Petition for Writ of Certiorari — Eliel Nunez Sanchez, Petitioner v. United States

Supreme Court briefFeb 23, 2026

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PETITION APPENDIX

TABLE OF CONTENTS

APPENDIX A — Nunez Court of Appeals Opinion (June 18, 2025) .............................................

Page

APPENDIX B — Nunez District Court Order

(Dec. 29, 2021) ................................................... 10a

APPENDIX C — Nunez District Court Judgment (Apr. 5, 2022) ........................................... 17a

APPENDIX D — Nunez Court of Appeals Order Denying Rehearing (Sept. 24, 2025) ........... 23a

APPENDIX E — Calderon Court of Appeals

Memorandum Disposition (Oct. 9, 2025) .......... 24a

APPENDIX F — Calderon District Court Order

(Oct. 12, 2021) ................................................... 26a

APPENDIX G — Calderon District Court Judgment (Mar. 2, 2022) ........................................... 30a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

Appeal from the United States District Court for the Central

District of California, R. Gary Klausner, District Judge,

Presiding, D.C. No. 2:20-cr-00083-RGK-1

140 F.4th 1157

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Eliel NUNEZ Sanchez, aka Eliel

Nunez, Defendant-Appellant.

Attorneys and Law Firms

Laura A. Alexander (argued), Assistant United States

Attorney, Environmental Crimes and Consumer Protection

Section; Maxwell K. Coll and Rajesh R. Srinivasan, Assistant

United States Attorneys; David R. Friedman, and Mack E.

Jenkins, Assistant United States Attorneys, Chiefs, Criminal

Division; E. Martin Estrada, United States Attorney; Office

of the United States Attorney; United States Department of

Justice, Los Angeles, California; for Plaintiff-Appellee.

No. 22-50072

Argued and Submitted January

13, 2025 Pasadena, California

Filed June 18, 2025

Synopsis

Background: Following denial of his motion to dismiss

indictment, defendant was convicted in the United States

District Court for the Central District of California, R. Gary

Klausner, J., of illegally reentering United States after having

previously been subject to order of removal. Defendant

appealed.

Holt O. Alden (argued) and James H. Locklin, Deputy

Federal Public Defenders; Cuauhtémoc Ortega, Federal

Public Defender; Office of the Federal Public Defender, Los

Angeles, California; for Defendant-Appellant.

Before: Ronald M. Gould, Mark J. Bennett, and Kenneth K.

Lee, Circuit Judges.

OPINION

Holdings: The Court of Appeals, Bennett, Circuit Judge, held

that:

immigration judge's (IJ) purported failure to inform defendant

of his appeal rights was insufficient to excuse his failure to

comply with mandatory exhaustion requirement for collateral

review of removal order;

defendant's waiver of appeal at removal hearing was

considered and intelligent;

defendant's waiver of his due process right to counsel during

removal proceeding was valid; and

defendant failed to show that IJ's purported categorical

foreclosure of voluntary departure relief for any noncitizens

with criminal records prejudiced him.

Affirmed.

Procedural Posture(s): Appellate Review; Pre-Trial Hearing

Motion.

BENNETT, Circuit Judge:

*1160 Defendant-Appellant Eliel Nunez Sanchez (Nunez) 1

collaterally attacks the validity of a removal order entered

against him in 2010. Pursuant to 8 U.S.C. § 1326(d), aliens

presenting collateral attacks on removal orders must satisfy

three requirements for such challenges to proceed: first, they

must have exhausted all administrative remedies available

to them; second, they must have been deprived of the

opportunity for judicial review; and finally, entry of the

removal order must have been “fundamentally unfair.” 8

U.S.C. § 1326(d).

The opening and reply briefs refer to Defendant as

“Nunez.”

Nunez satisfies none of § 1326(d)'s three mandatory

requirements. Nunez failed to exhaust his administrative

remedies, and his challenge falls outside the narrow

zone of procedural defects excusing a failure to exhaust

administrative remedies. See id. U.S.C. § 1326(d)(1). Nunez

also fails to demonstrate that he was deprived of the

opportunity for judicial review. Id. § 1326(d)(2). Finally,

Nunez fails to demonstrate that the entry of the removal

APPENDIX A

Pet. App. 1a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

order against him was fundamentally unfair. Id. § 1326(d)

(3). Because Nunez must satisfy each of § 1326(d)'s three

requirements, but he satisfies none, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

1. Factual background

Nunez, a citizen of Mexico born in 1986, illegally entered

the United States as a child (brought by his parents) in the

early 1990s. In 2006, Nunez was convicted of possession

of a controlled substance (methamphetamine) while armed

and was sentenced to nine months in jail. When arraigned

in that 2006 case, Nunez was informed that a conviction

would subject him to “the consequences of deportation,

exclusion from admission to the United States, or denial of

naturalization.”

In July 2010, Nunez was arrested for possession of a

controlled substance (methamphetamine) for sale. The U.S.

Department of Homeland Security (DHS) then initiated

removal proceedings against Nunez. Nunez was concurrently

provided with a notice of his right to a hearing before

an immigration judge (IJ). That notice stated, among other

things, that Nunez had the right to contact an attorney or legal

representative to represent him at that hearing and that he

could request a list of legal organizations that might provide

free or low-cost representation.

On August 2, 2010, Nunez received a notice to appear in El

Paso, Texas, for removal proceedings. That notice informed

him that he would be provided with a list of qualified

organizations and attorneys who might represent him at no

cost; that the immigration judge conducting the proceeding

would advise him of any relief from removal for which he was

eligible (including voluntary departure); and that he would be

given an opportunity to apply for such relief.

Nunez's removal proceeding took place before an IJ on

August 30, 2010. Nunez *1161 did not obtain counsel

before the removal proceeding. At the proceeding, Nunez

was one of fourteen noncitizens addressed collectively. A

Spanish-language interpreter contemporaneously translated

the proceedings.

Nunez, who grew up in the United States, is fluent

in English. When speaking with the IJ, Nunez

requested to proceed in English.

The group was informed of their right to counsel. The group

collectively confirmed that they had received a list of free

legal service providers in the area. The IJ also informed the

group of their right to appeal the IJ's eventual decision, as

well as the procedures for conducting such an appeal. The IJ

told the group that once a decision was made on their case,

he would ask them if they wanted to appeal; that if they said

“no,” his decision would be final; and that if they said “yes,”

the decision would not be final.

The IJ informed the group that if any of them did not have

a “clean police record,” he would exercise his discretion in

declining any requests for voluntary departure (relief that the

IJ described as allowing those removed “to avoid some of

the negative consequences of deportation”). The IJ then asked

the group if they wanted more time to prepare their case

or to seek representation, and to stand if so. Two members

of the group stood. Nunez did not. The IJ then gave those

two individuals one month to retain counsel and rescheduled

their proceedings accordingly. He then once more asked

the remaining noncitizens present if they wanted to seek

representation, and if so, to stand up. Again, Nunez did not

stand.

The IJ then individually spoke with each noncitizen present,

including Nunez. When the IJ spoke with Nunez, Nunez

confirmed he was a native and citizen of Mexico who had last

entered the United States illegally. 3 Nunez sought voluntary

departure, and the IJ denied that request based on Nunez's

2006 conviction for possession of a controlled substance

while armed. 4 The IJ informed Nunez that he was going

to order him deported to Mexico. The IJ asked Nunez if he

wanted to appeal that decision, and Nunez said no. The IJ then

ordered Nunez deported to Mexico (Removal Order). Nunez

was deported to Mexico on September 1, 2010. Nunez did

not appeal the Removal Order. Nunez also did not move to

reopen.

The transcript reads: “[IJ]: Did you last enter the

United States illegally, by sneaking in?” “[Nunez]:

Yes.”

The IJ asked Nunez what drug was involved, and

Nunez said it was “meth.”

Between 2010 and 2019, Nunez illegally reentered the United

States eight times and was deported seven times. 5 Each of

those removals was based on the Removal Order. In 2019,

APPENDIX A

Pet. App. 2a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

Nunez was again apprehended by immigration authorities in

the United States.

Nunez was convicted of felony possession of a

controlled substance for sale following the July

2010 arrest and was sentenced to 36 months'

probation and 12 days in jail. Nunez was also

convicted of two felonies in 2012 related to the

possession and distribution of dihydrocodeinone.

Nunez was originally sentenced to 180 days in

custody for those felonies but was resentenced to

three years' imprisonment following a probation

violation.

2. Procedural background

In February 2020, a grand jury in the Central District of

California charged Nunez with illegally reentering the United

States after having previously been subject to an order of

exclusion, deportation, or removal, in violation of 8 U.S.C. §§

(a), (b)(1), and (b)(2). Nunez moved to dismiss the indictment

on the ground that the Removal Order was invalid.

*1162 Nunez argued that he exhausted all “available”

administrative remedies because due process errors in his

2010 deportation proceeding rendered his waiver of the right

to appeal invalid and thus unavailable. He also argued that

the supposedly invalid appeal waiver deprived him of the

opportunity for judicial review. Nunez further argued that

entry of the Removal Order was fundamentally unfair because

his due process rights were violated at the 2010 removal

proceeding. Nunez claimed that if not for the alleged due

process violations, it was “at least ‘plausible that he could

have received voluntary departure.

The district court denied Nunez's motion to dismiss, finding

that Nunez had failed to exhaust his administrative remedies

because he had validly waived his right to appeal the Removal

Order, and thus his collateral attack on the Removal Order

was barred. Nunez subsequently entered a conditional plea

of guilty to violations of § 1326(a) and (b)(2), preserving

his right to appeal the district court's denial of his motion to

dismiss. The district court sentenced Nunez to 24 months in

custody followed by three years of supervised release, and

this timely appeal followed.

II. JURISDICTION

III. STANDARD OF REVIEW

We review de novo the district court's denial of a motion to

dismiss an indictment under 8 U.S.C. § 1326(d). See United

States v. Portillo-Gonzalez, 80 F.4th 910, 915 (9th Cir. 2023).

IV. DISCUSSION

Nunez was charged with crimes that are applicable only

to aliens who have been subject to “order[s] of exclusion,

deportation, or removal.” 8 U.S.C. § 1326(a)(1). We have

held, however, that “a successful collateral attack on a

removal order precludes reliance on a reinstatement of that

same order in criminal proceedings for illegal reentry.” United

States v. Arias-Ordonez, 597 F.3d 972, 982 (9th Cir. 2010),

abrogated on other grounds as recognized in United States v.

