In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1964 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ELEAZAR HERNANDEZ-PERDOMO, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 18-cr-744 — Elaine E. Bucklo, Judge. 

____________________ 

No. 19-2113 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ISMAEL RANGEL-RODRIGUEZ

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 18-cr-581 – Matthew F. Kennelly, Judge. 

____________________ 
2 Nos. 19-1964 & 19-2113 

ARGUED DECEMBER 6, 2019 — DECIDED JANUARY 23, 2020 

____________________ 

Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges. 

ST. EVE, Circuit Judge. Ismael Rangel-Rodriguez and 

Eleazar Hernandez-Perdomo are both Mexican citizens who 

have never been lawfully admitted to the United States. Several years ago, immigration authorities served both of them 

with Notices to Appear (“NTA”) for removal proceedings. 

These NTAs—like many—were defective because they did 

not list a date or time for an initial removal hearing. For different reasons, Rangel and Hernandez were not present at 

their respective removal hearings, and the immigration 

judges ordered them removed in absentia. United States Immigration and Customs Enforcement (“ICE”) eventually enforced these orders and removed both men to Mexico, but 

they each illegally returned to the United States and were indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). In 

light of the Supreme Court’s decision in Pereira v. Sessions, 138 

S. Ct. 2105 (2018), they moved to dismiss their respective indictments by collaterally attacking their underlying removal 

orders under 8 U.S.C. § 1326(d) based on the defective NTAs. 

The district courts denied their motions, and each defendant 

entered a conditional plea of guilty to the illegal reentry 

charge and reserved his right to appeal the denial of the motion to dismiss the indictment. We have consolidated the cases 

for decision. 

We conclude that Rangel and Hernandez have failed to 

demonstrate that they satisfy any of the requirements set out 

in § 1326(d). We therefore affirm the judgments. 
Nos. 19-1964 & 19-2113 3

I. Background 

A. Ismael Rangel-Rodriguez 

In November 2010, police arrested Rangel for driving on a 

suspended license and several other offenses. The government served him that same day with an NTA announcing removal proceedings. This NTA ordered Rangel to appear before an immigration judge on “a date to be set at a time to be 

set.” Rangel ultimately learned the date and time of his upcoming hearings, though, because he appeared at three hearings via video conference in late winter and early spring of 

2011, while he was in ICE custody. Around March of 2011, 

Rangel was released on bond. In January of 2012, however, 

Rangel was arrested for driving under the influence and taken 

into custody. His next hearing took place on February 22, 

2012. Because Rangel remained in state custody, he did not 

attend this hearing and the immigration judge entered an order of removal in absentia. The record does not reveal whether 

Rangel ever knew of this particular hearing date. 

On September 5, 2013, following a conviction on his DUI 

charge and a year in state prison, Rangel was released to ICE 

custody. The next day, an ICE officer wrote in Rangel’s alienregistration file that Rangel did not wish to reopen his case. 

Although the alien-registration file entry states that Rangel received a “free legal aid list,” the record does not reveal the 

extent to which Rangel was informed of his right to reopen. 

ICE removed Rangel from the United States on September 24, 

2013, and Rangel reentered two days later. On October 2, ICE 

reinstated Rangel’s removal order and removed him from the 

United States a second time on March 29, 2014. 
4 Nos. 19-1964 & 19-2113 

At some point following his second removal, Rangel reentered the United States a third time. Chicago Police arrested 

him in August of 2018, and a grand jury then indicted him on 

one count of illegal reentry under 8 U.S.C. § 1326(a). Rangel 

filed a motion to dismiss the indictment, which the district 

court denied. Following Rangel’s entry of a conditional plea 

of guilty, the district court sentenced Rangel to 23 months’ imprisonment. 

B. Eleazar Hernandez-Perdomo 

Hernandez tells a similar story. In 2010, ICE took him into 

custody and personally served him with an NTA that, like 

Rangel’s, omitted the date and time of his first hearing before 

an immigration judge. This NTA correctly reflected Hernandez’s address at that time—on Sheridan Road in Highwood, 

Illinois. 

