where “waivers of []
rights to appeal were not considered or intelligent, respondents were
deprived of judicial review of their deportation proceeding.” 19 Under our
precedents, Ortiz-Rodriguez has the burden of showing that his waiver was
deficient: “Where, as here, the government has produced a written and
signed stipulation to removal and waiver of rights, the burden rests with the
defendant to show that the stipulation and waiver was invalid.” 20
Ortiz-Rodriguez broadly argues that his “waiver was not considered
and intelligent” because it “falsely misled” him first by “telling him that his
Texas escape conviction was categorized as an aggravated felony” and
second by “not tell[ing] [him] that he could challenge that determination.”
The Notice of Intent stated that Ortiz-Rodriguez was deportable
“because [he] ha[d] been convicted of an aggravated felony as defined
in . . . 8 U.S.C. 1101(a)(43)(F),” and the form listed his evading-arrest
conviction as the qualifying crime. Ortiz-Rodriguez is correct that Texas
evading arrest is not currently an “aggravated felony,” at least under 8 U.S.C.
§ 1101(a)(43)(F) and 18 U.S.C. § 16(b). 21 However, at the time of Ortiz-
_____________________
18
481 U.S. 828 (1987).
19
Id. at 840.
20
United States v. Hernandez Velasquez, 120 F.4th 1294, 1297 (5th Cir. 2024).
21
See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony” as a “a crime of
violence” under 18 U.S.C. § 16); Sessions v. Dimaya, 584 U.S. 148, 161-62 (2018) (holding
that 18 U.S.C. § 16(b) is unconstitutionally vague); see also Diaz-Esparza v. Sessions, 697 F.
8
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Rodriguez’s October 2017 expedited removal proceedings (and his January
2018 deportation), his evading arrest conviction was considered to be an
aggravated felony under our decision in United States v. Sanchez-Ledezma. 22
Even though that decision was subsequently overturned, the “error on the
merits does not excuse the noncitizen’s failure to . . . [seek] judicial review[,]
[which,] if necessary, could fix that very error.” 23 The First Circuit has also
rejected a similar argument in a § 1326(d) proceeding. 24
Our opinion in United States v. Cordova-Soto, 25 while not directly on
point, 26 also broadly stands for the proposition that a statement of law which
_____________________
App’x 338, 339 (5th Cir. 2017) (per curiam) (stating, in September 2017, that the Texas
offense of evading arrest with a vehicle is a crime of violence under 18 U.S.C. § 16(b)), cert.
granted, vacated, and remanded, 584 U.S. 974 (2018) (remanding in May 2018 for further
consideration in light of Dimaya).
22
630 F.3d 447, 451 (5th Cir. 2011) (holding that “[e]vading arrest with a motor
vehicle” under Tex. Penal Code § 38.04(b) is a “crime of violence” under 18
U.S.C. § 16(b) and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)),
abrogated by, Dimaya, 584 U.S. 148; see also Diaz-Esparza, 697 F. App’x at 339-40 (declining
to find that Sanchez-Ledezma had been overruled or “undermined”).
23
United States v. Palomar-Santiago, 593 U.S. 321, 327-28 (2021) (“[Section]
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.”).
24
See United States v. Soto-Mateo, 799 F.3d 117, 123 (1st Cir. 2015) (“The appellant
argues, in effect, that the decision in [United States v.] Ozuna-Cabrera[, 663 F.3d 496 (1st
Cir. 2011),] means that his conviction for aggravated identity theft in 2009 was not a ‘theft’
offense; that he was therefore not an aggravated felon in 2009 under 8 U.S.C.
§ 1101(a)(43)(G); and, consequently, that DHS misled him. We do not agree. Since the
law governing the classification of aggravated identity theft was unsettled at the time of the
appellant’s removal, we cannot fairly conclude that the appellant was misled at all. A
waiver of rights based on a reasonable interpretation of existing law is not rendered faulty
by later jurisprudential developments.”).
25
804 F.3d 714 (5th Cir. 2015).
26
See id. at 722-23 (reviewing the challenge for plain error and resolving it on due
process grounds).
9
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later turns out to be erroneous does not render a waiver of rights unknowing
or involuntary. Like Ortiz-Rodriguez, Cordova-Soto argued that a change in
law made her earlier waiver of rights unknowing and involuntary. 27 We held
that Cordova-Soto was unable to show that she was deprived of the
opportunity for judicial review, despite the Supreme Court determining, a
few months after her removal proceedings, “that an offense such as [her]
drug conviction does not qualify as an aggravated felony.” 28
Ortiz-Rodriguez’s second point—that the form misled him into
believing he could not challenge the aggravated felony finding—is also
unavailing. Specifically, Ortiz-Rodriguez argues that the checkboxes on the
second page of the Notice of Intent misled him. Ortiz-Rodriguez notes that
the checkboxes provided opportunities for him to “contest his deportability”
on factual grounds—such as disputing his citizenship status or whether he
was convicted of the predicate offense—but that there is no box for him to
dispute the legal conclusion that his evading arrest conviction was an
aggravated felony. However, the form elsewhere noted his right to petition
to “the appropriate U.S. Circuit Court of Appeals,” and it did not state that
only factual challenges were permitted. 29 Ortiz-Rodriguez’s subjective belief
that he could not challenge the Notice of Intent’s legal conclusions does not
_____________________
27
Id. at 722.
28
Id. at 722-24.
29
See United States v. Cortez-Zepeda, No. 24-50418, 2025 WL 1904482, at *3 (5th
Cir. July 10, 2025) (“Cortez-Zepeda’s argument that [the Notice of Intent checkboxes] did
not allow his legal challenge ignores that the Notice informed him of a different avenue to
challenge the deportation: his right to seek judicial review, in the appropriate United States
Court of Appeals, ‘as provided for in section 242 of the Act, 8 U.S.C. 1252.’”).
10
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control. 30 In an analogous context, we have explained that “[t]he fact that
[an alien challenging the reinstatement of a removal order] erroneously
believed no avenue of federal judicial review was available is of no
consequence.” 31
Ortiz-Rodriguez asserts that he “signed [the Notice of Intent] in less
than a minute,” and the immigration agent “did not claim to have explained
the form.” However, a box that would apply if an interpreter had “explained
and/or served this Notice of Intent to the alien” in a language other than
English was unchecked, and instead, the Notice states “I explained and/or
served this Notice of Intent to the alien in the English language.” Ortiz-
Rodriguez is fluent in English.
