### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1312
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v. J UAN M ANUEL L ARIOS

- B UENTELLO , Defendant

- Appellant

.

____________________ Appeal from the Unit ed States District Court for the Western District of Wisconsin

. No. 13

- cr
- 158

- wmc

— William M. Conley , Chief Judge

.

____________________
A RGUED N OVEMBER 17, 2015

— D ECIDED N OVEMBER 23, 2015

____________________

Before F LAUM , E ASTERBROOK , and H AMILTON , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Juan Larios

- Buentello has been removed from the United States frequently in light of his long criminal record (14 convictions in Florida a lone). He repeatedly returns and has been convicted three times of i llegal reentry, which violates 8 U.S.C. §1326(a). The convi ction now under review arose when Wisconsin turned him over to immigration officials after he had been caught fle e-2 No. 15

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ing the scene of an auto accident. The district judge se ntenced him to 36 months’ imprisonment. Larios

- Bu entello maintains that the district judge wrongly rejected his defense under §1326(d). (After the judge rejected the defense, Larios

Buentello entered a conditional guilty plea, preserving a ppellate review of this issue.)
Subsection 1326(d) permits an alie n to defeat a prosec ution for illegal reentry by showing that “ (1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) t he deportation proceedings

... improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundam entally u nfair.” An immigration judge ordered Larios

- Buentello r emoved in 1998. ( All later removals have been based on that order.) He contends that this removal was “fundamentally unfair” because t he IJ did not advise him that he would be eligible to seek discretionary relief from removal under §212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. §1182(c). The IJ did not tell him this because §212(c) had been r epealed in 1996 by the Ille gal Immigration Reform and Imm igrant Responsibility Act (IIRIRA) (Sept. 30, 1996) , and the Department of Justice had taken the position that the repea ler applies to aliens whose convictions predate the IIRIRA’s effectiveness in April 1997 . The Supreme Cour t disagreed with that posi tion in 2001, as applied to aliens who pleaded guilty to felonies before the enactment of the Antiterrorism and Effective Death Penalty Act ( AEDPA) ( April 24 , 1996 ), which made §212(c) unavailable to aliens whose convi ctions led to sentences exceeding five years’ imprisonment . See INS v. St. Cyr , 533 U.S. 289 (2001). The Justices observed that theNo. 15

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AEDPA ’s changes were not expressly retroactive, while the IIRIRA declared full retroactivity. St. Cyr therefore thought that pre

- AEDPA guilty pleas were not good reasons to eli minate §212(c) opportuni ties, for defendants’ willingness to admit guilt might have been influenced by the fact that b efore April 24, 1996, no felony conviction (even one for an “aggravated” felony) inevi tably led to removal

. Th e district court held that Larios

- Buentello had not e stablished a defense under §1326(d)

— that, indeed, none of the three paragraphs of subsection (d) had been met, and every circuit that has considered the issue has held that an ali en must meet all three. See, e.g., United States v. Soto

Mateo , 799 F.3d 117, 120 (1st Cir. 2015); United States v. Torres , 383 F.3d 92, 98

– 99 (3d Cir. 2004). Larios

- Buentello had not appealed the IJ’s removal ord er to the Board of Immigration A ppeals and thus had not satisfied paragraph (d)(1); he had not been deprived of the opportunity for judicial review and thus had not satisfied paragraph (d)(2); and it is not “fu ndamentally unfair” to refrain from advising an administr ative litigant of an opportunity to seek relief that the agency sincerely believes to be unavailable. No one is entitled to have an adverse litigant announce the opposite of its actual legal position. See United States v. Santiago

- Ochoa , 447 F.3d 1015, 1019

– 20 (7th Cir. 2006) (aliens do not have a constit utional right to be notified even of those discretionary rem edies that the agency believes to be available) ; see also, e.g., Soto

- Mateo , 79 9 F.3d at 123. The second and third points follow directly from United States v. Zambrano

- Reyes , 72 4 F.3d 761 ( 7th Cir. 2013), which rejected a §1326(d) defense by someone who, like Larios

Buentello , was subject to a removal order entered before St.4 No. 15

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Cyr

. Larios

- Buentello tries to distinguish Zambrano

- Reyes on the ground that he waived counsel during his removal pr oceedings, but that decision’s reasoning does not depend on whether the alien retained counsel. What is more, Larios

Buentello unquestionably fails to satisfy paragraph (d)(1). He did not appeal to the BIA, which also prevented a r equest for jud icial review. He offers an excuse for the failure to exhaust administrative remedies

— he maintains that someone told him that an appeal would be futile

— but the statute requires exhaus tion, not excuses.
The order of removal recites that he was told that he w as entitled to appeal and chose not to do so; he does not co ntend that this recital is false. So an administrative appeal was available, even if unlikely to succeed

. A litigant’s unilateral belief that an appeal would fail does not make the oppo rtuni ty “ unavailable ” or excuse failure to use the procedure. See, e.g., Bousley v. United States , 523 U.S. 614 , 622

– 23 (1998). If the BIA had decided adversely to Larios

- Buentello, he could have sought judicial relief, with a reasonable prospect of success. Before St. Cyr five courts of appeals had antic ipated its holding. See 533 U.S. at 293 n.1. The St. Cyr deci sion might have been the Zambrano

- Reyes decision , or the Larios

Buentello decision , had either alien pursued his administr ative and judicial reme dies . See United States v. Roque

Espinoza , 338 F.3d 724, 729 (7th Cir. 2003). “Might have been ” is a potentially important qualifier, because it is unlikely that Larios

- Buentello could have r eceived any benefit from the doctrine of St. Cyr even had he used all administrative and jud icial remedies . St. Cyr’s fel ony conviction was entered in March 1996, a month before the AEDPA became law; Zambrano

- Reyes ’s conviction dates toNo. 15

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1993. But Larios

- Buentello pleaded guilty in March 1997 to three felonies (burglary, gra nd theft, and resisting a police officer). He entered these pleas after both the AEDPA and the IIRIRA were o n the books , and he received concurrent

one

- year sentences. ( Larios

- Buentello has many earlier co nvictions too, but we need not discuss them.)

Not u ntil the IIRIRA took effect at the beginning of April 1997 was the qualification for an “aggravated” felony lo wered to one year in prison and removal made mandatory by the re peal of §212(c) . (The opinions in St. Cyr and Zivkovic v. Holder , 724 F.3d 894 (7t h Cir. 2013), recount many of the statutory changes and make it unnecessary for us to provide a citation for each development .) But the fact that by March 1997 §212(c) had already been repealed in language that d eclared full retroactivity for removal proce edings commen cing the next month would have made it folly for a person in Larios

- Buentello ’s posi tion to plead guilty in reli ance on an option to seek §212(c) re lief that was about to expire

. Larios

Buentello’s removal proceeding did not begin until 1998, and he does not say that he thought that he would be placed in removal proceedings immediately on pleading guilty.

Larios

- Buentello is therefore less well situated than was Zambrano

- Reyes to assert a defense under §1326(d). The di strict court did not err i n entering a conviction.
A FFIRMED