NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

 v. 

MANUEL ALEJANDRO SANCHEZ, 

Defendant-Appellee.

No. 20-30084 

D.C. Nos. 

4:19-cr-06052-SMJ-1 

4:19-cr-06052-SMJ 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted June 11, 2021

Seattle, Washington

Before: GOULD, CLIFTON, and MILLER, Circuit Judges.

The United States appeals from the district court’s dismissal of an 

indictment charging Manuel Sanchez with unlawful reentry, in violation of 8 

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, 

United States v. Gonzalez-Valencia, 987 F.3d 1239, 1241 (9th Cir. 2021), we 

reverse and remand.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUL 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

1. A defendant “may not challenge the validity” of a removal order 

underlying an unlawful reentry charge unless he demonstrates that (1) he 

“exhausted any administrative remedies that may have been available to seek relief 

against the order,” (2) his removal proceedings “improperly deprived [him] of the 

opportunity for judicial review,” and (3) “the entry of the order was fundamentally 

unfair.” 8 U.S.C. § 1326(d); see United States v. Palomar-Santiago, 141 S. Ct. 

1615, 1620 (2021). Sanchez waived his right to appeal his final order of removal to 

the Board of Immigration Appeals. Because he failed to exhaust his administrative 

remedies, see Palomar-Santiago, 141 S. Ct. at 1621, and consequently was not 

deprived of judicial review, Sanchez cannot now collaterally attack his removal 

order.

The district court excused Sanchez’s compliance with section 1326(d)’s 

exhaustion and judicial review requirements on the theory that Sanchez’s waiver of 

appeal was invalid because he “was not given a genuine opportunity to present 

evidence favoring his application” for voluntary departure. Because due process 

requires that a defendant have an opportunity to challenge the validity of a removal 

order “used to establish an element of a criminal offense,” United States v. 

Mendoza-Lopez, 481 U.S. 828, 837–39 (1987), “we have generally held that where 

an alien is deprived of his right to appeal to the BIA,” he “is excused from 

satisfying (d)(1) and satisfies (d)(2),” United States v. Gonzalez-Villalobos, 724 
3 

F.3d 1125, 1130 & n.7 (9th Cir. 2013).

The government argues that Palomar-Santiago abrogated that holding. We 

need not decide that issue because even assuming that the failure to exhaust can 

still be excused, the district court erred in excusing it here. The inability to present 

evidence favoring voluntary departure “is not an error that, by its nature, affected 

[Sanchez’s] awareness of or ability to seek judicial review.” Gonzalez-Villalobos, 

724 F.3d at 1132. To the contrary, Sanchez was aware of his right to seek 

voluntary departure, applied for it, and could have appealed the denial of that 

relief. Any error committed by the immigration judge would “not excuse 

[Sanchez’s] failure to comply with a mandatory exhaustion requirement” because 

“further administrative review, and then judicial review if necessary, could fix that 

very error.” Palomar-Santiago, 141 S. Ct. at 1621.

The district court also erred in finding that the entry of Sanchez’s final order 

of removal was “fundamentally unfair.” An order is fundamentally unfair if the 

defendant’s due process rights were violated at his removal proceeding and he 

suffered prejudice as a result. United States v. Valdez-Novoa, 780 F.3d 906, 913

(9th Cir. 2015). Even if the immigration judge violated Sanchez’s due process

rights by refusing to consider evidence favoring voluntary departure, Sanchez did 

not establish prejudice because it was not “plausible, rather than merely 

conceivable or possible,” that an immigration judge would have granted him relief. 
4 

Id. at 914. Sanchez’s equities most closely resemble those of the defendant in 

Valdez-Novoa, for whom voluntary departure was implausible. Id. at 921. On the 

positive side, both Sanchez and Valdez-Novoa arrived in the United States as 

children, and both attended school and worked in the United States. Id. at 917–18.

While Sanchez has U.S. citizen children and a U.S. citizen fiancée, which ValdezNovoa did not, Valdez-Novoa also had numerous U.S. citizen and lawful 

permanent resident family members in the United States, which Sanchez does not. 

Id. at 921. On the negative side, Sanchez was convicted of one more felony and 

one more misdemeanor than Valdez-Novoa, and the conduct underlying some of 

Sanchez’s convictions “could have resulted in serious injury.” Id. at 917, 920.

Sanchez failed to comply with the terms of probation and parole at least eight 

times, and he missed court hearings at least 16 times, which would have “cautioned 

the IJ against granting voluntary departure.” Id. at 920. Sanchez’s offenses had also 

grown more frequent and serious over time. See id. at 917. Finally, one of 

Sanchez’s convictions—unlawful possession of methamphetamine—constituted a 

non-waivable ground of inadmissibility, so a grant of voluntary departure would 

not have enabled him to lawfully reenter the country. See 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II).

2. The district court correctly rejected Sanchez’s argument that the 

immigration judge lacked jurisdiction over his removal proceedings due to a 
5 

defective notice to appear. Sanchez conceded that jurisdiction vested under 

Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), a decision that remains 

binding circuit precedent. See United States v. Bastide-Hernandez, No. 19-30006 

(9th Cir. July 12, 2021). The Supreme Court’s recent decision in Niz-Chavez v. 

Garland, 141 S. Ct. 1474 (2021), is not “clearly irreconcilable” with Karingithi. 

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Niz-Chavez

concerns the requirements for a notice to appear to trigger the stop-time rule for 

cancellation of removal, 141 S. Ct. at 1479; it has no bearing on jurisdiction. See 

Karingithi, 913 F.3d at 1161.

REVERSED and REMANDED.