Portillo-Gonzalez, 80 F.4th 910, 918 (9th Cir. 2023). Thus, if

Nunez's collateral challenge has merit, we must reverse the

district court and grant his motion to dismiss the indictment.

But Nunez's challenge lacks merit, so we affirm.

Section 1326(d) provides that an alien may not collaterally

challenge the validity of a deportation order (like the Removal

Order here), unless:

(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) (emphasis added).

1. Nunez fails to satisfy the exhaustion prong of §

1326(d)(1)

Nunez did not appeal the Removal Order or move to reopen.

But Nunez argues that he did not fail to exhaust available

administrative remedies because his waiver of appeal was

invalid. As discussed below, we disagree and find the waiver

valid. But even if Nunez were correct, the specific alleged

defects identified by Nunez do not excuse any failure to

exhaust administrative remedies.

We have jurisdiction under 28 U.S.C. § 1291.

APPENDIX A

Pet. App. 3a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

Nunez claims that a limited set of procedural defects may

excuse a failure to exhaust administrative remedies. Nunez

relies on United States v. Valdivias-Soto, 112 F.4th 713 (9th

Cir. 2024), in which we *1163 identified a highly limited

set of circumstances in which a noncitizen's failure to exhaust

administrative remedies may be excused. Id. at 732–33. But

Nunez makes no allegations that fall within the exceedingly

narrow set of circumstances excusing a failure to exhaust

under Valdivias-Soto.

Until 2021, this court held that defendants charged under

§ 1326 who had been ordered removed due to a criminal

conviction were excused from proving the first two prongs

of § 1326(d) if they had been removed as the result of a

substantive legal error. See, e.g., United States v. Ochoa,

861 F.3d 1010, 1015 (9th Cir. 2017) (per curiam) (forgiving

a failure to exhaust if defendant “was not convicted of an

offense that made him removable”). But in United States

v. Palomar-Santiago, 593 U.S. 321, 141 S.Ct. 1615, 209

L.Ed.2d 703 (2021), the Supreme Court overruled this

approach, holding that courts may not excuse § 1326(d)

(1)'s exhaustion requirement and that “each of the statutory

requirements of § 1326(d) is mandatory.” Id. at 329, 141 S.Ct.

1615 (emphasis added). We have read Palomar-Santiago as

establishing that “[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.’ ” Portillo-Gonzalez, 80 F.4th at 918 (quoting

Palomar-Santiago, 593 U.S. at 328, 141 S.Ct. 1615).

Nunez tries to evade Palomar-Santiago by arguing that

he is not mounting a “substantive” challenge to the IJ's

decision. Instead, he claims he is advancing a “procedural”

challenge—that his waiver of appeal was invalid because

of procedural defects that violated his due process rights.

According to Nunez, the Supreme Court in Palomar-Santiago

“didn't consider to what extent any particular procedural

error might satisfy § 1326(d)(1).” Nunez further argues

that certain procedural defects may render the exhaustion

requirement inapplicable. The government counters that

Palomar-Santiago is far more expansive, and that “[i]t

is no longer enough to argue, as defendant does, that

a procedural error during removal proceedings excuses

him from demonstrating administrative exhaustion or the

deprivation of judicial review under §§ 1326(d)(1) and (2).”

Nunez is correct that under this court's caselaw, certain

procedural defects may render administrative remedies

unavailable such that a failure to exhaust them may be

excused. In the wake of Palomar-Santiago, we initially

understood that case as “not limit[ing] its holding to an IJ's

substantive errors” and as “expressly reject[ing] the argument

that § 1326(d)'s requirements apply differently to substantive

errors than to procedural ones.” Portillo-Gonzalez, 80 F.4th

at 919. But in Valdivias-Soto, we held that a limited set

of alleged procedural violations may render administrative

remedies unavailable for the purposes of § 1326(d)(1)'s

exhaustion requirement. 6 See 112 F.4th at 730–33.

The government states in its answering brief:

“The government maintains that Valdivias-Soto is

inconsistent with Palomar-Santiago and PortilloGonzalez and reserves its right to seek further

review of that decision or the application of it to

this case.” Valdivias-Soto, however, is binding on

this three-judge panel. See Miller v. Gammie, 335

F.3d 889, 899 (9th Cir. 2003) (en banc).

In Valdivias-Soto, we looked to the Supreme Court's decision

in Ross v. Blake, 578 U.S. 632, 136 S.Ct. 1850, 195

L.Ed.2d 117 (2016), which held that in a limited set of

circumstances, administrative remedies may be functionally

unavailable such that they need not be exhausted to satisfy

a statutory exhaustion requirement. Valdivias-Soto, 112 F.4th

at 730 (citing *1164 Ross, 578 U.S. at 643–44, 136 S.Ct.

1850). Ross established that administrative remedies may

not actually be available for the purposes of exhaustion

when (1) they are effectively a “dead end”; (2) the requisite

procedures are “so opaque” that they are “incapable of

use”; or (3) “administrators [have] thwart[ed claimants] from

taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” 578 U.S. at 643–44, 136

S.Ct. 1850. As the Ross Court observed, “these circumstances

will not often arise.” Id. at 643, 136 S.Ct. 1850. Valdivias-Soto

established that Ross's holding was specifically applicable to

certain failures to exhaust administrative remedies under §

1326(d)(1). 112 F.4th at 730.

In Valdivias-Soto, we found that an IJ's misrepresentation

regarding defendant's right to counsel (the result of a

translation error) fell within Ross's third category of

impermissible circumstances excusing a failure to exhaust.

Id. at 732–33. There, an “IJ's erroneous advice about

[defendant]'s right to counsel was ... not an ‘error on

the merits,’ but a misstatement of the type described

in Ross concerning the procedural rules for obtaining

administrative remedies.” Id. at 732. Given the IJ's affirmative

APPENDIX A

Pet. App. 4a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

misrepresentations, we held that defendant had not failed to

exhaust available administrative remedies under § 1326(d)

(1). 7 Id. at 732–33.

Valdivias-Soto also held that “an IJ's ‘error on the

merits’ does not, on its own, prevent a defendant

from entering a ‘considered and intelligent’ waiver

of their right to appeal.” 112 F.4th at 726–27. But

there, the petitioner suffered from a neurocognitive

disorder, could only speak Spanish, and could not

read or write in any language. Id. at 718–20.

Thus, because of the IJ's misrepresentations, the

petitioner was not even aware of his right to counsel

and therefore could not have validly waived that

right. Id. at 732.

But Valdivias-Soto does not stand for the claim that any

waiver of appeal that is not considered and intelligent excuses

a failure to exhaust, nor that any alleged procedural defect

may overcome § 1326(d)(1)'s bar on collateral attacks to

removal orders. Rather, it stands for the far more limited

proposition that “administrative remedies are not ‘available’

” for the purposes of § 1326(d)(1) only “if the IJ ‘misled’ the

defendant ‘as to the existence or rules of the ... process’ for

obtaining them.” 8 Id. at 732 (ellipsis in original) (quoting

Portillo-Gonzalez, 80 F.4th at 920).

As noted, Valdivias-Soto also looked to two

additional circumstances described in Ross:

instances where administrative remedies may not

actually be available for the purposes of exhaustion

because (1) they are effectively a “dead end,” or

(2) the requisite procedures are “so opaque” that

they are “incapable of use.” 112 F.4th at 730 (citing

Ross, 578 U.S. at 643–44, 136 S.Ct. 1850). Nunez

makes no argument here that appeal to the Board of

Immigration Appeals (BIA) would have effectively

been a dead end or that the BIA's appeal procedures

are so opaque that they are incapable of use.

This very limited exception does not help Nunez. Unlike

the aggrieved parties in both Ross and Valdivias-Soto, Nunez

makes no allegations that the IJ made any affirmative

misrepresentations about the rights available to him. Cf. id. at

732–33; Ross, 578 U.S. at 648, 136 S.Ct. 1850. Nor does the

record demonstrate that the IJ made any misrepresentations.

Rather, Nunez claims that he overcomes § 1326(d)(1) because

the record allegedly does not demonstrate that Nunez's right

to appeal was considered and intelligent and that his waiver

of appeal was thus invalid.

Nunez misunderstands Valdivias-Soto. The defendant in

Valdivias-Soto did not overcome § 1326(d)(1)'s exhaustion

bar solely because his waiver of appeal was not considered

and intelligent. He overcame it *1165 because the IJ

made an affirmative misrepresentation which, under Ross,

excused his failure to exhaust. Valdivias-Soto, 112 F.4th

at 732 (“[Defendant]'s case ... falls squarely within the

‘misrepresentation’ category described in Ross.”); see also

Portillo-Gonzalez, 80 F.4th at 920 (identifying Ross as

requiring “a misleading statement about appeal rights or

procedures” to excuse a failure to exhaust administrative

remedies). And for the same reason, defendant's waiver of

appeal was not considered and intelligent. Valdivias-Soto, 112

F.4th at 732. (“[T]he erroneous translations that resulted in

[defendant's] invalid waiver of his right to counsel also denied

him the assistance of counsel....”).

As discussed below, we disagree that Nunez's waiver

was not considered and intelligent. But that disagreement

is immaterial. Even if Nunez were correct, his claim

cannot overcome Palomar-Santiago because Nunez makes

no allegations within the exceedingly narrow set of

circumstances in which a failure to exhaust may be excused

pursuant to Valdivias-Soto.

Nunez claims that “[i]t matters not whether Nunez was

inadequately informed due to incorrect information or

insufficient information,” because “the end result is the

same,” and that because the IJ accepted an allegedly invalid

waiver of appeal, Nunez's appeal was “ ‘incapable of use

and thus unavailable’ for purposes of § 1326(d)(1).” (quoting

Valvidias-Soto, 112 F.4th at 732). But this distinction is

essential. Ross means what it says, highlighting three specific

circumstances—all extreme examples—in which a litigant's

failure to exhaust administrative remedies may be excused.

Valdivias-Soto goes no further, simply finding that when

a litigant is actively misled as to the rights available to

him, such procedural error may excuse a failure to exhaust

administrative remedies under § 1326(d)(1).

In Valdivias-Soto, we also expressly distinguished the facts

before us from those in Portillo-Gonzalez, noting that in the

latter case “the IJ had ‘informed [defendant] of his right

to appeal’ and ‘[t]here was no misrepresentation ... as to

the rules or procedural steps governing such appeals.’ ”

112 F.4th at 731 (alteration in original) (emphasis added)

APPENDIX A

Pet. App. 5a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

(quoting Portillo-Gonzalez, 80 F.4th at 920). Those facts are

the exact facts before us—the IJ informed Nunez and all those

present at his deportation proceeding of their right to appeal

and, unlike the IJ in Valdivias-Soto, made no affirmative

misrepresentations about that right. Thus, even if Nunez's

waiver were not “considered and intelligent,” that alone

would not excuse Nunez's failure to exhaust administrative

remedies pursuant to § 1326(d)(1).