Ortiz-Rodriguez relies on the Ninth Circuit’s opinion in United States
v. Valdivia-Flores 32 for support. Like Ortiz-Rodriguez, Valdivia-Flores was
charged with illegal reentry under 8 U.S.C. § 1326 and made a collateral
attack on his prior expedited removal, arguing that an earlier conviction “was
incorrectly determined to be an aggravated felony.” 33 Like Ortiz-Rodriguez,
Valdivia-Flores “assert[ed] that his [appeal] waiver was not considered and
intelligent,” 34 and the Ninth Circuit agreed:
_____________________
30
See id. (“Even if Cortez-Zepeda did not have actual knowledge that ‘section 242
of the Act, 8 U.S.C. 1252’ authorizes judicial review of questions of law, he was not
deprived of judicial review.”).
31
Ramirez-Molina v. Ziglar, 436 F.3d 508, 510, 515 (5th Cir. 2006).
32
876 F.3d 1201 (9th Cir. 2017), overruled on other grounds by, Alfred v. Garland, 64
F.4th 1025, 1048 (9th Cir. 2023) (en banc) (discussing errors in Valdivia-Flores’s mens rea
analysis).
33
Id. at 1204-05.
34
Id. at 1205.
11
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Here, although the Notice of Intent described the window in
which Valdivia-Flores could respond to the charges against him
or file a petition for judicial review, it did not explicitly inform
him that he could refute, through either an administrative or
judicial procedure, the legal conclusion underlying his
removability. In fact, the Notice of Intent’s three check boxes
suggested just the opposite—that removability could only be
contested on factual grounds. The list of options available to
“check off” did not include an option to contest the
classification of the conviction as an aggravated felony . . . .
. . . The government provides no evidence that an
immigration officer ever met with Valdivia-Flores to explain
the form or the issues it raised; rather, the government merely
relies on the sufficiency of the form’s text to communicate
Valdivia-Flores’s options.
Under these circumstances, we conclude that Valdivia-
Flores’s waiver of the right to seek judicial review was not
considered and intelligent. 35
But Valdivia-Flores is inconsistent with our precedents, and we
decline to follow it; the analysis in Valdivia-Flores is based on an evidentiary
burden that is reversed in this circuit. We place the burden on the
“defendant to show that [a] stipulation and waiver was invalid.” 36 By
contrast, Valdivia-Flores requires the Government to “show by clear and
convincing evidence that the waiver was valid” and criticizes the
Government for “provid[ing] no evidence that an immigration officer ever
met with Valdivia-Flores to explain the form or the issues it raised.” 37 The
decision in Valdivia-Flores also notes that the Government “may not simply
_____________________
35
Id. at 1205-06.
36
United States v. Hernandez Velasquez, 120 F.4th 1294, 1297 (5th Cir. 2024).
37
Valdivia-Flores, 876 F.3d at 1205-06.
12
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rely on the signed document purportedly agreeing to the waiver,” 38 a position
with which our circuit disagrees. 39 Ortiz-Rodriguez does not point us to
another circuit that follows the Ninth Circuit’s approach.
Ortiz-Rodriguez also relies on our opinion in Partible v. INS 40 and the
Third Circuit’s opinion in United States v. Charleswell. 41 The Partible
decision held that an alien’s waiver of the right to counsel in immigration
proceedings was unknowing because she lacked “any understanding . . . of
the complexity of her dilemma and . . . any awareness of the cogent legal
arguments which could have been made on her behalf.” 42 The “complexity
of her dilemma” arose from the complicated web of standards related to the
admissibility of nurses under the INA and state law. 43 Our court has since
noted that Partible involved “uniquely complex facts” where counsel would
have been helpful. 44 At the time of Ortiz-Rodriguez’s expedited removal,
there were no “complex facts” in his case; it was settled law in this circuit
that Ortiz-Rodriguez had committed an aggravated felony and was eligible for
expedited removal.
_____________________
38
Id. at 1205.
39
See United States v. Cordova-Soto, 804 F.3d 714, 721-22, 722 n.7 (5th Cir. 2015)
(“In contrast, the Ninth Circuit has held that an IJ could not have found that the alien’s
waiver was voluntary and knowing based only on the signed stipulated form of removal.”).
40
600 F.2d 1094 (5th Cir. 1979).
41
456 F.3d 347 (3d Cir. 2006).
42
Partible, 600 F.2d at 1096.
43
Id. at 1096-97.
44
Ramirez-Osorio v. INS, 745 F.2d 937, 945 n.10 (5th Cir. 1984); see also Ogbemudia
v. INS, 988 F.2d 595, 599 (5th Cir. 1993) (emphasizing “factual distinctions between the
situation of the immigrant in Partible and” the present case); Cobourne v. INS, 779 F.2d
1564, 1567 (11th Cir. 1986) (per curiam) (noting “the complexity of the case” in Partible).
13
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It is also important to recognize that Ortiz-Rodriguez did not face a
binary choice; he was not forced to check either a box saying he wished to
contest his removal or a box saying he did not wish to contest his removal. The
first page of the Notice of Intent, located above the checkboxes that
permitted Ortiz-Rodriguez to admit or contest removability, advised him that
he had other options and rights. The page stated he had the right to seek
counsel from a “list of available free legal services provided to [him].” It also
stated he had the right to respond to the charges within thirteen calendar days
and that his response could “request, for good cause, an extension of time;
rebut the charges . . . ; request an opportunity to review the government’s
evidence; admit deportability; designate the country to which” he would be
removed with certain reservations; “request withholding of removal” under
8 U.S.C. § 1231(b)(3) or deferral of removal; and request withholding or
deferral of removal under the Convention Against Torture. The page further
stated he could file a petition for review in a United States Court of Appeals.
The second page of the Notice was on the back. It contained a
certificate of service, where Ortiz-Rodriguez signed an acknowledgment that
he received the Notice of Intent. Beneath that certificate of service were the
aforementioned boxes, which permitted an immigrant to check whether
removal was contested. Ortiz-Rodriguez was not required to check either
box. But he did, and he signed the additional signature line beneath those
boxes. Just above that signature line, the Notice repeated that he had “the
right to remain in the United States for 14 calendar days in order to apply for
judicial review.” The next two sentences in that same paragraph said, “I do
not wish this opportunity. I waive this right.” After reviewing all the
information on the first page, and the information on the second page, Ortiz-
Rodriguez signed on this line.
