In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1607

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICOLAS ALEGRIA-SALDANA,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Western Division.

No. 11 CR 50065-1 — Frederick J. Kapala, Judge.

ARGUED SEPTEMBER 16, 2013 — DECIDED APRIL 17, 2014

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Nicolas Alegria-Saldana, a citizen of

Mexico, challenges the district court’s denial of his motion to

dismiss his indictment for illegal reentry after removal. See 8

U.S.C. § 1326(a), (b)(1). He entered a conditional guilty plea

but maintains that the charges should be dismissed based on

alleged due-process violations in the underlying removal

order. Because Alegria-Saldana has not met the statutory
2 No. 13-1607

requirements to collaterally attack his removal order, 8 U.S.C.

§ 1326(d), we affirm the district court’s judgment. 

Alegria-Saldana entered the United States at the age of 7,

became a lawful permanent resident at 20, but was charged

with removability at 34—in 2003—by immigration authorities

for committing an aggravated felony, see 8 U.S.C.

§ 1227(a)(2)(A)(ii), and a controlled-substance offense, see id.

§ 1227(a)(2)(B)(i). During removal proceedings, he conceded

that his two convictions for possessing cocaine involved a

controlled substance. But his lawyer argued that mere

possession was not a drug-trafficking crime, and thus not an

aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (defining

“aggravated felony” as “illicit trafficking in a controlled

substance”). The distinction mattered because an aggravated

felony determination would render him statutorily ineligible

for discretionary relief. See 8 U.S.C. § 1229b(a)(3). Based on

precedent from the Board of Immigration Appeals, the

immigration judge ruled that Alegria-Saldana’s conviction for

cocaine possession was an aggravated felony, and denied his

application for cancellation of removal. See 720 ILCS 570/402(c)

(defining cocaine possession as felony under state law);

In re Yanez-Garcia, 23 I & N Dec. 390, 398 (BIA 2002)

(characterizing state felony convictions for drug possession as

aggravated felonies). Alegria-Saldana did not appeal that

decision, and he was removed to Mexico two months later.

The agency precedent on which the immigration judge

relied was overturned three years later when the Supreme

Courtruled that mere possession was not an aggravated felony

under immigration law. Lopez v. Gonzales, 549 U.S. 47, 60

(2006); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th
No. 13-1607 3

Cir. 2006) (Illinois felony conviction for possessing cocaine did

not bar lawful permanent resident from seeking discretionary

relief). By then Alegria-Saldana had reentered the United

States illegally, and he was again convicted in Illinois of

possessing cocaine. State authorities turned him over to

immigration officials after his release in 2011.

Alegria-Saldana was charged with illegal presence in the

United States after removal, see 8 U.S.C. § 1326(a), (b)(1), but he

sought to dismiss the indictment based on alleged deficiencies

in the underlying removal order, see id. § 1326(d). Under

§ 1326(d), a defendant may collaterally attack the removal

order in a criminal proceeding by showing (1) exhaustion of

administrative remedies, (2) unavailability of judicial review

during the removal process, and (3) fundamental unfairness of

the removal order. See id. § 1326(d)(1)–(3).

Alegria-Saldana maintained that he satisfied these three

requirements. He pointed first to his lawyer’s alleged

deficiencies, and explained in an affidavit that he believed his

lawyer would file an appeal. He noted that his lawyer reserved

his right to appeal and pointed out that the immigration judge

discussed his lawyer’s role in the appeal process, stating that

“[y]our lawyer has 30 days to decide if an appeal will be

perfected or not, and you could decide that any time between

the next 30 days.” Second, Alegria-Saldana argued that he

lacked “any understanding or particular knowledge of the

law” and did not have the ability to file an appeal on his own.

Finally, he challenged the fairness of the removal order in light

of the Supreme Court’s later decision in Lopez, 549 U.S. at 60.
4 No. 13-1607

The district court denied Alegria-Saldana’s motion to

dismiss the indictment, finding that he had not met any of the

§ 1326(d) requirements to challenge the underlying removal

order. First, Alegria-Saldana failed to exhaust his

administrative remedies because he neither appealed the

decision nor asked his attorney to do so. To the extent that he

suggested that his immigration lawyer provided ineffective

assistance, the court noted that his lawyer never promised to

file an appeal. Second, Alegria-Saldana did not take advantage

of the form of judicial review available at the time of his

removal proceedings—habeas corpus relief—and he did not

justify why he failed to file a petition other than asserting his

general lack of legal knowledge. And third, he could not show

that the removal order was fundamentally unfair because he

had no due-process right to apply for discretionary relief.

On appeal Alegria-Saldana challenges the district court’s

decision with respect to all three requirements of § 1326(d). We

have not decided whether all three must be met before a

collateral attack can proceed, though we have implied that is

the case. See United States v. Lara-Unzueta, 735 F.3d 954, 961 (7th

Cir. 2013) (declining to decide issue).