2. Nunez was not deprived of the opportunity for

judicial review under § 1326(d)(2)

Nunez argues that because his waiver of appeal was

supposedly invalid, his deportation proceedings deprived him

of the opportunity for judicial review. For a waiver of a BIA

appeal to be valid, it must be considered and intelligent. See

id. at 733. However, Nunez's waiver was considered and

intelligent.

“The government bears the burden of proving valid waiver

in a collateral attack of the underlying removal proceedings,”

and must “prove by ‘clear and convincing evidence’ that the

alien received ‘adequate advisement of the consequences of

his waiver of appeal.’ ” United States v. De La Mora-Cobian,

18 F.4th 1141, 1148 (9th Cir. 2021) (quoting United States v.

Ramos, 623 F.3d 672, 680–81 (9th Cir. 2010)).

Nunez argues that his waiver of the right to appeal was

not “considered and intelligent” because, in his telling, his

notice *1166 to appear and the IJ did not fully explain the

nature of an appeal; because the IJ did not inform him of

the consequences of waiver; and because the IJ informed

the group of noncitizens at Nunez's deportation hearing of

their appellate rights en masse, when this court has held that

“[m]ass silent waiver creates a risk that individual detainees

will feel coerced by the silence of their fellows,” United

States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993) (per

curiam).

To Nunez's first point, the government did not preserve a

document allegedly given to Nunez at his removal proceeding

explaining his appeal rights and containing a list of free

legal service providers. But the record shows that the IJ

addressed the document in the hearing and went over it,

receiving affirmations from the group that they both received

and understood the document. 9 The record thus indicates that

Nunez both received and understood that document. And as

discussed below, the IJ twice described the nature of an appeal

by explaining that it would mean an individual “do[esn]'t

accept the decision.”

Nunez highlights the fact that his individual voice

cannot be made out in the audio recording of the

proceeding and that the transcript shows only the

translator as affirmatively responding to the IJ's

questions. The alleged inference is that Nunez (who

was raised in the United States and is fluent in

English) ignored or misunderstood the questions

posed to him throughout the hearing, asked no

questions, and that his supposed silence went

unaddressed by the IJ, all of which made his

alleged waiver of appeal invalid. This is simply

speculation. Moreover, when directly addressed by

the IJ regarding the prospect of appeal, Nunez

showed no confusion or lack of understanding.

Nunez also independently raised the possibility

of filing for alternative relief in the form of an

I-130 petition: “How about if my fiancé would

apply for me? I mean, I put in a[n] I-130 petition.”

This further demonstrates Nunez's engagement and

understanding during his deportation proceedings.

As to Nunez's second argument, that the IJ did not explain

the consequences of any failure to appeal, the record

demonstrates the opposite is true. The IJ informed those

noncitizens present:

After I tell you what decision I've made

in your case, I'm going to ask if you

want to appeal.... If you say “No,”

meaning you don't want to appeal, and

that you accept the decision? It will be

final on that day.... If you say “Yes,”

meaning you do want to appeal, and

that you don't accept the decision? It

will not be final on that day.

The IJ repeated this warning soon after. The consequences

of any failure to appeal were thus directly explained twice to

Nunez.

Nunez also argues that his waiver of appeal was not

considered or intelligent because his proceedings were

conducted in part en masse, and this court has noted that

“[m]ass silent waiver creates a risk that individual detainees

APPENDIX A

Pet. App. 6a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

will feel coerced by the silence of their fellows.” Id. at 754.

But this case is readily distinguishable from Lopez-Vasquez.

In Lopez-Vasquez, the IJ never addressed potential deportees

individually regarding their desire to waive their right to

appeal. Id. at 752–53. Here, however, the IJ specifically asked

Nunez, in an individual colloquy, if he wanted to appeal.

Nunez explicitly declined to do so. 10

The transcript reads: “[IJ]: Do you understand. I'm

going to deny your request for voluntary departure,

and instead order you deported to Mexico. Do you

want to appeal that decision?” “[Nunez]: No.”

In sum, the record shows that the IJ informed Nunez of

his right to appeal and the nature of an appeal, explained

the consequences of any failure to appeal, and provided

Nunez with an individual opportunity to appeal (which Nunez

declined). For these reasons, the government has *1167

shown by “clear and convincing evidence” that Nunez's

waiver of his right to appeal was considered and intelligent.

De La Mora-Cobian, 18 F.4th at 1148 (quoting Ramos, 623

F.3d at 681).

3. Entry of the Removal Order was not unfair under §

1326(d)(3)

The third prong of § 1326(d) asks whether entry of the

challenged deportation order was “fundamentally unfair.” 8

U.S.C. § 1326(d)(3). As Nunez has not satisfied either §

1326(d)(1) or (2), it would not matter here if he did satisfy §

1326(d)(3). But he does not.

As our sister circuits have correctly held, “[w]hen Congress

used the phrase ‘fundamentally unfair’ in § 1326(d)(3), it

meant that aliens must show that they have been denied

due process under the Fifth Amendment.” United States v.

Castillo-Martinez, 16 F.4th 906, 922 (1st Cir. 2021) (citing

United States v. Torres, 383 F.3d 92, 103 (3d Cir. 2004)

(collecting cases and noting that “[i]n measuring whether an

alien's removal proceeding was ‘fundamentally unfair,’ most

circuits ask whether the alien was denied due process”)). And

a due process violation alone does not mean that the entry of

a removal order was “fundamentally unfair”: “we must still

consider whether such error resulted in prejudice.” United

States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.

2011).

Nunez alleges three due process violations rendered

his removal proceedings fundamentally unfair: “[t]he

immigration judge accepted an invalid waiver of appeal from

Nunez”; “[t]he immigration judge did not obtain a valid

waiver of counsel from Nunez”; and “[t]he immigration judge

failed to properly advise Nunez about voluntary departure

and to properly consider such relief.” As discussed, Nunez's

waiver of appeal was valid. For the reasons below, his waiver

of counsel was also valid. And as to Nunez's third contention,

Nunez could not have been prejudiced by any alleged

failure to properly consider voluntary departure because it

is not plausible that Nunez would have received voluntary

departure.

a. Nunez's waiver of his right to counsel was valid

Nunez alleges that his due process right to counsel was

violated because he did not validly waive it. But the record

demonstrates that Nunez received several notices informing

him of his right to counsel, both before and during his removal

proceeding. The record also includes an immigration officer's

certification that Nunez was expressly advised concerning

his right to counsel when he was served with DHS's arrest

warrant. Nunez also signed the notice of rights explicitly

informing him that he “ha[d] the right to contact an attorney or

other legal representative to represent [him] at [his] hearing,

or to answer any questions regarding [his] legal rights in the

United States.”

This court has employed a three-part test to determine

whether IJs have afforded noncitizens undergoing deportation

proceedings the right to counsel: “[A]t a minimum [IJs]

must (1) inquire whether the petitioner wishes counsel, (2)

determine a reasonable period for obtaining counsel, and

(3) assess whether any waiver of counsel is knowing and

voluntary.” Ram v. Mukasey, 529 F.3d 1238, 1241–42 (9th

Cir. 2008) (cleaned up) (quoting Biwot v. Gonzales, 403 F.3d

1094, 1100 (9th Cir. 2005)).

At his removal proceeding, Nunez was given several

opportunities to indicate that he wished to obtain counsel. And

indeed, two members of Nunez's group did want extra time

to try to obtain counsel. After those individuals expressed

interest in obtaining counsel, the IJ rescheduled each of

their proceedings in front of the entire group of noncitizens

present, giving *1168 the two each a month in which

to seek representation. Further, after those two individuals'

proceedings were rescheduled, the IJ again asked the other

noncitizens present if they wished to seek counsel. Nunez,

having just witnessed two individuals say they wanted to

try to obtain counsel and receive time to do so, again did

APPENDIX A

Pet. App. 7a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

not express a desire to seek counsel. The record reflects

that the rest of the group then responded affirmatively that

they wished to waive their right to counsel. 11 The record

demonstrates that this waiver was knowing and voluntary.

Nunez reiterates that the audio recording does not

allow for an understanding of “how any particular

noncitizen answered.” But we find this argument

unavailing for the reasons explained supra note 9.

b. Nunez was not prejudiced by any

violation regarding voluntary departure

Nunez argues that the IJ failed to properly consider his

application for voluntary departure, resulting in a violation of

his due process rights. He also argues that he was prejudiced

by this alleged violation because it is plausible that an IJ

who properly considered his claim would have granted him

voluntary departure. Again, even if both contentions were

true, this would not excuse Nunez's failure to overcome §§

1326(d)(1) and (2). But neither is accurate.

you must have a clean police record, and clean immigration

record, and prove you deserve voluntary departure,” or

he would deny any such request “in the exercise of [his]

discretion.” Nunez argues that this demonstrates that the

IJ categorically foreclosed voluntary departure relief for

all noncitizens seeking voluntary departure with criminal

records.

But despite the IJ's blanket statement, the IJ conducted an

individual colloquy with Nunez, specifically asking about his

drug conviction. After being told by the government attorney

that Nunez had been convicted of possession of a controlled

substance while armed, and sentenced to 270 days in jail,

the IJ asked Nunez what the *1169 drug was, and Nunez

answered that “it was meth.” The IJ also, in response to

Nunez's specific request for voluntary departure, told him

that because of his conviction, voluntary departure would not

“do [Nunez] any good.” The IJ also asked Nunez whether

“anybody would persecute [him] or torture [him] in Mexico,”

to which Nunez responded “[n]o.” This demonstrates that the

IJ, as he was required to do, exercised discretion.

“The Due Process Clause of the Fifth Amendment requires

that an alien in immigration proceedings be ‘made aware that

he has a right to seek relief.’ ” United States v. MelendezCastro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam)

(quoting United States v. Arrieta, 224 F.3d 1076, 1079

(9th Cir. 2000)). As we have held, IJs may violate due

process if they “stat[e] that [an] alien is eligible for relief,

but immediately negat[e] that statement.” United States v.

Gonzalez-Flores, 804 F.3d 920, 927 (9th Cir. 2015).

