In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-2521

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDMUNDO MANRIQUEZ-ALVARADO,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 18-20045-001 — James E. Shadid, Judge.

____________________

ARGUED MARCH 3, 2020 — DECIDED MARCH 24, 2020

____________________

Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

EASTERBROOK, Circuit Judge. Edmundo ManriquezAlvarado, a citizen of Mexico, has entered the United States 

repeatedly by stealth. How often we do not know, but the 

record shows that he was ordered removed in 2008, 2010, 

2012, 2014, and 2017, each time following a criminal conviction. (His record includes convictions for burglary, domestic 

violence, trafficking illegal drugs, and unauthorized 

reentry.) The gaps between the removal orders stem from 
2 No. 19-2521

the time it takes to catch him, plus time he spends in prison

following his convictions.

Manriquez-Alvarado was found in the United States yet 

again in 2018 and indicted for illegal reentry. 8 U.S.C. 

§1326(a), (b)(2). His drug crime is defined by 8 U.S.C. 

§1101(a)(43)(B) as an “aggravated felony”. This increases the

maximum punishment for unauthorized reentry. After the 

district court denied his motion to dismiss the indictment, 

Manriquez-Alvarado pleaded guilty and was sentenced to 39 

months’ imprisonment. The plea reserved the right to contest on appeal the denial of the motion to dismiss.

All of the convictions for reentry rest on the 2008 removal 

order. Manriquez-Alvarado contends that this order is invalid because immigration officials never had “jurisdiction” to 

remove him. That’s because a document captioned “Notice 

to Appear” that was served on him in February 2008 did not 

include a date for a hearing. Pereira v. Sessions, 138 S. Ct. 2105 

(2018), holds that a document missing this information does 

not satisfy the statutory requirements, 8 U.S.C. §1229(a)(1),

for a Notice to Appear. We held in Ortiz-Santiago v. Barr, 924 

F.3d 956 (7th Cir. 2019), that Pereira identifies a claimsprocessing doctrine rather than a rule limiting the jurisdiction of immigration officials. Manriquez-Alvarado wants us 

to overrule Ortiz-Santiago, but that’s not in the cards. No 

other circuit has disagreed with its holding, and its reasoning is powerful.

That’s not all. Manriquez-Alvarado supposes that, if Pereira establishes a jurisdictional rule, then any earlier removal decision is void. Established law is otherwise. Lawyers 

have it drilled into them that jurisdictional deficiencies may 

be raised at any time. What this means, however, is any time 
No. 19-2521 3

during the litigation to which the problem applies. Suppose 

a suit is filed in which the plaintiff alleges the parties’ “residence” rather than their “citizenship.” That is a jurisdictional 

defect. E.g., Gilbert v. David, 235 U.S. 561 (1915); Steigleder v. 

McQuesten, 198 U.S. 141 (1905); Denny v. Pironi, 141 U.S. 121 

(1891); Robertson v. Cease, 97 U.S. 646 (1878). But if the problem escapes notice, and the case goes to judgment on the 

merits, the result is conclusive; the decision cannot be collaterally akacked on the ground that the jurisdictional allegations were defective. See, e.g., Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 152–53 (2009). This principle is equally applicable to administrative decisions—after all, agencies operate outside Article III, which is the source of judges’ punctiliousness about their own jurisdiction—which means that 

the 2008 removal order could not be set aside even if we 

were to overrule Ortiz-Santiago.

Older removal orders are potentially open to collateral 

akack, but not because a defect in a long-closed proceeding 

could be called “jurisdictional.” To mount a belated challenge the alien must show:

(1) the alien exhausted any administrative remedies that may 

have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued 

improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. §1326(d). This statute requires the alien to show all 

three; one or two won’t suffice. See United States v. Hernandez-Perdomo, 948 F.3d 807, 810–11 (7th Cir. 2020); United 

States v. Watkins, 880 F.3d 1221, 1224 (11th Cir. 2018); United 

States v. Estrada, 876 F.3d 885, 887 (6th Cir. 2017); United 
4 No. 19-2521

States v. Lopez-Collazo, 824 F.3d 453, 458 (4th Cir. 2016); United States v. Soto-Mateo, 799 F.3d 117, 120 (1st Cir. 2015); United States v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015); 

United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th Cir. 

