FILED United States Court of UNITED STATES COURT OF APPEALS Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ March 29, 2019
Elisabeth A. Shumaker UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 18-6189 (D.C. No. 5:18-CR-00125-HE-1) JOSE RAMON CONTRERAS- (W.D. Okla.) CABRERA, a/k/a Jose Contreras- Cabrera, a/k/a Jose Ramon Contreras, a/k/a Ramon Contreras, a/k/a Hector Morales, a/k/a Joe Anthony Rodriguez, a/k/a Jimmy Marie Morales,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, McKAY, and O’BRIEN, Circuit Judges. _________________________________
* The parties have not requested oral argument, and it would not materially help us to decide this appeal. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). The defendant, Jose Ramos Contreras-Cabrera, pleaded guilty to
unlawfully reentering the United States after removal. See 8 U.S.C.
§1326(a). But he later sought to withdraw the guilty plea, arguing that the
original removal order had been invalid. The district court denied the
motion to withdraw, reasoning that 8 U.S.C. § 1326(d) prohibited Mr.
Contreras-Cabrera’s collateral challenge to the validity of the removal
order.
Mr. Contreras-Cabrera appeals, arguing (1) that he either satisfied or
was excused from satisfying § 1326(d) and (2) that the original removal
order was void because the immigration judge lacked subject-matter
jurisdiction. We reject these arguments and affirm the denial of the motion
to withdraw the guilty plea.
1. Standard of Review
When reviewing the denial of Mr. Contreras-Cabrera’s motion to
withdraw his guilty plea, we apply the abuse-of-discretion standard. United
States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004).
2. Requirements to Collaterally Challenge the Removal Order
Mr. Contreras-Cabrera contends that the district court abused its
discretion in denying his motion to withdraw because his alleged acts
would not have constituted the crime of illegal reentry. This crime is
defined as the reentry into the United States after exclusion, removal,
2 deportation, or denial of admission. 8 U.S.C. § 1326(a). Mr. Contreras-
Cabrera contends that he did not commit this crime because his prior
removal order had been void.
To collaterally challenge the removal order, Mr. Contreras-Cabrera
had to prove three elements:
1. he had exhausted any administrative remedies that may have been available to challenge the removal order,
2. the removal proceedings had improperly deprived him of an opportunity for judicial review, and
3. the entry of the removal order had been fundamentally unfair.
See 8 U.S.C. § 1326(d)(1–3). The district court concluded that Mr.
Contreras-Cabrera had failed to satisfy any of the three elements. Because
we agree that Mr. Contreras-Cabrera failed to exhaust administrative
remedies, we affirm. 1
3. Failure to Exhaust Administrative Remedies
We start (and ultimately end) with the first element: exhaustion of
administrative remedies. In considering this element, we begin with our
overarching standard of review: abuse of discretion. See p. 2, above. A
court can abuse its discretion by committing legal error. United States v.
1 Because we ultimately conclude that Mr. Contreras-Cabrera did not prove exhaustion, we need not address his arguments involving the second and third elements of 8 U.S.C. § 1326(d). 3 Sandoval-Enrique, 870 F.3d 1207, 1214 (10th Cir. 2017). Here, though, the
district court did not abuse its discretion in finding a failure to exhaust
administrative remedies.
The removal order was issued in 1992. Before the immigration judge
ordered removal, Mr. Contreras-Cabrera had conceded removability and
waived his right to appeal the removal order. By waiving his right to
appeal, Mr. Contreras-Cabrera would ordinarily have failed to exhaust
administrative remedies. United States v. Chavez-Alonso, 431 F.3d 726,
728 (10th Cir. 2005).
But Mr. Contreras-Cabrera insists that he was not required to exhaust
administrative remedies because (1) exhaustion would have been futile and
(2) the removal order was void for lack of subject-matter jurisdiction. We
reject both contentions.