Ortiz-Rodriguez had other options; to name one, he could have left
both boxes unchecked and filed a written response within thirteen days as the
14
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other side of the form expressly told him was an option. The only thing Ortiz-
Rodriguez had to do when served with the Notice was to sign and
acknowledge receipt—he was not required to contest or admit removability.
The Third Circuit’s opinion in Charleswell is more helpful to the
Government than to Ortiz-Rodriguez. There, Charleswell launched
collateral challenges to both a removal order and a reinstatement order. 45
The Third Circuit held that Charleswell was not deprived of an opportunity
for judicial review of the removal order despite a “substantive error of law”
by the immigration judge (IJ). 46 However, the Third Circuit held that
Charleswell was “denied the opportunity of judicial review of the
reinstatement order” because “reasonable persons reading [Charleswell’s
reinstatement notice] would be led to believe that their only avenue for relief
if they desire to contest the reinstatement order would be to make . . . [a]
statement to the immigration officer.” 47 The Third Circuit cited defects in
Charleswell’s reinstatement notice that are not present in this case:
“Nowhere on [Charleswell’s reinstatement notice] is there a statement
alerting the alien that he may seek judicial review, pursuant to § 1252(a)(5),
in the federal courts of appeals.” 48 The Third Circuit even suggested that a
“sensibly easy way to cure this glaring deficiency would be to amend the
regulations governing the reinstatement process to include, directly on the
Notice/Intent form, some notice that an alien may seek review of the
reinstatement determination in the appropriate court of appeals.” 49 The
_____________________
45
Charleswell, 456 F.3d at 349.
46
Id. at 353 & n.5 (“[T]he IJ, incredibly, believed that the United States Virgin
Islands were not a territory of the United States . . . .”).
47
Id. at 354-57.
48
Id. at 356.
49
Id. at 357.
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Notice of Intent that Ortiz-Rodriguez signed includes exactly that: a
statement that he has the right to “file a petition for review of this order to
the appropriate U.S. Circuit Court of Appeals.”
This court’s recent unpublished opinion in United States v. Cortez-
Zepeda 50 supports both our conclusion that Ortiz-Rodriguez was not deprived
of judicial review, as well as our decision to decline to follow Valdivia-Flores.
Cortez-Zepeda argued that
DHS improperly classified his sexual assault conviction as an
aggravated felony, and because the [Notice of Intent] form only
invited him to contest the charge for four enumerated factual
reasons, he did not know that he could contest the aggravated
felony classification and was therefore deprived of judicial
review as required by § 1326(d). 51
Our court rejected this argument. The opinion in Cortez-Zepeda stated that
“[w]hether DHS improperly classified Cortez-Zepeda’s sexual assault
conviction as an aggravated felony is immaterial to whether he was deprived
of judicial review,” and “[n]othing in the Notice or waiver implied that
Cortez-Zepeda could only challenge the factual—as opposed to legal—basis
for his removal.” 52 The Cortez-Zepeda decision noted that the Notice of
Intent “makes clear that ‘charge’ refers not to the factual ‘allegations,’ but
rather to the legal conclusion that Cortez-Zepeda was deportable because he
_____________________
50
United States v. Cortez-Zepeda, No. 24-50418, 2025 WL 1904482, at *3 (5th Cir.
July 10, 2025) (“Cortez-Zepeda’s argument that [the Notice of Intent checkboxes] did not
allow his legal challenge ignores that the Notice informed him of a different avenue to
challenge the deportation: his right to seek judicial review, in the appropriate United States
Court of Appeals, ‘as provided for in section 242 of the Act, 8 U.S.C. 1252.’”).
51
Id.
52
Id.
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committed an aggravated felony.” 53 Our court held that Cortez-Zepeda
“produced no evidence that the waiver was not knowing, voluntary, and
intelligent,” and “[h]is decision to waive judicial review d[id] not constitute
a deprivation of judicial review under § 1326(d).” 54 So too here.
B
Under § 1326(d)(3), the alien must show that “the entry of the order
was fundamentally unfair.” 55 “An entry is fundamentally unfair if (1) the
defendant did not receive procedural due process, and (2) the defendant
suffered prejudice.” 56 Before analyzing these requirements, we first respond
to Ortiz-Rodriguez’s argument that these showings are unnecessary.
Ortiz-Rodriguez argues that we
should follow the Ninth Circuit’s approach that, “[w]here a
prior removal order is premised on the commission of an
aggravated felony, a defendant who shows that the crime of
which he was previously convicted was not, in fact, an
aggravated felony, has established both that his due process
rights were violated and that he [has] suffered prejudice as a
result.” 57
_____________________
53
Id.
54
Id. at *4.
55
8 U.S.C. § 1326(d)(3).
56
United States v. Hernandez Velasquez, 120 F.4th 1294, 1297 (5th Cir. 2024).
57
See United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015); see also United
States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017) (“Because Valdivia-Flores’s
drug trafficking conviction does not qualify as an aggravated felony under the categorical
approach, it cannot support the asserted basis for Valdivia-Flores’s 2009 removal.
Valdivia-Flores was therefore prejudiced from his inability to seek judicial review for that
removal.”), overruled on other grounds by, Alfred v. Garland, 64 F.4th 1025, 1048 (9th Cir.
2023) (en banc).
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As explained earlier, Ortiz-Rodriguez’s evading arrest conviction is no longer
an aggravated felony, so the Ninth Circuit’s rule would allow him to satisfy
§ 1326(d)(3) without any further showing.
With great respect to our sister court, we decline to adopt the Ninth
Circuit’s approach. In United States v. Parrales-Guzman, 58 we rejected the
nearly identical argument “that § 1326(d)’s bar on collateral attacks does not
attach because [a prior] removal order was void ab initio as it rested on an
unconstitutionally vague statute, [18 U.S.C.] § 16(b).” 59 We explained that
such a rule would “upend[] Congress’s mandate that collateral review in the
course of re-entry prosecutions be available only in a narrow set of
circumstances.” 60 Similarly, in United States v. Ramirez-Cortinas, 61 we
reversed the dismissal of a § 1326 indictment, reiterating that actual
prejudice must be shown under § 1326(d)(3), even if the defendant can show
that a prior removal was based on an erroneously categorized felony. 62
The Supreme Court explicitly held in United States v. Palomar-
Santiago 63 that “§ 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.” 64 In that case, Palomar-Santiago had been
_____________________
58
922 F.3d 706 (5th Cir. 2019).
59
Id. at 707.