And when the relevant form of relief is discretionary, as here,

the noncitizen must also demonstrate prejudice by “mak[ing]

a ‘plausible’ showing that the facts presented would cause

the Attorney General to exercise discretion in his favor.”

United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th

Cir. 1998), as amended on denial of reh'g (Mar. 11, 1999).

Plausibility requires more than a “showing of mere possibility

or conceivability, which we have plainly held is insufficient

to satisfy the prejudice prong of § 1326(d)(3).” United States

v. Valdez-Novoa, 780 F.3d 906, 915 (9th Cir. 2015).

Nunez does not dispute that he was informed of his right to

seek relief in the form of voluntary departure. Rather, Nunez

claims that his due process rights were violated because the

IJ categorically foreclosed voluntary departure relief for any

noncitizens with criminal records. But Nunez must not only

allege a violation: he must also demonstrate that he was

prejudiced by the alleged violation. “To prove prejudice, an

alien seeking a discretionary form of relief must make a

‘plausible showing’ that an IJ presented with all of the facts

would exercise discretion in the alien's favor.” Id. at 927

(citing United States v. Rojas-Pedroza, 716 F.3d 1253, 1263–

64 (9th Cir. 2013), abrogated on other grounds as recognized

in Portillo-Gonzalez, 80 F.4th at 918).

“The factors relevant to an IJ deciding whether to grant

voluntary departure are the alien's negative and positive

equities.” Id. at 917. Positive equities include a noncitizen's

length of residence in the United States, “close family ties to

the United States, and humanitarian needs.” Rojas-Pedroza,

716 F.3d at 1265. Factors counseling against relief include

“the nature and underlying circumstances of the deportation

ground at issue; additional violations of the immigration laws;

[and] the existence, seriousness, and recency of any criminal

record.” Id. (quoting In re Arguelles-Campos, 22 I. & N. Dec.

811, 817 (BIA 1999)). The plausibility inquiry also looks to

whether “aliens with similar circumstances received relief.”

Id. at 1263.

During Nunez's removal proceeding, the IJ concluded his

explanation of voluntary departure by noting that “in all cases,

Nunez highlights various positive equities supporting

voluntary departure, such as his entering the United States

APPENDIX A

Pet. App. 8a

United States v. Nunez, 140 F.4th 1157 (2025)

2025 Daily Journal D.A.R. 5185

as a child; his engagement to a U.S. citizen, and his having

a U.S. citizen daughter. But at the time of his removal

proceedings, Nunez's criminal history included both a recent

conviction for possession of methamphetamine while armed

and an outstanding charge for possession of a controlled

substance. And Nunez fails to cite a single case in which

similarly situated noncitizens received relief in the form of

voluntary departure. Further, as we have held, “the existence

of a single case that is arguably on point means only that it

is ‘possible’ or ‘conceivable’ that a similarly situated alien

would be afforded voluntary departure.” Valdez-Novoa, 780

F.3d at 920. Nunez does not even meet that bar. The facts

of Nunez's criminal history thus make it implausible that

Nunez would have received relief. Because Nunez cannot

demonstrate prejudice, entry of the Removal Order against

him was not fundamentally unfair.

U.S. at 329, 141 S.Ct. 1615. And Nunez satisfies none of

them: he did not exhaust his administrative remedies pursuant

to § 1326(d)(1); he was not deprived of the opportunity for

judicial review under § 1326(d)(2); and entry of the Removal

Order was not fundamentally unfair under § 1326(d)(3).

Accordingly, Nunez's collateral attack on the Removal Order

cannot proceed.

V. CONCLUSION

For the reasons above, Nunez satisfies none of § 1326(d)'s

three mandatory requirements. We therefore affirm the district

*1170 court's denial of Nunez's motion to dismiss his

indictment.

AFFIRMED.

***

Each element of § 1326(d)'s bar on collateral attacks to

removal orders is mandatory. See Palomar-Santiago, 593

End of Document

All Citations

140 F.4th 1157, 2025 Daily Journal D.A.R. 5185

APPENDIX A

Pet. App. 9a

Case 2:20-cr-00083-RGK

Document 51

Filed 12/29/21

Page 1 of 7 Page ID #:1111

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

Case No.

2:20-cr-00083-RGK-1

Present: The Honorable

Interpreter

December 29, 2021

R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

N/A

Sharon L. Williams

Not Reported

Maxwell Coll and Laura Alexander

Not Present

Deputy Clerk

Court Reporter/Recorder

Assistant U.S. Attorney

U.S.A. v. Defendant(s):

Present Cust. Bond

Eliel Nunez Sanchez

Proceedings:

Date

Attorneys for Defendants:

Michael Parente, DFPD

Present App. Ret.

Order re: Defendant’s Motions to Dismiss the Indictment Under 8 U.S.C. § 1326(d) and

Equal Protection [31], [35]

INTRODUCTION

On February 14, 2020, the United States of America (the “Government”) filed an indictment that

charges Defendant Eliel Nunez Sanchez (“Defendant”) with being an illegal alien found in the United States

following deportation, in violation of 8 U.S.C. §§ 1326(a), (b)(1), and (b)(2). Currently before the Court are: (1)

Defendant’s Motion to Dismiss the Indictment under 8 U.S.C. § 1326(d) (“1326 Motion”); and (2) his Motion

to Dismiss the Indictment under the Equal Protection clause (“Equal Protection Motion”). (ECF Nos. 31 and

35.) For the following reasons, the Court DENIES both motions.

II.

FACTUAL BACKGROUND

Defendant’s parents entered the United States illegally in 1992 with their children, including Defendant.

(Def.’s 1326 Mot., Ex. 7 ¶ 1, ECF No. 31-6.) Until 2010, Defendant resided in the United States, completing

high school and then working as an electrician. He has a fiancee and two daughters. (See id., Ex. 8, ECF No.

31-7; Ex. 10 ¶ 2, ECF No. 31-9; Ex. 7 ¶¶ 4–5.)

In 2006, Defendant was convicted of being in possession of methamphetamine, a controlled substance,

while carrying a firearm. He was sentenced to 270 days imprisonment in county jail. (Id. Ex. 3, ECF No. 31-2.)

He was then arrested in 2010 for possessing a controlled substance, after which Immigration and Customs

Enforcement (“ICE”) took him into custody and served him with a notice to appear in immigration proceedings.

(Id., Ex. 6, ECF No. 31-5.) Defendant appeared before the immigration judge (“IJ”) on his own behalf on

August 30, 2010, for initial master calendar proceedings. Defendant was part of a group of 14 respondents

appearing that day. (See Id., Ex. 1, at 1, ECF No. 31-1.)

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Pet. App. 10a

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At the proceedings, the IJ explained to the group that they had the right to an attorney, but at no cost to

the government. He then stated that all respondents should have received a list of free legal service providers,

and asked anyone who had not received the list to stand. Defendant did not stand. (See id. at 2.) The IJ later

asked the group if anyone wanted more time to obtain an attorney, and two respondents answered that they did.

Defendant did not. (Id. at 13.) A few minutes later, the IJ once again asked the group if anyone wanted more

time to find an attorney, and if not, asked them to verbally confirm whether they were waiving their right to

representation. The remaining respondents answered, “[y]es.” (Id. at 14.)

The IJ explained two additional rights to the group. First, he explained that if anyone disagreed with his

decision at the proceedings, they had the right to appeal to the Board of Immigration Appeals (“BIA”). He

directed the respondents to a document that explained their appellate rights, and informed them that if they did

not appeal, “[the decision] will be final on that day. If you say ‘Yes,’ meaning you do want to appeal, and that

you don’t accept the decision? It will not be final on that day.” (Id. at 4.) The IJ then asked the group to confirm

that they understood, and they answered, “[y]es.” (Id.) The IJ then went on to explain the various forms of relief

available to respondents if they were found deportable, one of which was voluntary departure. He explained that

voluntary departure would still require a deportable respondent to leave the country, but would “allow [them] to

avoid some of the negative consequences of deportation.” (Id. at 11.) While listing the requirements for

voluntary departure, he informed the respondents that he would exercise his discretion to deny relief unless the

respondent had a “clean police record [] and a clean immigration record.” (Id.)

The respondents then appeared individually before the IJ. The IJ found Defendant deportable based on

his illegal entry with his family in the 1990s. The IJ asked Defendant questions about his family, and then asked

if he wanted to seek relief from deportation. Defendant asked for voluntary departure. After confirming that

Defendant had a prior drug conviction, the IJ stated that he was “[n]ot going to give you voluntary departure,

sir, because you can’t immigrate because of your drug conviction.” (Id. at 36.) The IJ then asked if Defendant

wanted to appeal the decision, and Defendant answered, “[n]o.” (Id.).

Defendant was deported to Mexico on September 1, 2010. Since then, Defendant has reentered the

United States eight times and been deported seven times. (See Alexander Decl., Exs. 6-12, ECF Nos. 42-7–4213.) After his most recent entry, Defendant was charged with illegal reentry.

III.

DISCUSSION

Defendant makes two arguments in his motions to dismiss the indictment. First, he argues that his 2010

deportation was not valid because of various due process violations, and therefore the government cannot meet

an essential element for a conviction under 8 U.S.C. § 1326. Second, he argues that Section 1326 is racially

discriminatory, which he argues is also grounds for dismissing the indictment. The Court addresses each

argument in turn.

Validity of Defendant’s 2010 Deportation

Defendant argues that his removal proceedings were: (1) fundamentally unfair due to several due

process violations; (2) that these violations rendered his deportation invalid; (3) and, though he did not appeal

his deportation to the BIA, he is excused from his failure to do so because the fundamental unfairness of his

hearing deprived him of the ability to appeal. The Government’s primary counter is that Defendant is not, in

fact, excused from his failure to exhaust his administrative remedies. The Court agrees with the Government.

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Pet. App. 11a

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Defendant Failed to Exhaust his Administrative Remedies

To obtain a conviction under 8 U.S.C. § 1326, the Government must establish that “the alien left the

United States under order of exclusion, deportation, or removal, and then illegally reentered.” United States v.

Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015). A defendant, however, may collaterally attack the removal

order that underlies a Section 1326 indictment by asserting that the removal proceedings violated his Fifth

Amendment due process rights. United States v. Melendez-Castro, 671 F.3d 950, 953 (9th Cir. 2012). If the

removal proceedings indeed violated the defendant’s due process rights, the proceedings were invalid and “the

Government may not rely on any resulting deportation order as proof of an element of a criminal offense.”

United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994).

