UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JOSE ALFREDO FLORES, a/k/a Jose 

Alfredo Flores-Quezada, 

 Defendant - Appellant. 

No. 19-1446 

(D.C. No. 1:18-CR-00150-MSK-GPG-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

 Jose Flores appeals his conviction for illegal re-entry in violation of 8 U.S.C. 

§§ 1326(a) and (b)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I 

 Flores, a native and citizen of Mexico, became a lawful permanent resident of the 

United States in 1995. In 2009, he was convicted of felony vehicular eluding in violation 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 2, 2020

Christopher M. Wolpert 

Clerk of Court
2 

of C.R.S. § 18-9-116.5. In 2012, an immigration judge ordered Flores removed, 

concluding that vehicular eluding was an aggravated felony under 8 U.S.C. 

§§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). The removal order indicates that his appeal 

was due on April 27, 2012. Flores did not timely appeal.

 After returning to the United States without reapplying for admission, Flores was 

apprehended and charged with illegal re-entry after a prior deportation. At that point, he 

appealed his 2012 removal to the Board of Immigration Appeals (“BIA”), arguing that 

his deportation was invalid because vehicular eluding is not an aggravated felony under 

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The BIA dismissed his appeal as untimely.

Flores filed a motion to dismiss the indictment in this case, arguing that because 

vehicular eluding is not an aggravated felony under Dimaya, his deportation cannot be 

the predicate for an illegal re-entry conviction. A magistrate judge recommended the 

denial of his motion to dismiss because by failing to file a timely appeal of his 2012 

removal order, Flores failed to exhaust administrative remedies under § 1326(d)(1). Over 

Flores’ objections, the district court adopted the magistrate’s recommendation. Flores 

pled guilty but retained the right to appeal the denial of his motion. The court sentenced 

him to a term of 22 months’ imprisonment and three years of supervised release. Flores 

appealed. 

II 

 Flores raises a collateral attack to his prior deportation order. We review the legal 

sufficiency of a prior removal order de novo. See United States v. Almanza-Vigil, 912 

F.3d 1310, 1316 (10th Cir. 2019). Under § 1326(d), a defendant who collaterally attacks 
3 

a prior deportation order during criminal proceedings must demonstrate “(1) that he 

exhausted all administrative remedies available to contest the previous removal order, 

(2) that the previous removal proceedings deprived him of the opportunity to seek 

judicial review, and (3) that the previous order’s entry was fundamentally unfair.” Id. 

(citing § 1326(d)). This appeal focuses on the first prong: the district court concluded 

Flores had not exhausted administrative remedies because he failed to appeal the 2012 

removal order. 

A noncitizen “who knowingly waives the right to appeal an immigration judge’s 

order of deportation fails to exhaust administrative remedies under § 1326(d)(1).” United 

States v. Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005). By not filing a timely 

appeal to the immigration judge’s order of deportation, Flores waived his right to appeal. 

See United States v. Arevalo-Tavares, 210 F.3d 1198, 1201 (10th Cir. 2000) (“Defendant 

waived his right to appeal by failing to file a timely appeal . . . .”). Flores raises no 

argument that this failure was not knowing; we therefore conclude that he failed to 

exhaust administrative remedies. See Chavez-Alonso, 431 F.3d at 728. 

 On appeal, Flores argues that he exhausted “his only viable administrative 

remedy” by filing a notice of appeal after Dimaya. We disagree. Flores could have filed 

a timely appeal, but he failed to do so. Instead, his notice of appeal was filed 

approximately six years after the time for him to appeal expired. Filing an untimely 

appeal does not remedy the failure to file a timely appeal. See Arevalo-Tavares, 210 F.3d 

at 1201; cf. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (“Proper exhaustion demands 

compliance with an agency’s deadlines and other critical procedural rules because no 
4 

adjudicative system can function effectively without imposing some orderly structure on 

the course of its proceedings.”). 