2014); United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004); 

United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir. 

2002).

The removal proceedings in 2008 charged ManriquezAlvarado with being in the United States without authorization, having commiked a crime of moral turpitude that cut 

off avenues for discretionary relief. He could have contested 

those charges, taking his arguments to the Board of Immigration Appeals (§1326(d)(1)) and the court of appeals 

(§1326(d)(2)). Likewise he could have argued that the Notice 

to Appear did not satisfy the statute, pursuing both administrative and judicial relief. He did none of those things. Instead he stipulated to his removal and waived his rights to a 

hearing, to administrative review, and to judicial review.

The agency did not issue a new notice with a hearing date, 

because Manriquez-Alvarado did not want a hearing. After 

signing this waiver he was removed.

Now he tells us that it would have been futile to pursue 

administrative and judicial remedies in 2008. In a sense this 

is irrefutable: once he waived his procedural rights and 

agreed to be removed, of course it would have been futile to 

continue resisting. But the remedies were nonetheless 

“available” to Manriquez-Alvarado, had he decided to stand 

on his rights. That Manriquez-Alvarado waived those rights 

makes the 2008 order less amenable to collateral akack and 

not more, as he supposes.
No. 19-2521 5

Manriquez-Alvarado asserts that seeking review would 

have been futile in a second sense: Pereira was not decided 

until 2018, so he could not have relied on it in 2008. Once 

again this is irrefutable, but Pereira interpreted a statute that 

long predates 2008. Manriquez-Alvarado was free to rely on 

that statute. If the agency and court ruled against him, the 

relevant decision by the Supreme Court might have carried 

his name rather than Pereira’s. Most likely, however, if he 

had complained that the Notice omiked a hearing date, the 

agency would have issued another with the blank filled in. 

That would have made an appeal “futile” in the sense that it 

would have done nothing but postpone the inevitable (Manriquez-Alvarado does not contend that he had any substantive defense to removal), but it would have protected all of 

his procedural entitlements.

The statute does not ask whether administrative and judicial remedies would have been futile. It asks whether they 

were available. The best way to determine whether a remedy 

works is to use it and see what happens, rather than to bypass it and speculate years later about what might have 

happened. One might say that a remedy is not “available” if 

it is sure to be ukerly useless, but as we’ve explained Manriquez-Alvarado could have used his remedies to seek a Notice to Appear with a hearing date, and if one were not forthcoming to present his arguments to the Board, to this court, 

and to the Supreme Court. That opportunity is all the statute 

requires to make a remedy “available”; the condition is satisfied whether or not the alien would have prevailed. See 

Bousley v. United States, 523 U.S. 614, 622–23 (1998) (adverse 

precedent in the local court of appeals does not excuse failure to present an argument unless the claim was so novel 

that counsel could not have imagined it). Cf. Porter v. Nussle, 
6 No. 19-2521

534 U.S. 516 (2002) (an administrative remedy is “available” 

for the purpose of a different exhaustion rule if it offers the 

prospect of any relief, even if not the remedy the applicant 

wants).

Much the same may be said about Manriquez-Alvarado’s 

contention that the removal order was “fundamentally unfair”. He asserts that because he waived his rights without 

knowing about Pereira, which lay a decade in the future, the 

waiver was necessarily involuntary. To repeat: Pereira is a 

statutory decision, and Manriquez-Alvarado could have 

consulted the statute and invoked its benefit, small as that 

was. (Recall that the only effect of securing a complete Notice to Appear would have been a slight delay in removal.) 

We held in Ortiz-Santiago, 924 F.3d at 964–65, that the statute 

creates a procedural right that is lost if not asserted or the 

failure excused, and we applied that rule to an alien whose 

removal order predated Pereira. If that did not produce a 

fundamentally unfair outcome for Ortiz-Santiago, it does not 

produce one for Manriquez-Alvarado either. His removal 

was the result of his criminal conduct, coupled with the fact 

that he lacked permission to enter the United States at all. He 

has never asserted a legitimate claim of entitlement to be in 

the United States. It is not unfair, fundamentally or otherwise, to order such an alien to depart.

AFFIRMED