A defendant collaterally attacking his removal proceedings must establish that: (1) he exhausted all

administrative remedies; (2) the deportation proceedings improperly denied him judicial review; and (3) the

entry of the removal order was fundamentally unfair. See 8 U.S.C. § 1326(d)(1)-(3). Defendant argues that his

removal proceedings were fundamentally unfair, violating his due process rights, for four reasons: (1) the IJ did

not give him a genuine opportunity to apply for voluntary departure; (2) the IJ did not obtain a valid waiver of

his right to appeal; (3) the IJ did not obtain a valid waiver of his right to counsel; and (4) he was not provided

with the required list of free legal service providers prior to the proceedings.

Whether or not these alleged defects satisfy the “fundamentally unfair” element of Section 1326(d),

Defendant does not—and cannot—argue that he satisfies the first element: exhaustion of administrative

remedies. After all, the removal proceeding transcript demonstrates that he unequivocally answered “[n]o”

when asked if he wanted to appeal the IJ’s decision. (Def.’s 1326 Mot., Ex. 1, at 36.) Instead, Defendant argues

he is automatically excused from exhaustion, citing the Ninth Circuit’s “exhaustion excusal” precedent. This

precedent holds that if removal proceedings are so fundamentally unfair that they deprive an alien “of his right

to appeal, he satisfies both (d)(1) and (d)(2),” the first two elements of Section 1326(d). United States v.

Gonzalez-Villalobos, 724 F.3d 1125, 1130 (9th Cir. 2013). In other words, the Ninth Circuit found certain

scenarios in removal proceedings so fundamentally unfair that a defendant subjected to them is “excused from”

exhausting his remedies. United States v. Palomar-Santiago, 141 S. Ct 1615, 1619 (2021).

Under this precedent, Defendant’s argument would be cognizable. However, the Supreme Court recently

addressed the Ninth Circuit’s exhaustion excusal rule. In a unanimous opinion, the Supreme Court held that

“[t]he Ninth Circuit’s interpretation is incompatible with the text” of the statute, and that “[w]hen Congress uses

‘mandatory language’ in an administrative exhaustion provision, a court may not excuse a failure to exhaust.”

Id. at 1620-21 (internal quotes omitted). Defendant argues that Palomar-Santiago dealt with exhaustion excusal

in a different scenario, and that its holding should be contained to its facts.1 The Ninth Circuit seems to

disagree. Although the Ninth Circuit has yet to explicitly overrule its excusal precedent in toto, it has

acknowledged that the Supreme Court “casts doubt on the continued vitality of our . . . rule.” Zamorano v.

Garland, 2 F.4th 1213, 1225 (9th Cir. 2021); see also Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021)

(Bennett, J., concurring) (“[Our excusal exceptions] appear[] to conflict with the Supreme Court’s Palomar1

The defendant in Palomar-Santiago argued that he was removed for a crime that was later found to not be a removable

offense. He argued that he should be excused from exhausting his remedies due to the complexity of whether his crime was one that

made him removable. See Palomar-Santiago, 141 S. Ct. at 1618, 1621.

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Pet. App. 12a

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Santiago decision . . . In my view, none of these rules survive Palomar-Santiago.”). As a consequence, the

Ninth Circuit has begun applying the exhaustion requirement far more rigorously than before. See United States

v. Sanchez, 853 Fed. App’x 201, 202 (9th Cir. 2021) (holding that a defendant was not excused from exhausting

his remedies even though the IJ “refus[ed] to consider evidence favoring voluntary departure”). Accordingly,

given that the Supreme Court appears to have overruled the rule on which Defendant relies, Defendant’s failure

to exhaust his remedies is reason alone to deny his motion.

Defendant is not Entitled to Excusal of his Failure to Exhaust Remedies

It is possible, however, that some scenarios may still excuse a defendant from establishing exhaustion of

administrative remedies. For instance, the potential excusal scenarios left unaddressed by Palomar-Santiago

include: (1) where the IJ failed “to inform the alien that he had a right to appeal his deportation order”; (2)

where the IJ failed “to inform the alien that he is eligible for a certain type of relief,” such as voluntary

departure; and (3) where an alien’s waiver of the right to appeal was not “considered and intelligent.” GonzalezVillalobos, 724 F.3d at 1130-31. Even if these scenarios survive Palomar-Santiago, none of them apply to

Defendant’s case, and he is not entitled to excusal from exhausting his remedies.

As to the first scenario, the IJ did not “fail[] to inform [Defendant] that he had a right to appeal his

deportation order to the [Board of Immigration Appeals].” Gonzalez-Villalobos, 724 F.3d at 1130. Defendant

was informed of his right to appeal as part of a group colloquy, given a sheet of paper that detailed the appeal

rights, and then asked individually if he wanted to appeal. (See Def.’s 1326 Mot., Ex. 1, at 4, 36.); see United

States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999), overruled on other grounds by United States v.

Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (finding that an IJ properly informed a defendant of his appellate

rights where the IJ gave a group explanation, then asked the defendant individually if he wanted to appeal).

As to the second scenario, the IJ did not “fail to inform” Defendant that he was eligible for voluntary

departure. Gonzalez-Villalobos, 724 F.3d at 1130. Even if, as Defendant argues, the IJ did not properly analyze

Defendant’s voluntary departure application, that analysis does not mean he failed to inform Defendant about

his eligibility for relief. First, the IJ did not inform the respondents that criminal convictions made them

statutorily ineligible for voluntary departure; rather, he stated that he would “exercise [his] discretion” to refuse

the relief to someone with a conviction. (See Def.’s 1326 Mot., Ex. 1, at 11.) It appears that Defendant

understood he was eligible despite the IJ’s admonishment, because he applied for voluntary departure in his

individual colloquy. (See Def.’s 1326 Mot., Ex. 1, at 36.) His application led to the IJ’s perfunctory denial.

Where a defendant is “aware of his right to seek voluntary departure, applie[s] for it, and could have appealed

the denial of that relief,” an IJ’s failure to fully analyze the equities “is not an error that, by its nature, affect[s]

[a defendant’s] awareness of or ability to seek judicial review.” Sanchez, 853 Fed. App’x at 202 (9th Cir. 2021).

Indeed, the IJ’s error cannot excuse a failure to exhaust because “further administrative review, and then

judicial review if necessary, could fix that very error.” Id. (quoting Palomar-Santiago, 141 S. Ct. at 1621).

As to the third scenario, Defendant’s waiver of his appeal rights was “considered and intelligent.”

Defendant speaks English, asked for his removal proceeding to be conducted in English, never expressed

misunderstanding of his appellate rights, and affirmatively stated that he did not want to appeal. (See Def.’s

1326 Mot., Ex. 1, at 33-36.)

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Pet. App. 13a

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Accordingly, whether or not Palomar-Santiago entirely overruled the Ninth Circuit’s precedent

excusing defendants from exhausting their administrative remedies in certain “fundamentally unfair” scenarios,

the record does not warrant excusal here. Therefore, because Defendant failed to exhaust his administrative

remedies, the Court DENIES Defendant’s 1326 Motion.

Equal Protection

Defendant also argues that the indictment should be dismissed because Section 1326 is racially

discriminatory and therefore violates the Fifth Amendment’s equal protection guarantee.

A law that discriminates based on race is subject to strict scrutiny. Ball v. Massanari, 254 F.3d 817, 823

(9th Cir. 2001). If a law is facially neutral, as here, then it is subject to strict scrutiny only if there is evidence of

disparate impact and discriminatory purpose. Valeria v. Davis, 307 F.3d 1036, 1042 (9th Cir. 2002). Defendant,

who is a citizen of Mexico, argues that Congress passed Section 1326 with a discriminatory purpose and that

the law has disproportionately impacted Latinos.

The Government argues that Section 1326 is not presumptively unconstitutional and is instead subject to

rational basis review. Courts “review equal protection challenges to federal immigration laws under the rational

basis standard and uphold them if they are ‘rationally related to a legitimate government purpose.’” HernandezMancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011) (quoting Masnauskas v. Gonzalez, 432 F.3d 1067,

1071 (9th Cir. 2005)). The Court agrees that “[f]ederal legislation that classifies on the basis of alienage,

enacted pursuant to Congress’ immigration or foreign policy powers,” is subject to rational basis review. See

United States v. Lopez-Flores, 63 F.3d 1468, 1475 (9th Cir. 1995). However, this holding does not preclude a

strict scrutiny analysis if Defendant can show that Section 1326 is racially discriminatory.

The Court ultimately finds that Defendant fails to demonstrate both discriminatory purpose and

disparate impact.

Discriminatory Purpose

Congress criminalized unlawful reentry for the first time in 1929 through the Undesirable Aliens Act

(“UAA”). Congress then enacted the Immigration and Nationality Act of 1952 (“INA”), which codified the law

criminalizing unlawful reentry under 8 U.S.C. § 1326. Congress subsequently amended Section 1326 in 1988,

1990, 1994, and 1996. See Pub. L. No. 104-132, §§ 401(c), 438(b), 441(a), 110 Stat. 1267, 1276, 1279 (1996);

Pub. L. No. 104-208, 110 Stat. 3009 (1996); Pub. L. No. 103-322, § 130001(b), 108 Stat. 2023 (1994); Pub. L.

No. 101-649, § 543(b)(3), 104 Stat. 5059 (1990); Pub. L. No. 100-690, § 7345(a), 102 Stat. 4471 (1988).

Defendant offers evidence of racial animus surrounding the enactment of the 1929 UAA, including

reports and testimony by eugenics advocate Dr. Harry H. Laughlin, antagonistic statements by a few

lawmakers, and historical context. (Def.’s Equal Protection Mot. at 3–12.) Defendant asserts that this evidence

establishes that racism was a “motivating factor” in passing the law that criminalizes unlawful reentry. See Vill.

of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (A challenger must show “proof that a

discriminatory purpose has been a motivating factor in the decision”). Even if the stray statements by

lawmakers in the 1920s and the relevant historical context can demonstrate a discriminatory purpose behind the

UAA’s original enactment in 1929, Defendant has failed to demonstrate discriminatory purpose behind Section

1326, which was codified in 1952 and amended most recently in 1996. Defendant has not sufficiently shown

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Pet. App. 14a

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Congress’s discriminatory purpose when it passed the INA in 1952 or how the statute’s five amendments since

1952 have failed to cleanse the alleged animus. The “presumption of legislative good faith [is] not changed by a

finding of past discrimination.” Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). The subsequent amendments

attenuate any discriminatory purpose that Defendant may have shown behind the enactment of the UAA in

1929.

Only one court that has confronted this same issue has found a discriminatory purpose: United States v.