Flores argues that it would have been futile for him to appeal the 2012 removal 

order because vehicular eluding was an aggravated felony under binding precedent at the 

time. But futility does not excuse a failure to exhaust when exhaustion is statutorily 

required. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[W]e will not read 

futility or other exceptions into statutory exhaustion requirements where Congress has 

provided otherwise.”); Gilmore v. Weatherford, 694 F.3d 1160, 1169 (10th Cir. 2012) 

(“[T]his court has explicitly rejected the proposition that it is futile to lodge an objection 

before an administrative body simply because the body has precedent which contradicts 

the party’s position.” (quotation omitted)). Litigants are permitted to make good-faith 

arguments for the extension, reversal, or modification of existing law—precisely the 

kinds of arguments that Flores makes in this appeal.1

 See Fed. R. Civ. P. 11(b)(2). 

Moreover, Flores has not established that vehicular eluding was an aggravated 

felony under our binding precedent at the time of his removal in 2012. He cites only an 

unpublished, non-binding decision, United States v. Atkins, 379 F. App’x 762 (10th Cir. 

2010), in support of that proposition. Atkins addressed whether the Colorado crime of 

1

 Flores also cites United States v. Lopez-Urgel, 351 F. Supp. 3d 978, 990-91 

(W.D. Tex. 2018), in which a district court concluded that a defendant was not 

required to show administrative exhaustion when his arguments would have 

contradicted the law at that time. Id. at 990-91. This directly contravenes ChavezAlonso, which we are bound to follow. See United States v. Lira-Ramirez, 951 F.3d 

1258, 1260 (10th Cir. 2020) (“We must generally follow our precedents absent en 

banc consideration.”). 
5 

vehicular eluding constituted a crime of violence under a similar clause in the Sentencing 

Guidelines. Id. at 764. It did not address whether vehicular eluding is an aggravated 

felony under §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(F). Flores has not demonstrated that 

a timely appeal of his 2012 removal order would have been futile. 

Relying on United States v. Johnson, 391 F.3d 67 (2d Cir. 2004), Flores also 

argues that any failure to exhaust is excusable because the immigration judge at his 

removal proceeding in 2012 told him that vehicular eluding was an aggravated felony. 

He contends this was “constitutionally relevant misinformation.” In Johnson, the Second 

Circuit held that “an alien’s failure to meet the requirement of § 1326(d)(1) would be 

excusable where the alien waived the right to a BIA appeal and the waiver was premised 

on misleading information provided by the [immigration judge] regarding the alien’s 

eligibility for discretionary relief.” Id. at 75. But the immigration judge informed Flores 

of his right to appeal. See id. at 75-76 (“[T]he fact that Johnson was informed of his right 

to appeal weighs heavily against a finding that his waiver was not intelligent and 

considered.”). Flores does not assert that he did not understand his right to appeal, 

merely that he did not believe an appeal would be successful. The immigration judge’s 

statement that vehicular eluding was an aggravated felony does not excuse Flores’ failure 

to file a timely appeal. 

Finally, Flores urges us to reconsider Chavez-Alonso in light of the Ninth 

Circuit’s rule that the exhaustion requirement is excused when an intervening change in 
6 

the law causes a predicate conviction no longer to be an aggravated felony.2

 But “[w]e 

must generally follow our precedents absent en banc consideration.” Lira-Ramirez, 951 

F.3d at 1260. Although “[a]n exception exists for intervening changes in our 

precedents,” id. at 1261, Flores does not point to any such changes in this case. ChavezAlonso is binding. 

We conclude that because Flores failed to exhaust his administrative remedies in 

connection with his 2012 removal, the district court correctly rejected his collateral 

attack. 

III 

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

2

 Flores asserts that the Ninth Circuit set forth this rule in United States v. 

Camacho-Lopez, 450 F.3d 928 (9th Cir. 2006). In that case, the government 

conceded this argument, so the court did not directly address it. Id. at 930. But the 

Ninth Circuit has since squarely held that an intervening change in the law excuses 

the exhaustion requirement for a defendant collaterally attacking a prior removal 

order. See, e.g., United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017).