In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1312

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN MANUEL LARIOS-BUENTELLO,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 13-cr-158-wmc — William M. Conley, Chief Judge.

____________________

ARGUED NOVEMBER 17, 2015 — DECIDED NOVEMBER 23, 2015

____________________

Before FLAUM, EASTERBROOK, and HAMILTON, Circuit 

Judges.

EASTERBROOK, Circuit Judge. Juan Larios-Buentello has 

been removed from the United States frequently in light of 

his long criminal record (14 convictions in Florida alone). He 

repeatedly returns and has been convicted three times of illegal reentry, which violates 8 U.S.C. §1326(a). The conviction now under review arose when Wisconsin turned him 

over to immigration officials after he had been caught flee-
2 No. 15-1312

ing the scene of an auto accident. The district judge sentenced him to 36 months’ imprisonment. Larios-Buentello

maintains that the district judge wrongly rejected his defense 

under §1326(d). (After the judge rejected the defense, LariosBuentello entered a conditional guilty plea, preserving appellate review of this issue.)

Subsection 1326(d) permits an alien to defeat a prosecution for illegal reentry by showing that “(1) [he] exhausted 

any administrative remedies that may have been available to 

seek relief against the order; (2) the deportation proceedings 

... improperly deprived [him] of the opportunity for judicial 

review; and (3) the entry of the order was fundamentally unfair.” An immigration judge ordered Larios-Buentello removed in 1998. (All later removals have been based on that 

order.) He contends that this removal was “fundamentally 

unfair” because the 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The IJ did not tell him this because §212(c) had been repealed in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Sept. 30, 1996), and the 

Department of Justice had taken the position that the repealer applies to aliens whose convictions predate the IIRIRA’s 

effectiveness in April 1997. The Supreme Court disagreed 

with that position 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 convictions 

led to sentences exceeding five years’ imprisonment. See INS 

v. St. Cyr, 533 U.S. 289 (2001). The Justices observed that the 
No. 15-1312 3

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 eliminate §212(c) opportunities, for defendants’ willingness to 

admit guilt might have been influenced by the fact that before April 24, 1996, no felony conviction (even one for an 

“aggravated” felony) inevitably led to removal.

The district court held that Larios-Buentello had not established 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 

alien must meet all three. See, e.g., United States v. SotoMateo, 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 order to the Board of Immigration 

Appeals 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 “fundamentally unfair” to refrain from advising an administrative 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 constitutional right to be notified even of those discretionary remedies that the agency believes to be available); see also, e.g., 

Soto-Mateo, 799 F.3d at 123.

The second and third points follow directly from United 

States v. Zambrano-Reyes, 724 F.3d 761 (7th Cir. 2013), which 

rejected a §1326(d) defense by someone who, like LariosBuentello, was subject to a removal order entered before St. 
4 No. 15-1312

Cyr. Larios-Buentello tries to distinguish Zambrano-Reyes on 

the ground that he waived counsel during his removal proceedings, but that decision’s reasoning does not depend on 

whether the alien retained counsel. What is more, LariosBuentello unquestionably fails to satisfy paragraph (d)(1). 

He did not appeal to the BIA, which also prevented a request for judicial 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 exhaustion, not excuses.

The order of removal recites that he was told that he was 

entitled to appeal and chose not to do so; he does not contend 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 opportunity “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 anticipated its holding. See 533 U.S. at 293 n.1. The St. Cyr decision 

might have been the Zambrano-Reyes decision, or the LariosBuentello decision, had either alien pursued his administrative and judicial remedies. See United States v. RoqueEspinoza, 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 received any benefit from the doctrine of St. Cyr even had he 

used all administrative and judicial remedies. St. Cyr’s felony conviction was entered in March 1996, a month before the 

AEDPA became law; Zambrano-Reyes’s conviction dates to 
No. 15-1312 5

1993. But Larios-Buentello pleaded guilty in March 1997 to 

three felonies (burglary, grand theft, and resisting a police 

officer). He entered these pleas after both the AEDPA and 

the IIRIRA were on the books, and he received concurrent 

one-year sentences. (Larios-Buentello has many earlier convictions too, but we need not discuss them.)

Not until the IIRIRA took effect at the beginning of April 

1997 was the qualification for an “aggravated” felony lowered to one year in prison and removal made mandatory by 

the repeal of §212(c). (The opinions in St. Cyr and Zivkovic v. 

Holder, 724 F.3d 894 (7th 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 declared full retroactivity for removal proceedings commencing the next month would have made it folly for a person in 

Larios-Buentello’s position to plead guilty in reliance on an 

option to seek §212(c) relief that was about to expire. LariosBuentello’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 district court did not err in entering a conviction.

AFFIRMED