Carrillo-Lopez, No. 20-cr-00026-MMD-WGC, 2021 WL 3667330 (D. Nev. Aug. 18, 2021). All other district

courts have found no discriminatory purpose. See, e.g., United States v. Machic-Xiap, No. 19-cr-407-SI, 2021

WL 3362738, at *14 (D. Or. Aug. 3, 2021) (finding that the defendant failed to prove that racial animus was a

motivating factor in the enactment of Section 1326); United States v. Novondo-Ceballos, No. 21-cr-383-RB,

2021 WL 3570229, at *5 (D.N.M. Aug. 12, 2021) (finding that subsequent amendments purged the racial

animus of the UAA); United States v. Rios-Montano, No. 19-cr-2123-GPC, 2020 WL 7226441, at *7 (S.D. Cal.

Dec. 8, 2020) (finding no evidence of discriminatory motive in the 1990 amendment to the INA). The Court

finds these opinions well-reasoned and persuasive.

Disparate Impact

Even if Defendant could show discriminatory purpose, Defendant fails to demonstrate a disparate

impact on Latinos. Defendant asserts that “in 2019, 99% of people prosecuted for illegal reentry were Latino.”

(Def.’s Equal Protection Mot. at 13.) However, the Court cannot determine whether prosecution of Latinos is

disproportional absent data that compares unlawful reentries to prosecutions for unlawful reentries. The reason

that Latinos represent a large percentage of people prosecuted for illegal reentry could reasonably be that

Latinos attempted a large percentage of illegal reentries. “[C]ommon sense suggests that it would be

substantially more difficult for an alien removed to China to return to the United States than for an alien

removed to Mexico to do so.” United States v. Arena-Ortiz, 339 F.3d 1066, 1070 (9th Cir. 2003). An assertion

that Latinos comprise a large percentage of people prosecuted under Section 1326 does not sufficiently

establish disparate impact.2

Conclusion

Accordingly, the Court finds that Defendant has failed to establish the racial animus necessary to

reexamine 8 U.S.C. § 1326, and DENIES his motion to dismiss on those grounds.

As a coda to his motion, Defendant requests an evidentiary hearing to further develop evidence on this

issue. The Court considers the evidence already presented sufficient to rule on the issue, and DENIES

Defendant’s request for an evidentiary hearing.

IV.

CONCLUSION

The Supreme Court also rejected a similar assertion in Department of Homeland Security v. Regents of the Univ. Of Cal., 140

S. Ct. 1891, 1915 (2020). There, the respondents argued that the President’s rescission of the Deferred Action for Childhood Arrivals

(DACA) program resulted in a “disparate impact . . . on Latinos from Mexico, who represent 78% of DACA recipients,” evidencing

racial animus. The Court reasoned that “because Latinos make up a large share of the unauthorized alien population, one would expect

them to make up an outsized share of recipients of any cross-cutting immigration relief program.” Id. at 1915. If that fact was sufficient

to establish disparate impact and racial animus, then “virtually any generally applicable immigration policy could be challenged on

equal protection grounds.” Id. at 1916.

CR-11 (10/08)

APPENDIX B

CRIMINAL MINUTES - GENERAL

Pet. App. 15a

Page 6 of 7

Case 2:20-cr-00083-RGK

Document 51

Filed 12/29/21

Page 7 of 7 Page ID #:1117

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES - GENERAL

For the foregoing reasons, the Court DENIES Defendant’s Motions to Dismiss.

IT IS SO ORDERED.

Initials of Deputy Clerk

cc:

CR-11 (10/08)

APPENDIX B

CRIMINAL MINUTES - GENERAL

Pet. App. 16a

Page 7 of 7

Case 2:20-cr-00083-RGK

Document 61

Filed 04/05/22

Page 1 of 6 Page ID #:1214

JS-3

United States District Court

Central District of California

UNITED STATES OF AMERICA vs.

Defendant

akas:

ELIEL NUNEZ SANCHEZ

Docket No.

2:20-cr-00083-RGK-1

Social Security No. 4

(Last 4 digits)

None.

In the presence of the attorney for the government, the defendant appeared in person on this date.

COUNSEL

MONTH

DAY

YEAR

APR

2022

Michael Parente, DFPD

(Name of Counsel)

PLEA

X GUILTY, and the court being satisfied that there is a factual basis for the plea.

NOLO

CONTENDERE

NOT

GUILTY

FINDING

There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of:

Illegal Alien Found in the United States Following Deportation, in violation of 8 U.S.C. §§ 1326(a), as charged in Count 1 of

the Single-Count Indictment.

JUDGMENT

AND PROB/

COMM

ORDER

The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the

contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that:

Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed to the

custody of the Bureau of Prisons to be imprisoned for a term of: 24 (twenty-four) MONTHS.

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of three years under the following

terms and conditions:

The defendant shall comply with the rules and regulations of the United States Probation & Pretrial Services Office and

Second Amended General Order 20-04.

The defendant shall not commit any violation of local, state, or federal law or ordinance.

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test

within 15 days of release from imprisonment and at least two periodic drug tests thereafter, not to exceed eight tests per month,

as directed by the Probation Officer.

The defendant shall participate in an outpatient substance abuse treatment and counseling program that includes urinalysis,

breath or sweat patch testing, as directed by the Probation Officer. The defendant shall abstain from using alcohol and illicit

drugs, and from abusing prescription medications during the period of supervision.

As directed by the Probation Officer, the defendant shall pay all or part of the costs of the Court-ordered treatment to the

aftercare contractors during the period of community supervision. The defendant shall provide payment and proof of payment

as directed by the Probation Officer. If the defendant has no ability to pay, no payment shall be required.

During the period of community supervision, the defendant shall pay the special assessment in accordance with this

judgment's orders pertaining to such payment.

CR-104 (wpd 12/20)

APPENDIX C

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 17a

Page 1 of 6

Case 2:20-cr-00083-RGK

USA vs.

Document 61

ELIEL NUNEZ SANCHEZ

Filed 04/05/22

Docket No.:

Page 2 of 6 Page ID #:1215

2:20-cr-00083-RGK-1

The defendant shall comply with the immigration rules and regulations of the United States, and if deported from this country,

either voluntarily or involuntarily, not reenter the United States illegally. The defendant is not required to report to the

Probation & Pretrial Services Office while residing outside of the United States; however, within 72 hours of release from

any custody or any reentry to the United States during the period of Court-ordered supervision, the defendant shall report for

instructions to the United States Probation Office located at: the 300 N. Los Angeles Street, Suite 1300, Los Angeles, CA

90012-3323.

The defendant shall cooperate in the collection of a DNA sample from the defendant.

The defendant shall submit the defendant's person, property, house, residence, vehicle, papers, or other areas under the

defendant's control, to a search conducted by a United States Probation Officer or law enforcement officer. Failure to submit

to a search may be grounds for revocation. The defendant shall warn any other occupants that the premises may be subject

to searches pursuant to this condition. Any search pursuant to this condition will be conducted at a reasonable time and in a

reasonable manner upon reasonable suspicion that the defendant has violated a condition of his supervision and that the areas

to be searched contain evidence of this violation.

It is ordered that the defendant shall pay to the United States a special assessment of $100, which is due immediately. Any unpaid

balance shall be due during the period of imprisonment, at the rate of not less than $25 per quarter, and pursuant to the Bureau of

Prisons' Inmate Financial Responsibility Program.

Pursuant to Guideline § 5E1.2(a), all fines are waived as the Court finds that the defendant has established that he is unable to pay and

is not likely to become able to pay any fine.

The Court orders that defendant be considered for participation in the Bureau of Prisons' 500 hour RDAP program.

Bond exonerated.

Defendant remanded into custody forthwith. Remand order furnished to the U.S. Marshal Service.

Defendant advised of his right to appeal.

In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and

Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of

supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke

supervision for a violation occurring during the supervision period.

April 5, 2022

Date

R Garyy Kl

ausner, United S

Klausner,

States District Judge

It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.

Clerk, U.S. District Court

April 5, 2022

Filed Date

CR-104 (wpd 12/20)

APPENDIX C

/s/ Joseph Remigio

Deputy Clerk

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 18a

Page 2 of 6

Case 2:20-cr-00083-RGK

USA vs.

Document 61

Filed 04/05/22

ELIEL NUNEZ SANCHEZ

Docket No.:

Page 3 of 6 Page ID #:1216

2:20-cr-00083-RGK-1

The defendant must comply with the standard conditions that have been adopted by this court (set forth below).

STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE

While the defendant is on probation or supervised release pursuant to this judgment:

The defendant must not commit another federal, state, or local

crime;

The defendant must report to the probation office in the federal

judicial district of residence within 72 hours of imposition of a

sentence of probation or release from imprisonment, unless

otherwise directed by the probation officer;

The defendant must report to the probation office as instructed by

the court or probation officer;

The defendant must not knowingly leave the judicial district

without first receiving the permission of the court or probation

officer;

The defendant must answer truthfully the inquiries of the probation

officer, unless legitimately asserting his or her Fifth Amendment

right against self-incrimination as to new criminal conduct;

The defendant must reside at a location approved by the probation

officer and must notify the probation officer at least 10 days before

any anticipated change or within 72 hours of an unanticipated

change in residence or persons living in defendant’s residence;

The defendant must permit the probation officer to contact him or

her at any time at home or elsewhere and must permit confiscation

of any contraband prohibited by law or the terms of supervision and

observed in plain view by the probation officer;

The defendant must work at a lawful occupation unless excused by

the probation officer for schooling, training, or other acceptable

reasons and must notify the probation officer at least ten days

before any change in employment or within 72 hours of an

unanticipated change;

CR-104 (wpd 12/20)

APPENDIX C

10.

11.

12.

13.

14.

The defendant must not knowingly associate with any persons engaged

in criminal activity and must not knowingly associate with any person

convicted of a felony unless granted permission to do so by the probation

officer. This condition will not apply to intimate family members, unless

the court has completed an individualized review and has determined

that the restriction is necessary for protection of the community or

rehabilitation;

The defendant must refrain from excessive use of alcohol and must not

purchase, possess, use, distribute, or administer any narcotic or other

controlled substance, or any paraphernalia related to such substances,

except as prescribed by a physician;

The defendant must notify the probation officer within 72 hours of being

arrested or questioned by a law enforcement officer;

For felony cases, the defendant must not possess a firearm, ammunition,

destructive device, or any other dangerous weapon;

The defendant must not act or enter into any agreement with a law

enforcement agency to act as an informant or source without the

permission of the court;

The defendant must follow the instructions of the probation officer to

implement the orders of the court, afford adequate deterrence from

criminal conduct, protect the public from further crimes of the

defendant; and provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the

most effective manner.

