United States v. Manriquez-Alvarado

• Decision Date: 24 March 2020
• Docket Number: No. 19-2521,19-2521
• Citation: 953 F.3d 511
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edmundo MANRIQUEZ-ALVARADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

953 F.3d 511

UNITED STATES of America, Plaintiff-Appellee,

v.Edmundo MANRIQUEZ-ALVARADO, Defendant-Appellant.

No. 19-2521

United States Court of Appeals, Seventh Circuit.

Argued March 3, 2020

Decided March 24, 2020

Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Johanes Maliza, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.

Before Easterbrook, Kanne, and St. Eve, Circuit Judges.

Easterbrook, Circuit Judge.

Edmundo Manriquez-Alvarado, a citizen of Mexico, has entered the United States repeatedly by stealth. How often we do not know, but the record shows that he was ordered removed in 2008, 2010, 2012, 2014, and 2017, each time following a criminal conviction. (His record includes convictions for burglary, domestic violence, trafficking illegal drugs, and unauthorized reentry.) The gaps between the removal orders stem from the time it takes to catch him, plus time he spends in prison following his convictions.

Manriquez-Alvarado was found in the United States yet again in 2018 and indicted for illegal reentry. 8 U.S.C. § 1326(a), (b)(2). His drug crime is defined by 8 U.S.C. § 1101(a)(43)(B) as an "aggravated felony". This increases the maximum punishment for unauthorized reentry. After the district court denied his motion to dismiss the indictment, Manriquez-Alvarado pleaded guilty and was sentenced to 39 months’ imprisonment. The plea reserved the right to contest on appeal the denial of the motion to dismiss.

All of the convictions for reentry rest on the 2008 removal order. Manriquez-Alvarado contends that this order is invalid because immigration officials never had "jurisdiction" to remove him. That’s because a document captioned "Notice to Appear" that was served on him in February 2008 did not include a date for a hearing. Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), holds that a document missing this information does not satisfy the statutory requirements, 8 U.S.C. § 1229(a)(1), for a Notice to Appear. We held in Ortiz-Santiago v. Barr , 924 F.3d 956 (7th Cir. 2019), that Pereira identifies a claims-processing doctrine rather than a rule limiting the jurisdiction of immigration officials. Manriquez-Alvarado wants us to overrule Ortiz-Santiago , but that’s not in the cards. No other circuit has disagreed with its holding, and its reasoning is powerful.

That’s not all. Manriquez-Alvarado supposes that, if Pereira establishes a jurisdictional rule, then any earlier removal decision is void. Established law is otherwise. Lawyers have it drilled into them that jurisdictional deficiencies may be raised at any time. What this means, however, is any time during the litigation to which the problem applies. Suppose a suit is filed in which the plaintiff alleges the parties’ "residence" rather than their "citizenship." That is a jurisdictional defect. E.g., Gilbert v. David , 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360 (1915) ; Steigleder v. McQuesten , 198 U.S. 141, 25 S.Ct. 616, 49 L.Ed. 986 (1905) ; Denny v. Pironi , 141 U.S. 121, 11 S.Ct. 966, 35 L.Ed. 657 (1891) ; Robertson v. Cease , 97 U.S. 646, 24 L.Ed. 1057 (1878). But if the problem escapes notice, and the case goes to judgment on the merits, the result is conclusive; the decision cannot be collaterally attacked on the ground that the jurisdictional allegations were defective. See, e.g., Travelers Indemnity Co. v. Bailey , 557 U.S. 137, 152–53, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009). This principle is equally applicable to administrative decisions—after all, agencies operate outside Article III, which is the source of judges’ punctiliousness about their own jurisdiction—which means that the 2008 removal order could not be set aside even if we were to overrule Ortiz-Santiago .

Older removal orders are potentially open to collateral attack, but not because a defect in a long-closed proceeding could be called "jurisdictional." To mount a belated challenge the alien must show:

(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). This statute requires the alien to show all three; one or two won’t suffice. See United States v. Hernandez-Perdomo , 948 F.3d 807, 810–11 (7th Cir. 2020) ; United States v. Watkins , 880 F.3d 1221, 1224 (11th Cir. 2018) ; United States v. Estrada , 876 F.3d 885, 887 (6th Cir. 2017) ; United States v. Lopez-Collazo , 824 F.3d 453, 458 (4th Cir. 2016) ; United States v. Soto-Mateo , 799 F.3d 117, 120 (1st Cir. 2015) ; United States v. Cordova-Soto , 804 F.3d 714, 719 (5th Cir. 2015) ; United States v. Lopez-Chavez , 757 F.3d 1033, 1044 (9th Cir. 2014) ; United States v. Torres , 383 F.3d 92, 99 (3d Cir. 2004) ; United States v. Fernandez-Antonia , 278 F.3d 150, 157 (2d Cir. 2002).

The removal proceedings in 2008 charged Manriquez-Alvarado with being in the United States without authorization, having committed a crime of moral turpitude that cut off avenues for discretionary relief. He could have contested those charges, taking his arguments to the Board of Immigration Appeals ( § 1326(d)(1) ) and the court of appeals ( § 1326(d)(2) ). Likewise he could have argued that the Notice to Appear did not satisfy the statute, pursuing both administrative and judicial relief. He did none of those things. Instead he stipulated to his removal and waived his rights to a hearing, to administrative review, and to judicial review. The agency did not issue a new notice with a hearing date, because Manriquez-Alvarado did not want a hearing. After signing this waiver he was removed.

Now he tells us that it would have been futile to pursue administrative and judicial remedies in 2008. In a sense this is irrefutable: once he waived his procedural rights and agreed to be removed, of course it would have been futile to continue resisting. But the remedies were nonetheless "available" to Manriquez-Alvarado, had he decided to stand on his rights. That Manriquez-Alvarado waived those rights makes the 2008 order less amenable to collateral attack and not more, as he supposes.

Manriquez-Alvarado asserts that seeking review would have been futile in a second sense: Pereira was not decided until 2018, so he could not have relied on it in 2008. Once again this is irrefutable, but Pereira interpreted a statute that long predates 2008. Manriquez-Alvarado was free to rely on that statute. If the agency and court ruled against him, the relevant decision by the Supreme Court might have carried his...