According to Mr. Contreras-Cabrera, it would have been futile in
1992 to argue in the administrative proceedings that the removal order was
void. But futility does not excuse a failure to exhaust when administrative
exhaustion is required by a statute. See Booth v. Churner, 532 U.S. 731,
741 n.6 (2001) (courts will “not read futility or other exceptions into
statutory exhaustion requirements”). Because administrative exhaustion is
required by a statute (8 U.S.C. § 1326(d)(1)), no futility exception exists.
See United States v. Copeland, 376 F.3d 61, 66–67 (2d Cir. 2004) (holding
4 that no futility exception exists, with one exception not relevant here, for
the requirement of administrative exhaustion under 8 U.S.C. § 1326(d)). 2
We thus need not decide whether it would have been futile for Mr.
Contreras-Cabrera to exhaust administrative remedies.
Mr. Contreras-Cabrera also contends that the immigration judge
lacked subject-matter jurisdiction, rendering the removal order void and
eliminating the need for administrative exhaustion. According to Mr.
Contreras-Cabrera, the immigration judge would have obtained jurisdiction
upon the filing of a notice to appear. See 8 C.F.R. § 1003.14(a) (stating
that jurisdiction vests with an immigration judge when a charging
document is filed). But he adds that the notice to appear needed to state the
date and time for his appearance before an immigration judge. See 8 U.S.C.
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FILED United States Court of UNITED STATES COURT OF APPEALS Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ March 29, 2019
Elisabeth A. Shumaker UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 18-6189 (D.C. No. 5:18-CR-00125-HE-1) JOSE RAMON CONTRERAS- (W.D. Okla.) CABRERA, a/k/a Jose Contreras- Cabrera, a/k/a Jose Ramon Contreras, a/k/a Ramon Contreras, a/k/a Hector Morales, a/k/a Joe Anthony Rodriguez, a/k/a Jimmy Marie Morales,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, McKAY, and O’BRIEN, Circuit Judges. _________________________________
* The parties have not requested oral argument, and it would not materially help us to decide this appeal. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). The defendant, Jose Ramos Contreras-Cabrera, pleaded guilty to
unlawfully reentering the United States after removal. See 8 U.S.C.
§1326(a). But he later sought to withdraw the guilty plea, arguing that the
original removal order had been invalid. The district court denied the
motion to withdraw, reasoning that 8 U.S.C. § 1326(d) prohibited Mr.
Contreras-Cabrera’s collateral challenge to the validity of the removal
order.
Mr. Contreras-Cabrera appeals, arguing (1) that he either satisfied or
was excused from satisfying § 1326(d) and (2) that the original removal
order was void because the immigration judge lacked subject-matter
jurisdiction. We reject these arguments and affirm the denial of the motion
to withdraw the guilty plea.
1. Standard of Review
When reviewing the denial of Mr. Contreras-Cabrera’s motion to
withdraw his guilty plea, we apply the abuse-of-discretion standard. United
States v. Sandoval, 390 F.3d 1294, 1297 (10th Cir. 2004).
2. Requirements to Collaterally Challenge the Removal Order
Mr. Contreras-Cabrera contends that the district court abused its
discretion in denying his motion to withdraw because his alleged acts
would not have constituted the crime of illegal reentry. This crime is
defined as the reentry into the United States after exclusion, removal,
2 deportation, or denial of admission. 8 U.S.C. § 1326(a). Mr. Contreras-
Cabrera contends that he did not commit this crime because his prior
removal order had been void.
To collaterally challenge the removal order, Mr. Contreras-Cabrera
had to prove three elements:
1. he had exhausted any administrative remedies that may have been available to challenge the removal order,
2. the removal proceedings had improperly deprived him of an opportunity for judicial review, and
3. the entry of the removal order had been fundamentally unfair.
See 8 U.S.C. § 1326(d)(1–3). The district court concluded that Mr.