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 19a

Page 3 of 6

Case 2:20-cr-00083-RGK

USA vs.

ELIEL NUNEZ SANCHEZ

Document 61

Filed 04/05/22

Docket No.:

Page 4 of 6 Page ID #:1217

2:20-cr-00083-RGK-1

The defendant must also comply with the following special conditions (set forth below).

STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS

The defendant must pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless

the fine or restitution is paid in full before the fifteenth (15th) day after the date of the judgment under 18 U.S.C. § 3612(f)(1). Payments may

be subject to penalties for default and delinquency under 18 U.S.C. § 3612(g). Interest and penalties pertaining to restitution, however, are

not applicable for offenses completed before April 24, 1996. Assessments, restitution, fines, penalties, and costs must be paid by certified

check or money order made payable to “Clerk, U.S. District Court.” Each certified check or money order must include the case name and

number. Payments must be delivered to:

United States District Court, Central District of California

Attn: Fiscal Department

255 East Temple Street, Room 1178

Los Angeles, CA 90012

or such other address as the Court may in future direct.

If all or any portion of a fine or restitution ordered remains unpaid after the termination of supervision, the defendant must pay the

balance as directed by the United States Attorney’s Office. 18 U.S.C. § 3613.

The defendant must notify the United States Attorney within thirty (30) days of any change in the defendant’s mailing address or

residence address until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. § 3612(b)(l)(F).

The defendant must notify the Court (through the Probation Office) and the United States Attorney of any material change in the

defendant’s economic circumstances that might affect the defendant’s ability to pay a fine or restitution, as required by 18 U.S.C. § 3664(k).

The Court may also accept such notification from the government or the victim, and may, on its own motion or that of a party or the victim,

adjust the manner of payment of a fine or restitution under 18 U.S.C. § 3664(k). See also 18 U.S.C. § 3572(d)(3) and for probation 18 U.S.C.

§ 3563(a)(7).

Payments will be applied in the following order:

1. Special assessments under 18 U.S.C. § 3013;

2. Restitution, in this sequence (under 18 U.S.C. § 3664(i), all non-federal victims must be paid before the United

States is paid):

Non-federal victims (individual and corporate),

Providers of compensation to non-federal victims,

The United States as victim;

3. Fine;

4. Community restitution, under 18 U.S.C. § 3663(c); and

5. Other penalties and costs.

CONDITIONS OF PROBATION AND SUPERVISED RELEASE PERTAINING TO FINANCIAL SANCTIONS

As directed by the Probation Officer, the defendant must provide to the Probation Officer: (1) a signed release authorizing credit

report inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure and (3) an accurate financial

statement, with supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant must not apply

for any loan or open any line of credit without prior approval of the Probation Officer.

When supervision begins, and at any time thereafter upon request of the Probation Officer, the defendant must produce to the

Probation and Pretrial Services Office records of all bank or investments accounts to which the defendant has access, including any business

or trust accounts. Thereafter, for the term of supervision, the defendant must notify and receive approval of the Probation Office in advance

of opening a new account or modifying or closing an existing one, including adding or deleting signatories; changing the account number or

name, address, or other identifying information affiliated with the account; or any other modification. If the Probation Office approves the

new account, modification or closing, the defendant must give the Probation Officer all related account records within 10 days of opening,

modifying or closing the account. The defendant must not direct or ask anyone else to open or maintain any account on the defendant’s

behalf.

The defendant must not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without

approval of the Probation Officer until all financial obligations imposed by the Court have been satisfied in full.

CR-104 (wpd 12/20)

APPENDIX C

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 20a

Page 4 of 6

Case 2:20-cr-00083-RGK

Document 61

Filed 04/05/22

Page 5 of 6 Page ID #:1218

RETURN

I have executed the within Judgment and Commitment as follows:

Defendant delivered on

Defendant noted on appeal on

Defendant released on

Mandate issued on

Defendant’s appeal determined on

Defendant delivered on

the institution designated by the Bureau of Prisons, with a certified copy of the within Judgment and Commitment.

United States Marshal

Date

Deputy Marshal

CERTIFICATE

I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my

legal custody.

Clerk, U.S. District Court

Filed Date

CR-104 (wpd 12/20)

APPENDIX C

Deputy Clerk

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 21a

Page 5 of 6

USA vs.

Case 2:20-cr-00083-RGK

ELIEL NUNEZ SANCHEZ

Document 61

Filed 04/05/22

Docket No.:

Page 6 of 6 Page ID #:1219

2:20-cr-00083-RGK-1

FOR U.S. PROBATION OFFICE USE ONLY

Upon a finding of violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of

supervision, and/or (3) modify the conditions of supervision.

These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.

(Signed)

CR-104 (wpd 12/20)

Defendant

Date

U. S. Probation Officer/Designated Witness

Date

APPENDIX C

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 22a

Page 6 of 6

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APPENDIX D

ÿÿ

Pet. App. 23a

ÿÿ

United States v. Calderon, Not Reported in Fed. Rptr. (2025)

dismiss the indictment. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

2025 WL 2860607

Only the Westlaw citation is currently available.

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Juan L. CALDERON Nonbera, aka Juan Calderon,

aka Juan Louis Calderon, Defendant-Appellant.

No. 22-50040

Submitted October 6, 2025 * Pasadena, California

FILED OCTOBER 9, 2025

The panel unanimously concludes this case is

suitable for decision without oral argument. See

Fed. R. App. P. 34(a)(2).

Appeal from the United States District Court for the Central

District of California, Otis D. Wright II, District Judge,

Presiding, D.C. No. 2:19-cr-00725-ODW-1

Attorneys and Law Firms

Criminal Appeals C.D.C.A., Appellate Criminal Chief

USAO, Lyndsi Allsop, Assistant U.S. Attorney, Hava Arin

Levenson Mirell, DOJ - Office of the U.S. Attorney, Criminal

Division, Los Angeles, CA, for Plaintiff-Appellee.

Andrew Brian Talai, Office of the Federal Public Defender,

Los Angeles, CA, for Defendant-Appellant.

Before: RAWLINSON, MILLER, and JOHNSTONE, Circuit

Judges.

MEMORANDUM **

This disposition is not appropriate for publication

and is not precedent except as provided by Ninth

Circuit Rule 36-3.

*1 Following a conditional guilty plea, Juan Calderon

Nonbera was convicted of reentering the United States after

having been removed, in violation of 8 U.S.C. § 1326. He

was sentenced to 60 days of imprisonment, to be followed by

three years of supervised release. As permitted by his plea,

Calderon appeals the district court's denial of his motion to

Calderon is a native and citizen of Mexico who came to

the United States when he was eight years old. In 2002, he

was ordered removed by an immigration judge. During his

hearing before the immigration judge, Calderon stated that he

wanted to waive his right to appeal. Since then, Calderon has

repeatedly reentered the country and has been removed on at

least six occasions. Shortly after his most recent removal in

August 2019, Calderon was found in the United States again

without inspection or permission, and a grand jury returned

an indictment charging him with violating 8 U.S.C. § 1326(a)

and (b)(2). Calderon moved to dismiss the indictment under

8 U.S.C. § 1326(d), and the district court denied his motion.

We review de novo the district court's decision whether to

dismiss an indictment under section 1326(d). United States

v. Valdivias-Soto, 112 F.4th 713, 721 (9th Cir. 2024). A

defendant charged with illegal reentry may not collaterally

attack the validity of his removal order unless he demonstrates

that (1) he exhausted any available administrative remedies;

(2) he was improperly deprived of the opportunity for judicial

review; and (3) the entry of the underlying removal order was

fundamentally unfair. 8 U.S.C. § 1326(d); see United States

v. Palomar-Santiago, 593 U.S. 321, 329 (2021).

Calderon did not exhaust his administrative remedies, as

required by section 1326(d)(1), because he did not appeal his

removal order. He argues that he has not failed to exhaust

available administrative remedies because his appellate

waiver was invalid and therefore no administrative remedies

were available to him. See United States v. De La MoraCobian, 18 F.4th 1141, 1147 (9th Cir. 2021) (“[A]n alien who

did not validly waive his right to appeal is exempted from the

exhaustion requirement.”).

We recently held, however, that an invalid waiver of

appeal ordinarily does not render administrative remedies

unavailable for purposes of section 1326(d)(1). United States

v. Nunez, 140 F.4th 1157, 1162–65 (9th Cir. 2025). Calderon

concedes that Nunez forecloses his argument that he satisfies

the first component of section 1326(d). Because he cannot

show that he exhausted administrative remedies, Calderon is

barred under section 1326(d) from challenging his indictment

by collaterally attacking his 2002 removal order.

The government's motion for judicial notice (Dkt. No. 45) is

denied as moot.

APPENDIX E

Pet. App. 24a

United States v. Calderon, Not Reported in Fed. Rptr. (2025)

AFFIRMED.

All Citations

Not Reported in Fed. Rptr., 2025 WL 2860607

End of Document

APPENDIX E

Pet. App. 25a

Case 2:19-cr-00725-ODW

Document 82

Filed 10/12/21

Page 1 of 4 Page ID #:1590

United States District Court

Central District of California

UNITED STATES OF AMERICA,

Case № 2:19-cr-00725-ODW

Plaintiff,

JUAN L. CALDERON NONBERA,

aka “Juan Calderon” and

“Juan Louis Calderon,”

Defendant.

ORDER GRANTING MOTION TO

WITHDRAW ARGUMENT AND

MODIFY ORDER [72]; MODIFYING

ORDER DENYING MOTION TO

DISMISS [71]; AND DENYING

MOTION TO DISMISS [74]

INTRODUCTION & BACKGROUND

Defendant Juan Calderon-Nonbera is an alien who has been officially deported

and removed from the United States on at least seven prior occasions: December 19,

2002; July 3, 2003; June 2, 2010; June 27, 2016; February 17, 2019; June 1, 2019; and

July 15, 2019. He was initially ordered removed on December 19, 2002, in a group

immigration removal proceeding conducted by an Immigration Judge (“IJ”).

By 2019, Defendant had reentered the United States without inspection or permission

on at least six additional occasions. Each time, he was arrested for various criminal

activity, his 2002 removal order was reinstated, and he was again removed. Shortly

after his latest removal, on or about August 4, 2019, he was found in the United States

again without inspection or permission and the Government charged him with

APPENDIX F

Pet. App. 26a

Case 2:19-cr-00725-ODW

Document 82

Filed 10/12/21

Page 2 of 4 Page ID #:1591

violating 8 U.S.C. §§ 1326(a) and (b)(2),1 Illegal Alien Found in the United States

Following Deportation. (Indictment 1, ECF No. 1.)

