In United States v. De La Mora-Cobian, --- F.4th ---, No. 20-30187 (9th Cir. 2021), the Court affirmed the district court’s order denying a motion to dismiss the indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that De La Mora-Cobian was precluded from collaterally attacking the underlying order of removal.
"We hold under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States."
"De La Mora-Cobian initiated an application for asylum, received a credible fear interview, and had the opportunity to appeal the adverse credible fear determination to an immigration judge—an administrative remedy he failed to exhaust. While Congress has generally limited administrative challenge to expedited removal orders, see 8 U.S.C. § 1225(b)(1)(C), Congress did allow administrative review of the denial of an asylum claim as part of the expedited removal process, see id. § 1225(b)(1)(B)(iii)(III). De La Mora-Cobian chose to waive this administrative review of his asylum claim, and such a failure to exhaust the statutory remedy constitutes a bar to collateral review of the deportation order now."