Later that same day, Hernandez was released from ICE 

custody on his own recognizance. His Order of Release directed him to report in person to an immigration officer on 

September 7, 2010. The Order of Release further instructed: 

“You must not change your place of residence without first 

securing written permission from the immigration officer 

listed above.” 

On August 6, 2010, the Executive Office for Immigration 

Review (“EOIR”) sent to Hernandez’s Sheridan Road address 

a Notice of Hearing in Removal Proceedings to remedy the 

lack of date and time information in the initial NTA. This Notice set his hearing for January 3, 2012. Hernandez, however, 

never received this Notice because he had moved to a new 

apartment. Consequently, the Notice was returned to EOIR as 

undeliverable. Hernandez asserts that, on September 7, 2010, 
Nos. 19-1964 & 19-2113 5

he reported to the immigration officer as required, and at that 

time he completed and returned to the officer a change-of-address form identifying his new address on Onwentsia Avenue 

in Highland Park, Illinois. 

On January 27, 2011, the EOIR sent Hernandez another 

Notice of Hearing, this one moving up proceedings by ten 

months, to March 2, 2011. Despite Hernandez’s claimed submission of his change-of-address form, the EOIR sent this Notice of Hearing to his outdated, Sheridan Road address. As 

with the prior Notice, it was returned as undeliverable. 

Because he was unaware of the March 2 hearing, Hernandez did not appear. The immigration judge conducted the removal hearing in absentia and ordered him removed. Three 

months later, ICE agents arrested Hernandez at his Onwentsia address. ICE removed him eight days after his arrest. 

As with Rangel, Hernandez’s alien-registration file entry 

states that Hernandez received a “free legal aid list,” but the 

record does not reveal the extent to which Hernandez was informed of his right to reopen. Unlike in Rangel’s case, the alien-registration file does not comment on Hernandez’s desire, 

or lack thereof, to reopen the proceedings against him. 

In 2018, Hernandez was transferred back into ICE custody 

after being identified during a traffic stop. A grand jury indicted him on one count of illegal reentry. Like Rangel, Hernandez filed a motion to dismiss the indictment, which the 

district court denied. Hernandez entered a conditional plea of 

guilty, and the district court sentenced Hernandez to time 

served plus one year of supervised release. 
6 Nos. 19-1964 & 19-2113 

II. Discussion 

We review de novo a district court’s denial of a defendant’s motion to dismiss an indictment. United States v. AritaCampos, 607 F.3d 487, 491 (7th Cir. 2010). As Rangel’s and Hernandez’s appeals raise identical legal issues challenging the 

district courts’ decisions to deny their motions to dismiss, we 

analyze the arguments they submit together. 

8 U.S.C. § 1326 makes it a crime for a removed noncitizen 

to reenter, or attempt to reenter, the United States without the 

consent of the Attorney General. In United States v. MendozaLopez, 481 U.S. 828 (1987), the Supreme Court held that a defendant charged under this statute has a due process right to 

challenge the underlying order of removal. In 1996, Congress 

amended the statute to codify the holding of Mendoza-Lopez

by adding subsection (d), which imposes three requirements 

on an alien seeking to challenge the validity of his or her underlying removal order. The alien must have “exhausted any 

administrative remedies that may have been available to seek 

relief against the order,” the removal proceedings must have 

“improperly deprived the alien of the opportunity for judicial 

review,” and the entry of the removal order must be “fundamentally unfair.” 8 U.S.C. § 1326(d)(1)–(3). The alien bears the 

burden of proving the underlying removal order was defective. United States v. Baptist, 759 F.3d 690, 695 (7th Cir. 2014). 