60
Id.
61
945 F.3d 286 (5th Cir. 2019).
62
Id. at 293 (“[E]ven assuming the IJ and BIA erred in classifying Ramirez’s bail
jumping conviction as an aggravated felony (something we do not decide), Ramirez still
could not show actual prejudice under § 1326(d). Consequently, the district court erred in
dismissing Ramirez’s indictment for illegal reentry.”).
63
593 U.S. 321 (2021).
64
Id. at 327.
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convicted of a state DUI felony, and he was removed from the United States
on the basis that this offense was an “aggravated felony.” 65 Several years
after the DUI conviction, the Supreme Court issued its decision in Leocal v.
Ashcroft, 66 which held that a DUI conviction was not a crime of violence or
an aggravated felony. 67 As the Supreme Court explained, “Palomar-
Santiago’s removal order thus never should have issued.” 68 Nevertheless,
the Supreme Court concluded that this turn of events did not excuse
Palomar-Santiago “from meeting § 1326(d)’s first two requirements.” 69
The Supreme Court reasoned,
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). 70
This reasoning makes particular sense with respect to § 1326(d)(3), as
“[f]undamental fairness is a question of procedure,” not substance. 71
We now turn to whether Ortiz-Rodriguez (1) received due process
and (2) was prejudiced by the order.
_____________________
65
Id. at 325.
66
543 U.S. 1 (2004).
67
See id. at 11; Palomar-Santiago, 593 U.S. at 325.
68
Palomar-Santiago, 593 U.S. at 325 (citing Rivers v. Roadway Express, Inc., 511 U.S.
298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of
what the statute meant before as well as after the decision of the case giving rise to that
construction.”)).
69
Id. at 326.
70
Id. at 327.
71
United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002).
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1
Ortiz-Rodriguez cannot show that he was deprived of procedural due
process. Ortiz-Rodriguez was removed via § 1228(b) expedited removal
proceedings, and we held in Benitez 72 that “the administrative deportation
procedures of § 1228 afforded [the defendant] the unimpeded opportunity to
claim all the procedural due process to which he was constitutionally
entitled. . . . Clearly the expedited statutory deportation scheme comports
with the minimum requirements of due process pronounced by the Supreme
Court . . . .” 73
Ortiz-Rodriguez attempts to differentiate Benitez, arguing that
(1) Benitez blessed the § 1228 procedures but did not “evaluate the
adequacy” of the Notice of Intent, and (2) in Benitez, there was no dispute
whether Benitez’s predicate felony was properly categorized as an
aggravated felony. The first point is not persuasive because “if INS
complied with the statutory mechanism when deporting [Ortiz-Rodriguez],
such deportation complies with the standards of due process.” 74 Further,
the process and forms described in Benitez are similar to, if not the same as,
what Ortiz-Rodriguez received. 75 The second point fails because
§ 1326(d)(3) assesses the deportation procedures, not the “substantive
validity” of the removal. 76
_____________________
72
United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999).
73
Id. at 657-58; see also United States v. Guzman-Ocampo, 236 F.3d 233, 239 (5th
Cir. 2000) (same).
74
Benitez, 186 F.3d at 658.
75
Id. at 654-55 (describing Benitez’s Notice of Intent and other process, including
the Final Administrative Removal Order).
76
See United States v. Palomar-Santiago, 593 U.S. 321, 327 (2021).
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Ortiz-Rodriguez also argues that the expedited removal procedures
were fundamentally unfair because “he was not told he could challenge the
aggravated felony finding” and his conviction for evading arrest “was
eventually determined not to be an aggravated felony.” The first argument
fails for the same reasons that we discussed above when responding to Ortiz-
Rodriguez’s arguments that his appeal waiver was unknowing and
involuntary. 77 Principally, the Notice of Intent notified Ortiz-Rodriguez of
his right to “file a petition for review of this order” in this court.
The second argument fails because DHS correctly applied the law at
the time of Ortiz-Rodriguez’s expedited removal, and later changes to
substantive law do not automatically render earlier immigration proceedings
fundamentally unfair or procedurally deficient. In Galvan-Escobar, 78 we
explained that a § 1326(d) defendant’s argument that a “substantive change
in the law . . . made his deportation proceedings fundamentally unfair in the
first place[] misapprehends the protections of § 1326(d) and Mendoza-Lopez”
because “[f]undamental fairness is unquestionably a ‘question of
procedure.’” 79 Galvan-Escobar is an unpublished case, but it is consistent
_____________________
77
See supra notes 18-54 and accompanying text.
78
Galvan-Escobar v. Gonzales, 151 F. App’x 327 (5th Cir. 2006) (per curiam).
79
Id. at 329 (quoting United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir.
2002)).
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with opinions from other circuits 80 as well as our reasoning in non-§ 1326(d)
cases. 81
Ortiz-Rodriguez counters that many of the cases cited above are
inapposite because they involve collateral challenges “to removal orders
based on the denial of discretionary relief . . . .” In support, Ortiz-Rodriguez
cites to Ninth Circuit case law that makes the same distinction. In a § 1326(d)
analysis, the Ninth Circuit applies retroactive changes in substantive law
when those changes implicate “grounds for removability” but not when they
_____________________
80
United States v. Torres, 383 F.3d 92, 104 & n.14 (3d Cir. 2004) (“Rather, Torres
contends that his removal proceeding was rendered fundamentally unfair by the IJ’s
erroneous conclusion—in accordance with the then-reigning interpretation of the law—
that Torres was not eligible for discretionary relief. Torres essentially argues that the IJ’s
error of law rose to the level of a due process violation. We disagree. . . . Indeed, the IJ’s
understanding of the law was not erroneous at the time. We are extremely reticent to treat
as fundamentally unfair an administrative official’s failure to predict that binding law will
change.”); United States v. Lopez-Collazo, 824 F.3d 453, 467 (4th Cir. 2016) (“Although an
error of law, without more, ‘will ordinarily not rise to the level of a due process violation,’
there might be circumstances under which some courts would conclude that a
misapplication of the law as it existed at the time—not as understood in light of subsequent
judicial decisions—led to a due process violation.” (citation omitted) (quoting Torres, 383
F.3d at 104)); cf. United States v. Soto-Mateo, 799 F.3d 117, 123 (1st Cir. 2015) (“Since the
law governing the classification of aggravated identity theft was unsettled at the time of the
appellant’s removal, we cannot fairly conclude that the appellant was misled at all. A
waiver of rights based on a reasonable interpretation of existing law is not rendered faulty
by later jurisprudential developments.”).
