### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1964
U NITED S TATES OF A MERICA, Plaintiff-Appellee,

v.

E LEAZAR H ERNANDEZ -P ERDOMO, 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
U NITED S TATES OF A MERICA, Plaintiff-Appellee,

v.

I SMAEL R ANGEL -R ODRIGUEZ 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

A RGUED D ECEMBER 6, 2019

— D ECIDED J ANUARY 23, 2020

____________________

Before R OVNER, B RENNAN , and S T

. E VE , Circuit Judges

. S T

. E VE , Circuit Judge . Ismael Rangel-Rodriguez and Eleazar Hernandez-Perdomo are both Mexican citizens who have never been lawfully admi tt ed to the United States. Several years ago, immigration auth orities 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 aninitial 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, butthey 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 , 138S. Ct. 2105 (2018), they moved to dismiss their respective indictments by collaterally a tt acking their underlying removal orders under 8 U.S.C. § 1326(d) based on the defective NTAs. The district courts denied thei r motions, and each defendant entered a conditional plea of guilty to the illegal reentrycharge 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 a ffi rm 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 o ff enses. 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 da te to be set at a time to beset.” Rangel ultimately learned the date and time of his upcoming hearings, though, because he appeared at three hearings via video conference in la te 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 in fl uence and taken into custody. His next hearing took place on February 22, 2012. Because Rangel remained in state custody, he did not

a tt end this hearing and the immi gration 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 o ffi cer wrote in Rangel’s alienregistration fi le that Rangel did not wish to reopen his case. Although the alien-registration fi le 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 fi led a motion to dismiss the in dictment, which the district court denied. Following Rangel’s entry of a conditional pleaof 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, omi tt ed the date and time of his fi rst hearing before an immigration judge. This NTA correctly re fl ected Hernandez’s address at that time—on Sheridan Road in Highwood, Illinois. Later that same day, Hernandez was released from ICEcustody on his own recognizance. His Order of Release directed him to report in person to an immigration o ffi cer on September 7, 2010. The Order of Release further instructed: “You must not change your place of residence without fi rst securing wri tt en permission from the immigration o ffi cer listed above.” On August 6, 2010, the Executive O ffi ce 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 informatio n in the initial NTA. This Notice set his hearing for Janu ary 3, 2012. Hernandez, however, never received this Notice be cause 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 o ffi cer as required, and at that time he completed and returned to the o ffi cer 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. Desp ite 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. Threemonths later, ICE agents arrested Hernandez at his Onwentsia address. ICE removed him eight days after his arrest. As with Rangel, Hernandez’s alien-registration fi le entry states that Hernandez received a “free legal aid list,” but therecord does not reveal the extent to which Hernandez was informed of his right to reopen. Unlike in Rangel’s case, the alien-registration fi le 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 identi fi ed during a tra ffi c stop. A grand jury indicted him on one count of illegal reentry. Like Rangel, Hernandez fi led 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 a tt empt to reenter, the United States without the consent of the A tt orney 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), wh ich imposes three requirements on an alien seeking to challeng e 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 re moval order must be “fundamentally unfair.” 8 U.S.C. § 1326( d)(1)–(3). The alien bears theburden 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 a tt ack 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 th eir 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 ti me 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 continuo us physical presence in theUnited 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 mi ssing information prevents an NTA from satisfying the statutory de fi nition in 8 U.S.C. § 1229(a). Id. at 2113–14. Like many other litigants, Rangel and Hernandez both argued at th e district court that a de fi cient NTA deprived an immigration court of jurisdiction, and thus their removal enters were void and could not support theirrespective 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 de fi cient NTAs, they meet the statutory and constitutional requirements for a collateral

a tt ack 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 the8 Nos. 19-1964 & 19-2113

question had previously condoned the “two-step procedure” to remedy de fi cient 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 ava ilable 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 reop en their removal proceedingsas 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 fi le a motion to reopen within ninety days of the entry of a fi nal decision. 8U.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 fi led motions to reopen, they co uld have obtained judicial review of the denial of those motions or of the fi nal 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 “aliensNos. 19-1964 & 19-2113 9

are presumed capable of researching generally available remedies.” Alegria-Saldana , 750 F.3d at 641. They a tt empt 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 fi le a motion to reopen or to seek habeas relief, with no indication that authorities ev er 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 a tt empt, 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 thehabeas corpus remedy under 28 U.S.C. § 2241 and the common law, INS v. St. Cyr, 533 U.S. 289 (2001). Alegria-Saldanadoes not suggest that an immigration judge has a duty to inform an alien of direct remedi es 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 misleadingan 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 th e 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 mere ly fail to notify the defendants of their opportunities for judicial review, but rather presented a ffi rmative, misleading (albeit technically correct) statements. In Charleswell , a reinstatement order read, “You may contest this determination by making a wri tt en or oral statement to an immigration o ffi cer. You do not have a right to a hearing before an immigrat ion judge.” 456 F.3d at 356. An alien does, however, have a statutory right to direct judicial review in the appropriate cour t 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 thou gh 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, wh en in fact is was available through a di ff erent 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 “a ffi rmative 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 revi ew “at the conclusion of [their]hearing[s],” without also listing other available options for relief, such as a motion to reop en. Thus, although the statement on their NTAs was factually a ccurate, the defendants arguethat they were misled to believe that they could no longer contest their removal orders because they were not present atNos. 19-1964 & 19-2113 11

their hearings and missed thei r 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 Circui t have found the lack of full disclosure su ffi cient to collaterally a tt ack a removal order, see Charleswell , 456 F.3d at 355–56 (reserving question); Lopez , 445F.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 fi ling a motion to reopen was not feasible. True, in Arita-Campos , the Court deemed 39 days in custody, a period signi fi cantly longer than the time either defendant spent in this case, su ffi cient time to fi le 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 su ffi cient time to fi le a motion to reopen). In any event, the number of da ys 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 inte rpretation, the government argues that Rangel and Hernandez could have filed a motion on the day of oral argument. Defe ndants, on the other hand, argue that they were permitted to file their motions to reopen only until their orders of remo val 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, because12 Nos. 19-1964 & 19-2113

our case law makes clear thatRangel and Hernandez may have moved to reopen at least until the time they reentered the country, including while th ey 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 cu stody for a brief time has no bearing on whether the motion to reopen was available to them.

B. Fundamental UnfairnessRangel and Hernandez argue that their removal proceedings were fundamentally unfair for purposes of 8 U.S.C. § 1326(d)(3) because of their de fi cient 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 su ff er 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 thecommonly-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 ha ve issued, and the case could have proceeded.” Id. Catching the errors in the deficientNTAs 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 om issions, ICE could have proceeded with removal by simp ly 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 havefailed 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 recogniz es 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.