As to the first requirement, Alegria-Saldana argues that the

district court erred in ruling that he failed to exhaust his

administrative remedies, given his belief that his immigration

lawyer would file an appeal. He maintains that he was

“entitled to interpret that reservation [of the right to appeal] by

counsel as meaning that his attorney would either follow

through on the perfection of the appeal or advise

[Alegria-Saldana] of his decision not to follow through.”
No. 13-1607 5

But the district court’s finding regarding exhaustion is

correct. Despite being informed of his right to appeal, he did

not file an appeal or ask his lawyer to do so, and thus he failed

to exhaust his available remedies. See United States v.

Roque-Espinoza, 338 F.3d 724, 728–29 (7th Cir. 2003) (alien may

not collaterally attack removal order when “he and his lawyer

were informed of his right to pursue such an [administrative]

appeal” and his lawyer reserved right to appeal); United States

v. Villavicencio-Burruel, 608 F.3d 556, 559–60 (9th Cir. 2010)

(same). Nor did Alegria-Saldana exhaust his available

remedies in the form of a motion to reopen, see 8 U.S.C. §

1229a(c)(7); United States v. Arita-Campos, 607 F.3d 487, 491–92

(7th Cir. 2010), which would have allowed the Board to

consider whether his lawyer was ineffective for not

communicating with him after the removal hearing, see In re

Lozada, 19 I & N Dec. 637, 639 (BIA 1988) (setting out

requirements to bring ineffective-assistance claim in

immigration proceedings); see also United States v. Cerna, 603

F.3d 32, 42 (2d Cir. 2010) (excusing lack of exhaustion when

lawyer promised to file an appeal during removal hearing and

failed to do so).

Second Alegria-Saldana argues generally that the district

court erred in concluding that judicial review was available in

the form of a petition for habeas corpus. He concedes that

judicial review existed “in theory” but asserts that it was

unavailable “as a practical matter” because, between the entry

of his removal order and his actual removal, he had only two

months to research the law or find a new lawyer.

Thedistrict court correctly determined that Alegria-Saldana

did not meet his burden of proving that he was unable to
6 No. 13-1607

petition for judicial relief. See Arita-Campos, 607 F.3d at 493;

United States v. Santiago-Ochoa, 447 F.3d 1015, 1019 (7th Cir.

2006). The court here concluded that he failed to meet this

burden because he offered no explanation other than that he

lacked “any understanding or particular knowledge of the

law.” As the court noted, aliens are presumed capable of

researching generally available remedies, see Bayo v. Napolitano,

593 F.3d 495, 505 (7th Cir. 2010); Dimenski v. INS, 275 F.3d 574,

578 (7th Cir. 2001) (“In immigration law, as in tax law—and

criminal law, too, where knowledge of the law is

presumed—the Constitution permits the government to leave

people to their own research.”) (internal citation omitted), and

Alegria-Saldana offers no other reason to think that two

months was not enough time to file a petition for habeas

corpus, see Arita-Campos, 607 F.3d at 492 (39 days between

arrest and removal was sufficient time for alien to file motion

to reopen).

Finally Alegria-Saldana argues that the district court should

have ruled that his removal order was fundamentally unfair

because the incorrect aggravated-felony determination

deprived him of the opportunity to apply for discretionary

relief. But, as the court noted, failure to consider an alien for

discretionary relief does not violate due process and thus is not

fundamentally unfair. See Arita-Campos, 607 F.3d at 493; United

States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008);

Santiago-Ochoa, 447 F.3d at 1020 (collecting cases from other

circuits). A minority of circuits do recognize a procedural dueprocess right to seek discretionary relief, but even these courts

consider whether the immigration judge erred “under the

governing case law at the time of [removal],” United States v.
No. 13-1607 7

Gomez, 732 F.3d 971, 987 (9th Cir. 2013), and require aliens to

show prejudice in the form of a “reasonable probability” that

they would have received relief, see United States v. Daley, 702

F.3d 96, 101 (2d Cir. 2012). Alegria-Saldana’s removal order

relied on agency precedent, see In re Yanez-Garcia, 23 I & N Dec.

at 398, and he has not attempted to show any likelihood that

the Board of Immigration Appeals—after considering his two

convictions for drunk driving, two convictions for cocaine

possession, anda conviction for domestic battery—would have

exercised its discretion in his favor. See In re Sotelo-Sotelo, 23

I&N Dec. 201, 205–06 (BIA 2001) (discretionary relief not

warranted for lawful permanent resident with U.S.-citizen

child who had smuggled aliens into United States). Though

Alegria-Saldana was unable to seek cancellation of removal,

the Supreme Court’s decision in Lopez did reduce the potential

punishment for his illegal reentry: because his convictions are

no longer aggravated felonies, the statutory maximum was

10 years instead of 20. See 8 U.S.C. § 1326(b)(1)–(2).

AFFIRMED.