81
See Ovalles v. Holder, 577 F.3d 288, 299 (5th Cir. 2009) (per curiam) (“Ovalles
was afforded sufficient due process in his initial removal proceedings, and he was found
removable based on an offense that, at the time, rendered him ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a)(3). The fact that the law changed after Ovalles was
removed does not mean that he was denied due process when he was prevented from
reopening his proceedings years after his departure from this country, especially when he
concededly did not request reopening with the specified allowed time even as calculated
from the time the law changed.”).
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impact the availability of “discretionary relief.” 82 The Ninth Circuit reasons
that
[w]here a noncitizen is in fact removable, the denial of an
opportunity to apply for [discretionary relief] . . . does not
implicate the propriety of a removal in the same
fundamental . . . way as does an IJ’s legal determination that a
noncitizen is removable on the basis of precedent we now know
to have been erroneous. 83
We respectfully decline to adopt the Ninth Circuit’s approach.
Section 1326(d)(3) asks whether “the entry of the order was fundamentally
unfair,” 84 and regardless of the relief available, “[f]undamental fairness is a
question of procedure,” 85 which is not altered by later substantive changes in
the law. Further, the distinction between discretionary relief and removal is
unsound, at least in this context. An alien is both removable under 8 U.S.C.
§ 1227(a)(2)(A) and ineligible for discretionary relief under 8 U.S.C.
§ 1229b(b)(1)(C) based on the same legal conclusion: the alien has been
convicted of an aggravated felony or other qualifying crime. 86 The right to
appeal the determination of whether a conviction is an aggravated felony as a
substantive matter provides due process.
_____________________
82
United States v. Aguilera-Rios, 769 F.3d 626, 632-33 (9th Cir. 2014).
83
Id. at 633.
84
8 U.S.C. § 1326(d)(3).
85
United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002).
86
8 U.S.C. § 1227(a)(2)(A); id. § 1229b(b)(1)(C); see also Ovalles, 577 F.3d at 299
(“Ovalles was afforded sufficient due process in his initial removal proceedings, and he was
found removable based on an offense that, at the time, rendered him ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a)(3).”); Niz-Chavez v. Garland, 593 U.S.
155, 158 (2021) (describing 8 U.S.C. § 1229b(b)(1) as a “discretionary relief” provision).
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Ortiz-Rodriguez does not point us to another circuit that applies the
Ninth Circuit’s approach. Ortiz-Rodriguez’s reply brief cites to the Tenth
Circuit’s decision in Rivera-Nevarez, 87 but the Tenth Circuit “[a]ssum[ed],
without deciding, that Rivera-Nevarez can demonstrate that his removal
proceeding was fundamentally unfair.” 88 In sum, Ortiz-Rodriguez was not
deprived of due process.
2
Section 1326(d)(3) also requires a showing of prejudice, 89 which Ortiz-
Rodriguez fails to make. “A showing of prejudice means ‘there was a
reasonable likelihood that but for the errors complained of the defendant
would not have been deported.’” 90 Ortiz-Rodriguez argues that if DHS
agents had recognized that Ortiz-Rodriguez was not eligible for expedited
removal, he either would not have been deported or may have received
voluntary departure if referred for other proceedings. Ortiz-Rodriguez also
argues that if DHS agents properly advised him of his rights, he may have
ended up in “precisely the same position” as the alien in Diaz Esparza v.
Garland. 91 In Diaz Esparza, the BIA terminated removal proceedings
against an alien because, following Sessions v. Dimaya, 92 the alien’s evading
arrest conviction was no longer an aggravated felony and thus the alien “was
_____________________
87
United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005).
88
Id. at 1109.
89
United States v. Hernandez Velasquez, 120 F.4th 1294, 1297 (5th Cir. 2024).
90
United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999) (quoting
United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995)).
91
23 F.4th 563 (5th Cir. 2022).
92
584 U.S. 148 (2018).
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not removable as charged.” 93 For its part, the Government argues that the
application of law was correct at the time, and that Ortiz-Rodriguez would
have been removed in other proceedings anyway based on his criminal
record—which included the evading arrest conviction, a juvenile
adjudication for aggravated sexual assault, and an arrest for failure to register
as a sex offender.
Ortiz-Rodriguez cannot show prejudice because, at the time of his
expedited removal and deportation, he was legally deportable under then-
existing Fifth Circuit precedents. “[I]f the defendant was legally deportable
and, despite the INS’s errors, the proceeding ‘could not have yielded a
different result,’ the deportation is valid for purposes of section 1326.” 94 As
the Fourth Circuit has put it, “[P]rejudice under § 1326(d) must be ‘judged
at the time of the [agency’s removal] decision.’ . . . [T]his is so even if the
law is later changed.” 95 The focus on law at the time of the prior deportation
proceeding fits the text of § 1326(d)(3), which asks whether the “entry of the
order was fundamentally unfair.” 96 Here, DHS correctly applied the law at
_____________________
93
Diaz Esparza, 23 F.4th at 565-66.
94
United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) (quoting
Benitez-Villafuerte, 186 F.3d at 659); see also United States v. Lopez-Collazo, 824 F.3d 453,
467 (4th Cir. 2016) (“The administrative removal order was actually premised on the
faithful application of existing law. Under the law as it was understood at the time of Lopez-
Collazo’s removal, he cannot have suffered prejudice because he was understood to be
statutorily ineligible for relief from removal, and therefore there was no reasonable
probability that he would not have been deported.” (emphasis omitted)).
95
Lopez-Collazo, 824 F.3d at 466 (second alteration in original) (quoting United
States v. Villanueva-Diaz, 634 F.3d 844, 852 (5th Cir. 2011)); see also United States v. Baptist,
759 F.3d 690, 697-98 (7th Cir. 2014) (“Though the law has since changed and Baptist’s
possession offenses no longer constitute aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(B), the law in effect at the time of Baptist’s challenged removal is what
matters to our analysis.”).
