UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JUAN LUIS ZUNIGA-GUERRERO, Defendant-Appellant. No. 19-6019 (D.C. No. 5:18- CR-00168-HE-1) (W.D. Okla.)

ORDER AND JUDGMENT *

Before MATHESON, MCKAY, and BACHARACH, Circuit Judges.

This appeal arises from an indictment against Mr. Juan ZunigaGuerrero for unlawfully reenteri ng the United States after remo val. See 8 U.S.C. § 1326(a). Mr. Zuniga-Guerrero move d to dismiss the indi ctment, arguing that the immigration j udge lacked jurisdiction when he ordered

* The parties do not request oral ar gument, and it would not mate rially help us to decide this appeal. We have thus decided the appeal based on the appellate briefs and t he record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgme nt does not constitut e binding precedent except under the doctrines of law of the case, res judicata, and colla teral estoppel. But the order and judgment may be cited for its persuasive valu e if otherwise appropriate. Fed. R. A pp. P. 32.1(a); 10th Cir. R. 32 .1(A). FILED United States Court of Appeals Tenth Circuit 

### July 5, 2019
Elisabeth A. Shumaker Clerk of Court2 removal. The district court denied the motion to dismiss based on the unavailability of c ollateral relief. See 8 U.S.C § 1326(d ). Mr. ZunigaGuerrero appeals, conte nding that the statu tory requirements fo r collateral review were either e xcused or met. Engag ing in de novo review, 1 we reject this argument and affirm. Under the relevant statutory scheme, aliens charged with unlaw ful reentry after removal can challe nge the validity of their under lying removal orders only by satis fying three requirements:
1. The alien exhausted available administrative remedies.
2. The alien lacked an opportunity for judici al review in the removal proceedings.
3. Entry of the remova l order was “fundam entally unfair.” 8 U.S.C. § 1326 (d)(1)–(3); United States v. Adam-Orozco , 607 F.3d 647, 651 (10th Cir. 2010) (Gorsuch, J.). Mr. Zuniga-Guerrero c ontends that he need not satisfy these requirements because the immigr ation judge lacked jurisdiction to enter the removal order. According to Mr. Zuniga-Guerrero, the immigratio n judge lacked jurisdiction because th e notice to appear had omitted th e date and time to appear.

1 See United States v. Wittgenstein , 163 F.3d 1164, 1170 (10th Cir. 1998) (de novo review).3 We rejected thi s argument in United States v. Garcia-Galvan , No. 18-6198, 2019 WL 2513637, at *2–3 (10th Cir. June 18, 2019) (unpublished); see also Soriano-M endosa v. Barr , No. 18-9535, 2019 WL 1531499, at *4 (10th Cir. Apr. 9, 2019) (unpublished ) (concludi ng that the failure to include a date and tim e in the notice to appear had “no jurisdictional sig nificance”). Though Garcia-Galvan is not precedential, it is persuasive. Guided by Garcia-Galvan , we conclude th at Mr. ZunigaGuerrero needed to satisfy the t hree statutory requirements bef ore the district court could undertake collateral re view of the removal order. In our view, the district court correctly ruled that Mr. Zuniga-Guerre ro had failed to satisfy the first two s tatutory requirements. First, Mr. Zuniga-Guer rero did not exhaust available administra tive remedies. He contends that exhaustion would have been futile. B ut futility is not a permissible excuse when administrative exhaustion is r equired by

statute. See Booth v. Churner , 532 U.S. 731, 741 n.6 (2001) (refusing to “read futility or other exceptions into stat utory exhaustion re quirements where Congress has provided othe rwise”). Because the statute ex pressly requires administrative exhaustion, Mr. Zuniga-Guerrero cannot avoid the exhaustion requirement even if it would have been futile. See United States v. Copeland , 376 F.3d 61, 66–67 (2d Cir. 2004) (holding that no futility4 exception exists, with one excep tion not relevant here, for the requirement of administrative exhausti on under 8 U.S.C . § 1326(d)). 2 Second, Mr. Zuniga-Guerrero has not shown deprivation of a righ t to judicial review in his removal pr oceedings. Instead, Mr. Zuniga -Guerrero appears to argue that unfavorable precedents in the agency woul d have prevented judicial relief. But e ven if Mr. Zuniga-Guerrero had lost in the agency, he could have appealed the removal order. See 8 U.S.C. §§ 1229a(b)(5)(D), 1252; see also United States v. Rivera-Nevarez , 418 F.3d 1104, 1108–11 (10th Cir. 2005) (holding that the availabil ity of judicial review under 8 U.S.C. § 1252 prevented co llateral revi ew of the defendant’s removal order). Thus, Mr. Zuniga-Guerrero has not s hown the absence of a right to judicial review in the removal proceeding s. 3

2 When a statute requires a litig ant to exhaust a dministrative remedies that “may have been av ailable,” 8 U. S.C. § 1326(d)(1 ), exhausti on may be unnecessary if “the rel evant administrative procedure lacks aut hority to provide any relief or to take any action whatsoever in response to a complaint,” Booth v. Churner , 532 U.S. 731 , 736 (2001). In United States v. Copeland , the Second Circuit characterize d this principle as a type of futility exception. 376 F.3d 61, 66–67 (2d Ci r. 2004). But Mr. ZunigaGuerrero argues only that he would not have been able to prevai l in an administrative challe nge; he doesn’t ques tion the availability of a remedy under administrative procedures.

3 The district court also concluded that Mr. Zuniga-Guerrero ha d not shown a lack of fundamental fair ness. We need not decide this i ssue because Mr. Zuniga-Guerrero neede d to satisfy all three of the requirements to justify collateral review. See 18 U.S.C. § 1326(d) (using “and” in listing the three requir ements for a collateral challe nge); see also United States v. Ochoa , 861 F.3d 1010, 1019 (9th Cir. 2017) (“By using5 * * * Mr. Zuniga-Guerrero cannot challenge the val idity of his underl ying removal order because he fails t o satisfy two of the statutory requirements for collateral review. We thus affirm the denial of Mr. Zuniga- Guerrero’s motion to dismiss his indictment. Entered for the Court

Robert E. Bacharach Circuit Judge

the conjunction ‘and ,’ Congress signified that the alien must e stablish that all three conditions are met.”).