Although we have never expressly stated that an alien must 

satisfy all three elements of § 1326(d) to collaterally attack his 

or her removal order, we have implied that this is so. United 

States v. Alegria-Saldana, 750 F.3d 638, 641 (7th Cir. 2014). We 

need not decide this issue today, though, because Rangel and 

Hernandez have failed to satisfy any of the three elements.
Nos. 19-1964 & 19-2113 7

Rangel and Hernandez base their challenges on the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 

(2018). The Pereira Court addressed the “narrow question” 

whether an NTA that omits the time or place of an alien’s removal hearing triggers the stop-time rule of the Illegal Immigration Reform and Immigrant Responsibility Act, thus terminating the period of continuous physical presence in the 

United States necessary for an alien to be eligible for discretionary cancellation of removal. Id. at 2110. The Court ruled 

that it did not because the missing information prevents an 

NTA from satisfying the statutory definition in 8 U.S.C. 

§ 1229(a). Id. at 2113–14. Like many other litigants, Rangel and 

Hernandez both argued at the district court that a deficient 

NTA deprived an immigration court of jurisdiction, and thus 

their removal enters were void and could not support their 

respective convictions for illegal reentry. We rejected this jurisdictional argument, however, in Ortiz-Santiago v. Barr, 924 

F.3d 956 (7th Cir. 2019), where we held that an NTA’s failure 

to comply with § 1229(a) was a claim-processing rule subject 

to waiver and forfeiture. Id. at 963. Defendants thus abandon 

their jurisdictional arguments on appeal. Instead, they now 

argue that, because they received deficient NTAs, they meet 

the statutory and constitutional requirements for a collateral 

attack of their prior orders of removal under 8 U.S.C. 

§ 1326(d). 

A. Exhaustion & Judicial Review 

Rangel and Hernandez contend they have exhausted their 

available administrative remedies, or should be excused from 

this requirement, because their challenges would have been 

futile at the time of their removal proceedings, as the Board of 

Immigration Appeals and every court to consider the 
8 Nos. 19-1964 & 19-2113 

question had previously condoned the “two-step procedure” 

to remedy deficient NTAs. See, e.g., Dababneh v. Gonzales, 471 

F.3d 806, 809–10 (7th Cir. 2006) (allowing this procedure).

Even assuming that a futility exception applies to immigration exhaustion requirements, though, Pereira did not change 

the administrative remedies available to Rangel and Hernandez after the immigration judges ordered them removed in 

absentia. The solution for both defendants was the same: they 

both could have moved to reopen their removal proceedings 

as soon as they became aware of their respective removal orders, likely when they were taken into ICE custody for physical removal. Neither did so. 

We have held that a motion to reopen is an “available” administrative remedy for purposes of § 1326(d)(1). Arita-Campos, 607 F.3d at 492. Ordinarily, an alien must file a motion to 

reopen within ninety days of the entry of a final decision. 8 

U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(1). But if the underlying order was entered in absentia because the alien was 

in custody at the time of his hearing—as in Rangel’s case—or 

he did not receive notice of the proceedings—as in Hernandez’s—then the alien may instead move to reopen that removal order “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii); AritaCampos, 607 F.3d at 492. Likewise, if Hernandez and Rangel 

had filed motions to reopen, they could have obtained judicial 

review of the denial of those motions or of the final removal 

orders entered after a proper hearing. They were thus not 

“improperly deprived” of judicial review, 8 U.S.C. 

§ 1326(d)(2), they just never sought it. See United States v. Larios-Buentello, 807 F.3d 176, 178 (7th Cir. 2015). 