96
8 U.S.C. § 1326(d)(3) (emphasis added).
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the time of Ortiz-Rodriguez’s expedited removal to determine that his
evading arrest conviction qualified as an aggravated felony. 97 Ortiz-
Rodriguez cannot show prejudice.
III
In a footnote, Ortiz-Rodriguez raises one additional issue: “To the
extent that the requirements of § 1326(d) are more stringent than those
required by Mendoza-Lopez, Ortiz-Rodriguez urges that the deportation here
violated . . . the requirements of due process set forth in Mendoza-Lopez.” 98
Assuming that this argument is not forfeited, 99 it fails. This court’s recent
opinion in United States v. Hernandez Velasquez 100 confirmed that Mendoza-
Lopez and § 1326(d) are coterminous: “Congress codified Mendoza-Lopez in
§ 1326(d). Only after the prerequisites of § 1326(d) are satisfied would a
defendant’s inability to collaterally attack a removal order rise to the level of
constitutional infirmity.” 101 Ortiz-Rodriguez fails to satisfy § 1326(d), so any
due process challenge under Mendoza-Lopez also fails.
* * *
For the forgoing reasons, the district court’s judgment is
AFFIRMED.
_____________________
97
See United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5th Cir. 2011), abrogated
by, Dimaya, 584 U.S. 148.
98
See United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
99
See Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir.
2003) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”
(quoting United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc))).
100
120 F.4th 1294 (5th Cir. 2024).
101
Id. at 1298 (citation omitted).
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APPENDIX
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Dana M. Douglas, Circuit Judge, concurring in part and dissenting in
part:
All three judges today agree that Ismael Adan Ortiz-Rodriguez fails to
satisfy the requirement of fundamental unfairness under 8 U.S.C.
§ 1326(d)(3) because he suffered no prejudice. This alone necessitates
affirmance. But the majority opinion nevertheless wades into a discussion of
§ 1326(d)(2) and § 1326(d)(3)’s due process requirement. I disagree with its
analysis in this respect and therefore dissent in part.
I
As one of three statutorily imposed limitations on collateral attack of
an underlying removal order, § 1326(d)(2) requires that Ortiz-Rodriguez
show that “the deportation proceedings at which the order was issued
improperly deprived [him] of the opportunity for judicial review.” 8 U.S.C.
§ 1326(d)(2). The “proceedings” at issue here amounted to an immigration
agent serving Ortiz-Rodriguez with a Notice of Intent to Issue a Final
Administrative Removal Order (“Notice of Intent”) and obtaining his
signature on that form, thus subjecting Ortiz-Rodriguez to expedited
removal. The basis for his expedited removal was a 2017 Texas conviction
for evading arrest or detention with a vehicle, Tex. Penal Code Ann.
§ 38.04(b)(2)(A), which qualified as an aggravated felony at that time. See 8
U.S.C. § 1228 (permitting expedited removal proceedings for an
undocumented immigrant convicted of an aggravated felony).
Although Ortiz-Rodriguez concedes that he could have sought judicial
review of his expedited removal, he purportedly waived his right to seek such
review. According to Ortiz-Rodriguez, however, such waiver was neither
considered nor intelligent, thereby depriving him of a meaningful
opportunity for judicial review. See United States v. Mendoza-Lopez, 481 U.S.
828, 840 (1987); see also United States v. Hernandez Velasquez, 120 F.4th
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1294, 1297 (5th Cir. 2024) (“[T]he burden rests with the defendant to show
that the stipulation and waiver was invalid.”).
Relevant here, a portion of Ortiz-Rodriguez’s Notice of Intent reads:
As shown, Ortiz-Rodriguez did not check the first or second checkbox
indicating that he wished to contest his removal. Nor did he check any of the
three checkboxes providing factual bases for contesting his removal: (1) that
he is a citizen or national of the United States; (2) that he is a lawful
permanent resident of the United States; or (3) that he was not convicted of
the criminal offense described in the form (i.e., the evading-arrest
conviction). Also left unchecked was the final box indicating whether he was
attaching any supporting documentation.
Ortiz-Rodriguez did, however, check a box on the form that stated: “I
Do Not Wish to Contest and/or to Request Withholding of Removal.” He
also checked a box admitting to the allegations and charge listed in the Notice
of Intent, admitting that he was deportable, and waiving his right to rebut and
contest the charges.
True enough, it seems Ortiz-Rodriguez agreed to waive his right to
contest removal. Yet Ortiz-Rodriguez contends that the Notice of Intent
effectively confined his ability to contest his removability to the three limited
grounds provided in the checkboxes, thereby leading him to believe he could
not challenge the determination that he had been convicted of an aggravated
felony. Those three checkboxes offer only factual grounds for contesting
removal, and a legal challenge to the aggravated-felony classification of his
evading-arrest conviction plainly does not fall within any of the enumerated
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options. Ortiz-Rodriguez therefore asserts that by presenting a finite set of
selections, the Notice of Intent delusively suggested that he could only
contest his removability on those factual grounds.
The majority disagrees with Ortiz-Rodriguez for two reasons. See ante
at 10–11. First, the majority highlights that the Notice of Intent elsewhere
reflected Ortiz-Rodriguez’s right to petition to the appropriate court of
appeals. Specifically, it points to a portion of the form informing Ortiz-
Rodriguez of his right to “file a petition for review of this order to the
appropriate U.S. Circuit Court of Appeals.” That portion of the form is not
inconsistent with Ortiz-Rodriguez’s understanding of the checkboxes: read
together, one could reasonably believe that he has a right to petition for
review, but only on the three factual grounds identified by the checkboxes.
See United States v. Cortez-Zepeda, No. 24-50418, 2025 WL 1904482, at *5
(5th Cir. July 10, 2025) (unpublished) (Dennis, J., dissenting) (“Logically,
the form’s delineated reasons for filing an appeal should explain how a
defendant . . . can pursue the appeal described on the first page of the
form.”).
Second, the majority notes that the form did not state that Ortiz-
Rodriguez could only raise factual challenges. But neither did it say that
Ortiz-Rodriguez could raise legal challenges. And the Notice of Intent’s
silence in this respect is hardly determinative of whether Ortiz-Rodriguez’s
waiver was considered and intelligent. If anything, the form’s lack of clarity
lends further support to Ortiz-Rodriguez’s argument.
