In United States v. Sanchez, --- F.4th ---, No. 22-50072 (9th Cir. 2025), the Court affirmed the district court’s denial of Eliel Nunez Sanchez’s motion to dismiss an indictment charging him with illegal reentry after removal in violation of 8 U.S.C. § 1326.
This decision illustrates how difficult it will be to prevail on a 1326(d) in the Ninth Circuit. If you are litigating such a motion, this case is a must read. The opinion is long and detailed, but the conclusion sums it up:
Each element of § 1326(d)’s bar on collateral attacks to removal orders is mandatory. See Palomar-Santiago, 593 U.S. at 329. 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.