Rangel and Hernandez argue that the government failed 

to notify them of the option of a motion to reopen, but “aliens 
Nos. 19-1964 & 19-2113 9

are presumed capable of researching generally available remedies.” Alegria-Saldana, 750 F.3d at 641. They attempt to distinguish Alegria-Saldana because, there, immigration authorities undisputedly informed the alien of his right to appeal. See

id. One cannot read our decision in Alegria-Saldana as so limited: we also explained the alien had not exhausted his opportunity to file a motion to reopen or to seek habeas relief, with 

no indication that authorities ever informed the alien of these 

remedies. Id. Defendants also try to cabin the reach of our ruling in Alegria-Saldana by arguing that the immigration judge 

may permissibly forgo providing guidance only about the 

availability of a separate habeas suit. This attempt, though, 

does not persuade us. Surely, a lay person would have a far 

easier time understanding the explicit statutory provision for 

reopening an in absentia order through § 1229a(b)(5) than the 

habeas corpus remedy under 28 U.S.C. § 2241 and the common law, INS v. St. Cyr, 533 U.S. 289 (2001). Alegria-Saldana 

does not suggest that an immigration judge has a duty to inform an alien of direct remedies but not more obscure, collateral ones. 

Rangel and Hernandez also contend this interpretation of 

Alegria-Saldana contradicts rulings of the Second and Third 

Circuits, which have held that the government violates the 

Due Process Clause by misleading an alien into believing he 

has no opportunity for judicial review. See United States v. 

Charleswell, 456 F.3d 347 (3d Cir. 2006); United States v. Lopez, 

445 F.3d 90 (2d Cir. 2006) (Sotomayor, J.). As neither defendant presented this argument to the district court or in their 

opening briefs, they have both waived it. See United States v. 

Dehaan, 896 F.3d 798, 808 n.4 (7th Cir. 2018). 
10 Nos. 19-1964 & 19-2113 

Even if it were not waived, though, these cases are inapposite to the circumstances presented here. In Charleswell and 

Lopez, the government did not merely fail to notify the defendants of their opportunities for judicial review, but rather 

presented affirmative, misleading (albeit technically correct) 

statements. In Charleswell, a reinstatement order read, “You 

may contest this determination by making a written or oral 

statement to an immigration officer. You do not have a right 

to a hearing before an immigration judge.” 456 F.3d at 356. An 

alien does, however, have a statutory right to direct judicial 

review in the appropriate court of appeals pursuant to 8 

U.S.C. § 1252(a)(5). Id. at 357. Similarly, in Lopez, the government told an alien he was not eligible for review by the Board 

of Immigration Appeals under § 212(c) of the Immigration 

and Naturalization Act, even though that relief was still available through a petition for habeas corpus. 445 F.3d at 92–93. 

In both these cases, the government informed aliens that certain relief was unavailable, when in fact is was available 

through a different avenue. These statements excluding forms 

of relief, the courts reasoned, mislead an alien to believe that 

he has no opportunity for judicial review. Charleswell, 456 F.3d 

at 357; Lopez, 445 F.3d at 99–100. Indeed, such “affirmative 

misstatements” are more problematic than omissions because 

they “function[] as a deterrent to seeking relief.” Charleswell, 

456 F.3d at 357 (quoting Lopez, 445 F.3d at 99). 

Rangel and Hernandez argue that their NTAs misled them 

by saying they could seek review “at the conclusion of [their] 

hearing[s],” without also listing other available options for relief, such as a motion to reopen. Thus, although the statement 

on their NTAs was factually accurate, the defendants argue 

that they were misled to believe that they could no longer contest their removal orders because they were not present at 
Nos. 19-1964 & 19-2113 11

their hearings and missed their opportunity. The NTAs, 

though, did not list any restrictions on an alien’s access to relief: they merely failed to state all of the possible options. Neither the Second nor Third Circuit have found the lack of full 

disclosure sufficient to collaterally attack a removal order, see 

Charleswell, 456 F.3d at 355–56 (reserving question); Lopez, 445 

F.3d at 96 (rejecting argument), and therefore our interpretation of Alegria-Saldana is not inconsistent. 