Although omitted from the majority opinion’s reasoning, I wish to
touch upon one point raised by the Government during oral argument: that
the fourth checkbox indicating the attachment of supporting documentation
serves as a general “catch-all” option for contesting removability. Oral Arg.
18:33–19:00. By the Government’s telling, that checkbox offered Ortiz-
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Rodriguez an exhaustive basis upon which he could contest removal for any
reason not expressly listed in the three preceding checkboxes, including a
legal challenge to the aggravated felony classification. The plain language of
that checkbox does not support this interpretation. Although indented in line
with the three other checkboxes, the fourth checkbox is substantively
distinct. It does not provide an additional reason for contestation; instead, it
simply indicates that a contesting party should mark that box in addition to
any of the three superseding checkboxes when he wishes to attach supporting
documentation.
By way of example, a party contesting removal based on citizenship
would mark the box that reads, “I am a citizen or national of the United
States,” and, if they attach documentation like a birth or naturalization
certificate supporting that challenge, they may also mark the fourth checkbox
to indicate as much. This comports with the italicized text preceding the four
checkboxes that says, “Attach any supporting documentation.” And
regardless, it can hardly be said that “attaching documents” logically
suggests to a potential petitioner that he may raise a legal challenge. If
intended to be a true “catch-all” option as the Government suggests, there
are a myriad of ways to more clearly provide for such an option (e.g., “Other”
followed by a blank space to write in the basis for the challenge would surely
better achieve this purpose).
The majority opinion also makes much of the “other options” Ortiz-
Rodriguez had when presented with the Notice of Intent, including that he
could have left the waiver box unchecked. Ante at 14–15. That he did not do
so, the majority suggests, somehow validates his waiver. In so doing, the
majority opinion glosses over the very core of Ortiz-Rodriguez’s argument:
that the “choices” the form presented were misleading and, therefore, his
decision to check the waiver box was neither considered nor intelligent.
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Although Ortiz-Rodriguez was not “forced to check” the waiver box, that
alone says nothing about the validity of his waiver.
Additionally, Ortiz-Rodriguez is not alone in claiming confusion
stemming from the Notice of Intent’s limited checkboxes. Indeed, this court
grappled with the identical issue in a recently decided unpublished decision.
See Cortez-Zepeda, 2025 WL 1904482, at *3–4; see also id. at *4–5 (Dennis,
J., dissenting). And as the majority here acknowledges, ante at 11–12, the
Ninth Circuit addressed an equally misleading Notice of Intent in United
States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), overruled on other
grounds by Alfred v. Garland, 64 F.4th 1025, 1048 (9th Cir. 2023) (en banc).
One question before the Valdivia-Flores court was whether the Notice of
Intent established that Valdivia-Flores’s waiver of his right to pursue a
judicial appeal was considered and intelligent. Id. at 1206. The Ninth Circuit
held that it did not and, thus, the waiver did not comport with due process.
See id. In reaching its conclusion, the court highlighted that the Notice of
Intent “did not include an option to contest the classification of the
conviction as an aggravated felony, and the only check box relevant to the
conviction itself only allowed Valdivia-Flores to contest that he ‘was not
convicted of the criminal offense described.’” Id. at 1206. Indeed, the Ninth
Circuit recognized that the Notice of Intent confined Valdivia-Flores to same
three fact-based challenges to his removal provided in Ortiz-Rodriguez’s
Notice of Intent. Id. at 1204.
In distinguishing Valdivia-Flores, the majority opinion places great
weight on the differing evidentiary approaches among our circuits. Ante at
12–13. But even accounting for these differences, Valdivia-Flores addresses
the crux of the issue presented here today: a fundamentally misleading and
deficient form. Moreover, Ortiz-Rodriguez, like Valdivia-Flores, was not
represented by legal counsel when he read and signed the Notice of Intent.
And given the expedited nature of his removal proceedings, Ortiz-Rodriguez
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“never had the benefit of appearing before an immigration judge, who, [ ]
presume[ably], would have adequately conveyed both his appeal options and
the finality associated with waiving appeal.” Valdivia-Flores, 876 F.3d at
1206 (citation modified). Thus, against this backdrop, and coupled with the
form’s misleading language, I would hold that Ortiz-Rodriguez’s waiver of
the right to seek judicial review was not considered and intelligent.
II
The majority opinion also concludes that Ortiz-Rodriguez fails to
demonstrate that the entry of the removal order was fundamentally unfair
under § 1326(d)(3) because he (1) received procedural due process and
(2) suffered no prejudice. Ante at 17–26. I agree with the latter
determination, as Ortiz-Rodriguez cannot show that he would not have been
subject to deportation but for the alleged defect in his deportation
proceedings. United States v. Benitez-Villafuerte, 186 F.3d 651, 658–59 (5th
Cir. 1999). But I diverge with respect to the conclusion that Ortiz-Rodriguez
received procedural due process.
As an initial matter, the majority opinion rejects Ortiz-Rodriguez’s
argument that where a prior expedited removal order was premised on a
conviction that was later found not to be an aggravated felony, the defendant
has established both that his due process rights were violated and that he
suffered actual prejudice. Ante at 17–19. I agree that our court’s precedent
dictates that removal under these circumstances does not obviate a
defendant’s need to prove actual prejudice. See United States v. Ramirez-
Cortinas, 945 F.3d 286, 291–93 (5th Cir. 2019). 1 However, I would find that
_____________________
1
According to Ortiz-Rodriguez and the majority opinion, see ante at 17–18, this
court’s precedent stands in contrast to the approach adopted by the Ninth Circuit in United
States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015) (“Where a prior removal order is
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a due process violation necessarily occurs when, as here, the defendant was
removed via expedited proceedings predicated upon a conviction since
recognized not to qualify as an aggravated felony. See United States v.
Alvarez, 60 F.4th 554, 558 (9th Cir. 2023) (holding that a defendant “can
show that his due process rights were violated by defects in his deportation
proceeding if he shows that his underlying state conviction was not, in fact,
an aggravated felony.”).
