NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

 v. 

MARTIN GUADALUPE CARDIEL-RUIZ, 

Defendant-Appellee.

No. 21-10139 

D.C. Nos. 

3:20-cr-00376-CRB-1 

3:20-cr-00376-CRB 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted August 6, 2024*

Pasadena, California

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

The United States appeals the district court’s order dismissing the indictment 

charging Defendant-Appellee Martin Guadalupe Cardiel-Ruiz with one count of 

illegal reentry after deportation in violation of 8 U.S.C. § 1326. The district court 

dismissed the indictment on the grounds that the underlying removal order entered 

against Cardiel-Ruiz was invalid pursuant to § 1326(d). We review the district 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 13 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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court’s order de novo. United States v. Gonzalez-Flores, 804 F.3d 920, 926 (9th

Cir. 2015). Because the district court’s order relied on case law that has since been 

abrogated by intervening cases from our court and the Supreme Court, we vacate 

the district court’s order and remand.

1. Cardiel-Ruiz argues that he may satisfy the two procedural 

requirements reflected in § 1326(d)(1) and (2) because the immigration judge’s 

failure to properly advise him of his eligibility for voluntary departure rendered 

further administrative appeal and judicial review “unavailable.” This argument is 

foreclosed by United States v. Palomar-Santiago, 593 U.S. 321 (2021), and United 

States v. Portillo-Gonzalez, 80 F.4th 910 (9th Cir. 2023). As the Supreme Court 

recognized in Palomar-Santiago, “[t]he immigration judge’s error on the merits 

does not excuse the noncitizen’s failure to comply with a mandatory exhaustion 

requirement if further administrative review, and then judicial review if necessary, 

could fix that very error.” 593 U.S. at 328. We applied this rule in PortilloGonzalez which, like the present case, involved substantive errors by the 

immigration judge concerning the petitioner’s eligibility for voluntary departure. 

In holding that Portillo-Gonzalez failed to satisfy § 1326(d)(1) and (2), we 

observed that “nothing about that substantive error ‘can alone render further review 

of [that] adverse decision unavailable.’” Portillo-Gonzalez, 80 F.4th at 918 

(quoting Palomar-Santiago, 593 U.S. at 328).
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2. Cardiel-Ruiz further argues that direct appeal was rendered 

unavailable by the immigration judge’s misleading statement that the immigration 

judge was not making “any decision about granting or denying” voluntary 

departure. We have recently held that the Ross v. Blake, 578 U.S. 632 (2016),

framework applies in § 1326 cases. United States v. Valdivias-Soto, No. 20-10415, 

slip op. at 29 (9th Cir. Aug. 9, 2024). So while Cardiel-Ruiz could satisfy 

§ 1326(d)(1) and (2) by showing that the immigration judge made “misleading 

statements as to the procedural steps for pursuing administrative remedies,” 

Portillo-Gonzalez, 80 F.4th at 920, we find no such statements in this record.

Here, the immigration judge apprised Cardiel-Ruiz of his right to appeal and asked 

Cardiel-Ruiz whether he wished to appeal the “decision.” Although the “decision” 

may have been ambiguous, an appeal of the immigration judge’s ultimate removal 

order would have permitted Cardiel-Ruiz to argue that the immigration judge erred 

by failing to consider his request for voluntary departure.

In sum, Cardiel-Ruiz cannot satisfy § 1326(d)(1) or (d)(2) based on the 

immigration judge’s substantive mistakes during his underlying removal 

proceedings.1

VACATED and REMANDED for further proceedings consistent with 

1 The United States of America’s motion to file its supplemental brief one day late, 

Dkt. No. 54, is granted.
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this disposition.