The defendants also argue that their time in ICE custody 

was so brief—Rangel spent 19 days there after the entry of his 

removal order, and Hernandez, only 8—that filing a motion 

to reopen was not feasible. True, in Arita-Campos, the Court 

deemed 39 days in custody, a period significantly longer than 

the time either defendant spent in this case, sufficient time to 

file a motion to reopen. 607 F.3d at 492. Other circuits, though, 

have held that the short time the defendants spent was 

enough. See United States v. Hinojosa-Perez, 206 F.3d 832, 836 

(9th Cir. 2000) (deeming 8 days sufficient time to file a motion 

to reopen). 

In any event, the number of days in custody is irrelevant 

because an alien may file a motion to reopen “at any time.” 8 

U.S.C. § 1229a(b)(5)(C)(ii). The parties dispute how far that 

language goes. The government argues that the language “at 

any time” in § 1229a(b)(5)(C)(ii) means what it says—“at any 

time.” Under that literal interpretation, the government argues that Rangel and Hernandez could have filed a motion on 

the day of oral argument. Defendants, on the other hand, argue that they were permitted to file their motions to reopen 

only until their orders of removal were reinstated, citing to 8 

U.S.C. § 1231(a)(5). We need not resolve the precise time when 

a motion to reopen becomes unavailable, however, because 
12 Nos. 19-1964 & 19-2113 

our case law makes clear that Rangel and Hernandez may 

have moved to reopen at least until the time they reentered 

the country, including while they were in Mexico after their 

removals. See Cordova-Soto v. Holder, 732 F.3d 789, 794–95 (7th 

Cir. 2013). Rangel and Hernandez thus had a sufficient 

amount of time to file a motion to reopen, and the fact that 

they both were only in ICE custody for a brief time has no 

bearing on whether the motion to reopen was available to 

them. 

B. Fundamental Unfairness 

Rangel and Hernandez argue that their removal proceedings were fundamentally unfair for purposes of 8 U.S.C. 

§ 1326(d)(3) because of their deficient NTAs. To establish fundamental unfairness, we have required a defendant to show 

the removal proceedings (1) violated the alien’s due process 

rights, and (2) caused the alien to suffer prejudice. Arita-Campos, 607 F.3d at 493. To satisfy both prongs of this analysis, an 

alien must demonstrate that he or she was entitled to non-discretionary relief from removal. See id. We have held that aliens 

have no liberty interest in discretionary relief, and there can 

be no prejudice unless “judicial review ‘would have yielded 

him relief from deportation.’” Id. (quoting United States v. De 

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

Defendants assert that, under this court’s decision in 

Ortiz-Santiago, the immigration judge would have been obligated to quash their NTAs, and this qualifies as mandatory 

relief from removal. In Ortiz-Santiago, we did recognize the 

commonly-utilized “two-step procedure” of sending a deficient NTA and later remedying it “may be grounds for dismissal of the case.” Ortiz-Santiago, 924 F.3d at 962–63. We also 

said, though, that this is a “curable lapse.” Id. at 965. “If Ortiz-
Nos. 19-1964 & 19-2113 13

Santiago had raised a prompt objection to the Notice .... [a] 

new, compliant Notice could have issued, and the case could 

have proceeded.” Id. Catching the errors in the deficient 

NTAs would not have led to non-discretionary relief from removal in either Hernandez’s or Rangel’s respective cases. Rather, if Hernandez or Rodriguez were to have alerted the immigration court of the NTA’s omissions, ICE could have proceeded with removal by simply serving a new, compliant 

NTA. As both of the defendants have failed to identify any 

other non-discretionary relief for which they would have 

been eligible had they received a compliant NTA,1 they have 

failed to demonstrate that the removal proceedings were fundamentally unfair. 

III. Conclusion 

For the foregoing reasons, we AFFIRM the district courts’ 

judgments. 

 1 Hernandez offers, in a footnote, that he might have been eligible for 

voluntary departure, but rightly recognizes that denial of this discretionary relief is not enough to prove that removal proceedings were “fundamentally unfair” under § 1326(d)(3). See Arita-Campos, 607 F.3d at 493.