Defendant has moved to dismiss the Indictment twice. (See First Mot. Dismiss,

ECF No. 20; Second Mot. Dismiss, ECF No. 21.) The Court denied both Motions.

(See Order Den. First Mot., ECF No. 71; Order Den. Second Mot., ECF No. 70.) The

Government now moves to withdraw a jurisdictional argument it made in opposition

to Defendant’s First Motion and to modify the Court’s Order denying that motion.

(Mot. Withdraw & Modify, ECF No. 72.) Defendant also moves for the third time to

dismiss the Indictment, now on equal protection grounds. (Third Mot. Dismiss, ECF

No. 74.) For the reasons that follow, the Court GRANTS the Government’s Motion

to Withdraw and Modify [72], MODIFIES the Order denying Defendant’s First

Motion [71], and DENIES Defendant’s Third Motion [74].

II.

DISCUSSION

The Court grants the Government’s Motion to Withdraw and Modify [72].

Defendant does not oppose withdrawal and the Court has jurisdiction to consider

Defendant’s collateral attack on the 2002 removal order, which serves as a predicate

element for the illegal reentry offense. 8 U.S.C. § 1326(d); United States v. Palomar-

Santiago, 141 S. Ct. 1615, 1620 (2021). The Court denies Defendant’s First Motion

on other grounds and therefore modifies the Court’s prior Order [71], as discussed

below.

The Court denies Defendant’s First Motion [20], made pursuant to § 1326(d),

on the grounds that Defendant has not satisfied the mandatory elements of § 1326(d)

nor shown that his removal was fundamentally unfair. Under § 1326(d), a defendant

charged with unlawful reentry may not collaterally attack the underlying removal

order unless they demonstrate: (1) they have exhausted any administrative remedies,

(2) they were deprived an opportunity for judicial review, and (3) “the entry of the

order was fundamentally unfair.” The Supreme Court recently held that each of these

All subsequent statutory citations refer to Title 8 of the United States Code, unless otherwise noted.

APPENDIX F

Pet. App. 27a

Case 2:19-cr-00725-ODW

Document 82

Filed 10/12/21

Page 3 of 4 Page ID #:1592

statutory requirements is mandatory. Palomar-Santiago, 141 S. Ct. at 1621–22. As

Defendant argues only that his 2002 removal order was fundamentally unfair under

§ 1326(d)(3), he has not demonstrated exhaustion or deprivation of judicial review

and therefore may not now collaterally attack the 2002 removal order. See id.

Defendant contends Ninth Circuit precedent has established an “exhaustion

excusal rule” that excuses compliance with the first two elements in certain

circumstances when removal is shown to be fundamentally unfair. (Reply ISO First

Mot. 8–12, ECF No. 38.)

precedent. (Id.) Although the Ninth Circuit has recognized that Palomar-Santiago

“casts doubt on the continued vitality” of the exhaustion excusal rule, it has so far

declined to address the question directly. See United States v. Bastide-Hernandez,

3 F.4th 1193, 1197 (9th Cir. 2021). In any event, the Court need not resolve the effect

of Palomar-Santiago here because, even assuming Defendant is correct and the Ninth

Circuit’s exhaustion excusal rule somehow survives Palomar-Santiago, Defendant has

not demonstrated that his removal was fundamentally unfair.

He argues that Palomar-Santiago did not touch this

First, the record does not reflect that Defendant was deprived of a pro bono

legal services list. At the group removal proceeding, the IJ asked anyone who had not

received the list to raise their hand and Defendant, who “speak[s] English with a

native fluency,” (First Mot. 2), did not raise his hand. Second, the record does not

reflect that Defendant was deprived of a meaningful advisal regarding voluntary

departure.

eligibility for voluntary departure, and the IJ’s subsequent direct inquiry of Defendant

regarding his ability to depart “at his own expense” was not fundamentally unfair. See

Martinez-Valdez, 322 F. App’x 507, 508 (9th Cir. 2009) (finding removal was not

fundamentally unfair when IJ limited voluntary departure eligibility to those able to

pay their own travel expenses and simply asked whether the defendant had the

necessary funds); but see United States v. Monje-Campos, No. EDCR 18-00334 JGB,

2019 WL 7576679, at *4 (C.D. Cal. June 10, 2019) (finding IJ erred by limiting

The IJ adequately advised the group, at length, regarding potential

APPENDIX F

Pet. App. 28a

Case 2:19-cr-00725-ODW

Document 82

Filed 10/12/21

Page 4 of 4 Page ID #:1593

inquiry to whether a defendant had the ability to pay).

As Defendant fails to

demonstrate that his removal was fundamentally unfair, his derivative argument that

his appeal waiver was invalid necessarily also fails. Accordingly, Defendant’s First

Motion [20] is denied.

Finally, the Court denies Defendant’s Third Motion [74], in which he challenges

§ 1326 on equal protection grounds. Section 1326 is a federal immigration-regulation

statute meaning “[t]he scope of judicial inquiry . . . is exceedingly narrow.” United

States v. Cupa-Guillen, 34 F.3d 860, 862 (1994) (first alteration in original).

Section 1326 satisfies the appropriately deferential standard—rational basis—because

the “strong societal interest in controlling immigration . . . is furthered by enhancing

punishment against persons who illegally enter the country.” See id. at 863; see also

Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011) (“We review

equal protection challenges to federal immigration laws under the rational basis

standard and uphold them if they are rationally related to a legitimate government

purpose.” (internal quotation marks omitted)).

III.

CONCLUSION

As discussed above, the Court GRANTS the Government’s Motion to

Withdraw and Modify [72]; MODIFIES the Order denying Defendant’s First Motion,

as stated above [71]; and DENIES Defendant’s Third Motion [74].

IT IS SO ORDERED.

October 8, 2021

____________________________________

OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE

APPENDIX F

Pet. App. 29a

Case 2:19-cr-00725-ODW

Document 98

Filed 03/02/22

Page 1 of 5 Page ID #:1733

United States District Court

Central District of California

UNITED STATES OF AMERICA vs.

Docket No.

Juan L. Calderon Nonbera

Defendant

Calderon, Juan Marcos

Social Security No. 2

akas:

Also Known As: Nomera, Jose

Also Known As: Mendez, Jesus

Also Known As: Cortez, Juan

Also Known As: Calderon, John

Also Known As: Calderon, Juan Luis

Also Known As: Avevalo, Juan

Also Known As: Sanchez, Alvaro

Also Known As: Calderon, Juan Carlos

Also Known As: Calderon, Juan

CR 19-00725-ODW

(Last 4 digits)

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government, the defendant appeared in person on this date.

COUNSEL

MONTH

DAY

YEAR

March

2022

David Lee Menninger, DFPD

(Name of Counsel)

PLEA

GUILTY, and the court being satisfied that there is a factual basis for the plea.

NOLO

CONTENDERE

NOT

GUILTY

There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of:

Count 1: 8:1326(a),(b)(2) ILLEGAL ALIEN FOUND IN THE UNITED STATES FOLLOWING DEPORTATION

JUDGMENT The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the

AND PROB/ contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that:

Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed to the

COMM

custody of the Bureau of Prisons to be imprisoned for a term of:

ORDER

FINDING

60 days on the Single-Count Indictment with credit time served. This term shall run

concurrently with any undischarged term of imprisonment imposed in any other matter.

It is ordered that defendant shall pay to the United States a special assessment of $100, which is due

immediately.

Pursuant to Section 5E1.2(e) of the Guidelines, all fines are waived, as it is found that defendant does not

have the ability to pay a fine.

Upon release from imprisonment defendant shall be placed on supervised release for a term of three (3)

years under the following terms and conditions:

CR-104 (wpd 10/18)

APPENDIX G

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 30a

Page 1

Case 2:19-cr-00725-ODW

USA vs.

Juan L. Calderon Nonbera

Document 98

Filed 03/02/22

Docket No.:

Page 2 of 5 Page ID #:1734

CR 19-00725-ODW

The defendant shall comply with the rules and regulations of the United States Probation & Pretrial

Services Office and Second Amended General Order 20-04.

The defendant shall not commit any violation of local, state, or federal law or ordinance.

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall

submit to one drug test within 15 days of release from custody and at least two periodic drug tests

thereafter, not to exceed eight tests per month, as directed by the Probation Officer.

The defendant shall cooperate in the collection of a DNA sample from himself.

The defendant shall comply with the immigration rules and regulations of the United States, and if deported

from this country, either voluntarily or involuntarily, not reenter the United States illegally. The defendant is

not required to report to the Probation & Pretrial Services Office while residing outside of the United States;

however, within 72 hours of release from any custody or any reentry to the United States during the period of

Court-ordered supervision, the defendant shall report for instructions to the United States Probation Office

located at: the 300 N. Los Angeles Street, Suite 1300, Los Angeles, CA 90012-3323.

The defendant shall not obtain or possess any driver's license, Social Security number, birth certificate, passport

or any other form of identification in any name, other than the defendant's true legal name, nor shall the

defendant use, any name other than the defendant's true legal name without the prior written approval of the

Probation Officer.

Pursuant to 18 U.S.C. § 3553(a), the Court shall impose a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in paragraph (2) of this subsection. The Court, in determining the particular sentence to be

imposed, shall consider -1.

The nature and circumstances of the offense and the history and characteristics of the defendant;

The need for the sentence imposed -a.

To reflect the seriousness of the offense; to promote respect for the law, and to provide just punishment for the

offense;

To afford adequate deterrence to future criminal conduct;

To protect the public from further crimes of the defendant; and

To provide the defendant with needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner.

The kinds of sentences available;

The guideline sentencing range;

The need to avoid unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct

CR-104 (wpd 10/18)

APPENDIX G

JUDGMENT & PROBATION/COMMITMENT ORDER

Pet. App. 31a

Page 2

Case 2:19-cr-00725-ODW

USA vs.

Document 98

Filed 03/02/22

Juan L. Calderon Nonbera

Docket No.:

Page 3 of 5 Page ID #:1735

CR 19-00725-ODW

In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and

Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of

supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke

supervision for a violation occurring during the supervision period.

March 2, 2022

Date

U. S. District Judge

It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.

Clerk, U.S. District Court

March 2, 2022

Filed Date

Sheila English /s/