United States v. Praxedis Portillo-Gonzalez

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.