With due respect to my colleagues, the cases cited in the majority
opinion do not support its contrary conclusion. See ante at 18–19. In United
States v. Parrales-Guzman, 922 F.3d 706 (5th Cir. 2019), we held that
§ 1326(d)’s bar on collateral attacks attached despite the defendant’s
removal order having rested on an unconstitutionally vague statute. Id. at
707–08. Ortiz-Rodriguez does not question that holding. Indeed, Ortiz-
Rodriguez does not argue that he need not satisfy § 1326(d)’s requirements
generally or § 1326(d)(3)’s requirements specifically. He merely asserts that
because the Department of Homeland Security classified his evading arrest
conviction as an aggravated felony, and that conviction was later held not to
qualify as such, he has sufficiently established both a violation of due process
and actual prejudice, thereby satisfying § 1326(d)(3)’s requirement of
fundamental unfairness. And in Parrales-Guzman, we expressly declined to
consider § 1326(d)(3), holding only that the defendant’s collateral attack
failed because he did not exhaust administrative remedies as required by
_____________________
premised on the commission of an aggravated felony, a defendant who shows that the crime
of which he was previously convicted was not, in fact, an aggravated felony, has established
both that his due process rights were violated and that he suffered prejudice as a result.”).
But more recent decisions from that court seemingly align with our requirement of an
independent showing of actual prejudice. See, e.g., United States v. Orozco-Orozco, 94 F.4th
1118, 1128 (9th Cir. 2024) (holding that a defendant whose removal was based on a
conviction that did not constitute an aggravated felony had established that the order of
removal was defective but “must [also] show that the defect prejudiced him”).
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§ 1326(d)(1). Id. at 707–08, 708 n.1. So, contrary to the majority’s reading
of that case, we had no occasion to consider the “identical argument” raised
by Ortiz-Rodriguez. Ante at 18.
Our decision in United States v. Ramirez-Cortinas, 945 F.3d 286,
likewise offers no insight into whether a due process violation has occurred.
We held in that case that a defendant whose prior removal was based on a
conviction no longer deemed an aggravated felony must demonstrate actual
prejudice under § 1326(d)(3). Id. at 292–93. In other words, “[i]f despite the
alleged errors, the proceeding could not have yielded a different result,” the
defendant’s collateral attack fails for lack of actual prejudice. Id. at 292
(citation modified). But nothing in Ramirez-Cortinas suggests that the same
is true for the due process requirement of § 1326(d)(3); because the
defendant failed to show actual prejudice, we did not reach the issue of
whether the defendant’s due process rights had been violated.
The majority opinion’s reliance upon United States v. Palomar-
Santiago, 593 U.S. 321, 327 (2021), is equally misplaced. There, the Court
unanimously rejected the approach adopted by the Ninth Circuit “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.” Id. at
326 (citation modified). The Court reasoned that such a rule allowing an
undocumented immigrant to circumvent the normal review process when
there was a substantive error in the removal order made little sense “if
further administrative review, and then judicial review if necessary, could fix
that very error.” Id. at 328. Highlighting the statute’s conjunctive language,
the Court held that § 1326(d) makes clear that its requirements are
“mandatory,” id. at 326 (quoting Ross v. Blake, 578 U.S. 632, 639 (2016));
thus, the procedural requirements of administrative exhaustion and
deprivation of judicial review “are not satisfied just because a noncitizen was
removed for an offense that did not in fact render him removable,” id. at 327.
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The majority opinion extends the Court’s reasoning in Palomar-
Santiago to § 1326(d)(3), noting that like § 1326(d)(1) and (2), the
fundamental fairness prong presents “‘a question of procedure,’ not
substance.” Ante at 19 (quoting United States v. Lopez-Ortiz, 313 F.3d 225,
230 (5th Cir. 2002)). Perhaps even more telling is the Court’s unequivocal
statement that “defendants must meet all three” prerequisites of § 1326(d).
Palomar-Santiago, 593 U.S. at 326. Again, Ortiz-Rodriguez does not dispute
this point. The question he presents is whether he has satisfied those
mandatory prerequisites for collateral attack of his removal order. The
Palomar-Santiago Court did not consider that question because “the narrow
question th[e] Court granted certiorari to decide” asked only whether the
defendant was “excused from” satisfying the first two statutory
requirements of § 1326(d). Id. at 323, 328 n.4.
What is evident from Palomar-Santiago is that the substantive error of
which Ortiz-Rodriguez complains—that his removal order was premised on
a conviction later found not to be a removable aggravated felony offense—
neither excuses nor satisfies the requirements of § 1326(d)(1) and (2). See id.
at 327 (“Indeed, the substantive validity of the removal order is quite distinct
from whether the noncitizen exhausted his administrative remedies . . . or
was deprived of the opportunity for judicial review . . . .”). The Court’s
reasoning similarly applies to the actual prejudice requirement of
§ 1326(d)(3): one who is otherwise deportable suffers no prejudice from
removal predicated on a conviction that no longer qualifies as an aggravated
felony, so that error in felony classification alone does not prove actual
prejudice. See Ramirez-Cortinas, 945 F.3d at 239.
The same, however, is not true of § 1326(d)(3)’s due process
requirement. When, as here, a defendant’s removal order was premised
upon a conviction later determined not to be an aggravated felony, that error
renders the order defective. See Alvarez, 60 F.4th at 558. Such defects in the
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underlying deportation proceeding, in turn, show that defendant’s due
process rights were violated. See id. (holding that due process violations
occur from defects in underlying deportation proceedings); United States v.
Guzman, 998 F.3d 562, 566–67 (4th Cir. 2021) (same); United States v.
Estrada, 876 F.3d 885, 887 (6th Cir. 2017) (same). This is so because absent
that aggravated felony classification, the defendant would not have been
subject to expedited removal proceedings. Instead, the defendant would
have had the opportunity to appear before an immigration judge and proffer
defenses and, if unsuccessful, to appeal to the Board of Immigration Appeals.
Palomar-Santiago, 593 U.S. at 324. But those processes are unavailable in
expedited removal proceedings. Therefore, by subjecting the defendant to
expedited removal based upon an error in felony classification, it cannot be
said that “the administrative deportation procedures . . . afforded [the
defendant] the unimpeded opportunity to claim all the procedural due
process to which he was constitutionally entitled.” Benitez-Villafuerte, 186
F.3d at 657. For these reasons, I would also hold that Ortiz-Rodriguez has
shown a violation of his due process rights.
38