UNITED STATES COURT 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 reentering the United States after removal. See 8 

U.S.C. § 1326(a). Mr. Zuniga-Guerrero moved to dismiss the indictment, 

arguing that the immigration judge lacked jurisdiction when he ordered 

 

* The parties do not request oral argument, and it would not materially 

help us to decide this appeal. We have thus decided the appeal based on the 

appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 

10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. 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 Court
2 

removal. The district court denied the motion to dismiss based on the 

unavailability of collateral relief. See 8 U.S.C § 1326(d). Mr. ZunigaGuerrero appeals, contending that the statutory requirements for collateral 

review were either excused or met. Engaging in de novo review,1

 we reject 

this argument and affirm. 

 Under the relevant statutory scheme, aliens charged with unlawful 

reentry after removal can challenge the validity of their underlying 

removal orders only by satisfying three requirements: 

1. The alien exhausted available administrative remedies. 

2. The alien lacked an opportunity for judicial review in the 

removal proceedings. 

3. Entry of the removal order was “fundamentally 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 contends that he need not satisfy these 

requirements because the immigration judge lacked jurisdiction to enter the 

removal order. According to Mr. Zuniga-Guerrero, the immigration judge 

lacked jurisdiction because the notice to appear had omitted the 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 this 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-Mendosa v. Barr, No. 18-9535, 2019 WL 

1531499, at *4 (10th Cir. Apr. 9, 2019) (unpublished) (concluding that the 

failure to include a date and time in the notice to appear had “no 

jurisdictional significance”). Though Garcia-Galvan is not precedential, it 

is persuasive. Guided by Garcia-Galvan, we conclude that Mr. ZunigaGuerrero needed to satisfy the three statutory requirements before the 

district court could undertake collateral review of the removal order. In our 

view, the district court correctly ruled that Mr. Zuniga-Guerrero had failed 

to satisfy the first two statutory requirements. 

First, Mr. Zuniga-Guerrero did not exhaust available administrative 

remedies. He contends that exhaustion would have been futile. But futility 

is not a permissible excuse when administrative exhaustion is required by 

statute. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (refusing to 

“read futility or other exceptions into statutory exhaustion requirements 

where Congress has provided otherwise”). Because the statute expressly 

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 futility 
4 

exception exists, with one exception not relevant here, for the requirement 

of administrative exhaustion under 8 U.S.C. § 1326(d)).2

Second, Mr. Zuniga-Guerrero has not shown deprivation of a right to 

judicial review in his removal proceedings. Instead, Mr. Zuniga-Guerrero 

appears to argue that unfavorable precedents in the agency would have 

prevented judicial relief. But even 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 availability of 

judicial review under 8 U.S.C. § 1252 prevented collateral review of the 

defendant’s removal order). Thus, Mr. Zuniga-Guerrero has not shown the 

absence of a right to judicial review in the removal proceedings.3

 

2

 When a statute requires a litigant to exhaust administrative remedies 

that “may have been available,” 8 U.S.C. § 1326(d)(1), exhaustion may be 

unnecessary if “the relevant administrative procedure lacks authority 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 characterized this principle as a type of 

futility exception. 376 F.3d 61, 66–67 (2d Cir. 2004). But Mr. ZunigaGuerrero argues only that he would not have been able to prevail in an 

administrative challenge; he doesn’t question the availability of a remedy 

under administrative procedures. 

3

 The district court also concluded that Mr. Zuniga-Guerrero had not 

shown a lack of fundamental fairness. We need not decide this issue 

because Mr. Zuniga-Guerrero needed to satisfy all three of the 

requirements to justify collateral review. See 18 U.S.C. § 1326(d) (using 

“and” in listing the three requirements for a collateral challenge); see also 

United States v. Ochoa, 861 F.3d 1010, 1019 (9th Cir. 2017) (“By using 
5 

* * * 

Mr. Zuniga-Guerrero cannot challenge the validity of his underlying 

removal order because he fails to 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 establish that 

all three conditions are met.”).