In United States v. Portillo-Gonzalez, --- F.4th ---, No. 21-10260 (9th Cir. 2023), the Court affirmed the district court’s judgment in a case in which Praxedis Saul Portillo-Gonzalez entered a conditional guilty plea to unlawful reentry by a previously removed alien, in violation of 8 U.S.C. § 1326, after the district court denied his motion under 8 U.S.C. § 1326(d) to dismiss the indictment.
Portillo-Gonzalez's argument was that his indictment should have been dismissed on the ground that the removal order underlying his unlawful reentry charge was invalid due to an error by the immigration judge at his removal hearing, as to whether he was eligible for voluntary departure.
Portillo-Gonzalez claimed that, under controlling Ninth Circuit precedent, the IJ’s error sufficed to establish that he satisfied all of the § 1326(d) requirements for collaterally challenging a removal order in the context of a § 1326 prosecution.
The Court rejected that argument, holding that United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021) abrogated the prior Ninth Circuit case law on which Portillo-Gonzalez relied:
Because, under Palomar-Santiago, an administrative appeal to the BIA was “available” to challenge PortilloGonzalez’s 2000 removal order, his failure to exhaust that remedy means that he did not satisfy § 1326(d)(1). Because he could have sought judicial review had he taken such an appeal, he was not “deprived . . . of the opportunity for judicial review” and therefore did not satisfy § 1326(d)(2). And because he must satisfy all three requirements to invoke § 1326(d)’s exception, see Palomar-Santiago, 141 S. Ct. at 1620–21, he remains subject to § 1326(d)’s general rule that he “may not challenge the validity” of his predicate removal order. See 8 U.S.C. § 1326(d). The district court therefore properly denied Portillo-Gonzalez’s motion to dismiss the indictment. Its judgment is therefore affirmed.
