Eliel Nunez Sanchez v. United States

In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), this Court held that, in an illegal-reentry prosecution, the fact that the defendant’s waiver of the right to appeal the underlying removal order was “not considered or intelligent” marked a defect in the removal proceedings that “rendered direct review of the Immigration Judge’s determination unavailable.” Id. at 840–41. Congress codified that decision at 8 U.S.C. § 1326(d), which expressly allows defendants charged with illegal reentry to collaterally challenge the validity of their underlying removal orders after demonstrating, among other things, that they “exhausted any administrative remedies that may have been available to seek relief against the order.” 8 U.S.C. § 1326(d)(1). Five circuits hold, consistent with Mendoza-Lopez, that an invalid waiver of the right to appeal an immigration judge’s decision renders administrative remedies unavailable for purposes of Section 1326(d)(1). In these cases, by contrast, the Ninth Circuit held that whether a defendant’s appeal waiver was “considered and intelligent” is “immaterial” for purposes of Section 1326(d)(1). The question presented is: When a person waives the right to appeal an immigration judge’s removal order, but that waiver is invalid, has the person exhausted available administrative remedies for purposes of satisfying Section 1326(d)(1)? (i)