Contreras-Cabrera had failed to satisfy any of the three elements. Because
we agree that Mr. Contreras-Cabrera failed to exhaust administrative
remedies, we affirm. 1
3. Failure to Exhaust Administrative Remedies
We start (and ultimately end) with the first element: exhaustion of
administrative remedies. In considering this element, we begin with our
overarching standard of review: abuse of discretion. See p. 2, above. A
court can abuse its discretion by committing legal error. United States v.
1 Because we ultimately conclude that Mr. Contreras-Cabrera did not prove exhaustion, we need not address his arguments involving the second and third elements of 8 U.S.C. § 1326(d). 3 Sandoval-Enrique, 870 F.3d 1207, 1214 (10th Cir. 2017). Here, though, the
district court did not abuse its discretion in finding a failure to exhaust
administrative remedies.
The removal order was issued in 1992. Before the immigration judge
ordered removal, Mr. Contreras-Cabrera had conceded removability and
waived his right to appeal the removal order. By waiving his right to
appeal, Mr. Contreras-Cabrera would ordinarily have failed to exhaust
administrative remedies. United States v. Chavez-Alonso, 431 F.3d 726,
728 (10th Cir. 2005).
But Mr. Contreras-Cabrera insists that he was not required to exhaust
administrative remedies because (1) exhaustion would have been futile and
(2) the removal order was void for lack of subject-matter jurisdiction. We
reject both contentions.
According to Mr. Contreras-Cabrera, it would have been futile in
1992 to argue in the administrative proceedings that the removal order was
void. But futility does not excuse a failure to exhaust when administrative
exhaustion is required by a statute. See Booth v. Churner, 532 U.S. 731,
741 n.6 (2001) (courts will “not read futility or other exceptions into
statutory exhaustion requirements”). Because administrative exhaustion is
required by a statute (8 U.S.C. § 1326(d)(1)), no futility exception exists.
See United States v. Copeland, 376 F.3d 61, 66–67 (2d Cir. 2004) (holding
4 that no futility exception exists, with one exception not relevant here, for
the requirement of administrative exhaustion under 8 U.S.C. § 1326(d)). 2
We thus need not decide whether it would have been futile for Mr.
Contreras-Cabrera to exhaust administrative remedies.
Mr. Contreras-Cabrera also contends that the immigration judge
lacked subject-matter jurisdiction, rendering the removal order void and
eliminating the need for administrative exhaustion. According to Mr.
Contreras-Cabrera, the immigration judge would have obtained jurisdiction
upon the filing of a notice to appear. See 8 C.F.R. § 1003.14(a) (stating
that jurisdiction vests with an immigration judge when a charging
document is filed). But he adds that the notice to appear needed to state the
date and time for his appearance before an immigration judge. See 8 U.S.C.
§ 1229(a) (stating that an alien in a removal proceeding must be provided a
written notice containing the date and time to appear). Because Mr.
2 When a statute requires a litigant to exhaust administrative remedies that “may have been available,” 8 U.S.C. § 1326(d)(1), exhaustion may be unnecessary if “the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736 (2001). In United States v. Copeland, the Second Circuit characterized this principle as a type of futility exception. 376 F.3d 61, 66–67 (2d Cir. 2004). But Mr. Contreras- Cabrera argues only that he would not have been able to prevail in an earlier administrative challenge; he doesn’t question the availability of a remedy under the administrative procedure. 5 Contreras-Cabrera had not received a notice to appear with the date and
time to appear, he argues that the immigration judge never obtained
subject-matter jurisdiction.
Mr. Contreras-Cabrera’s argument fails based on the requirements in
place when the immigration judge ordered removal (1992). At that time,
immigration authorities were not using notices to appear and had no
statutory obligation to include the date or time in the initial document sent
to the alien. See 8 C.F.R. § 3.14(a) (1992); 8 C.F.R. § 3.13 (1992). These
documents and requirements came roughly four years after Mr. Contreras-
Cabrera’s removal order. 3
In 1992, the regulations vested jurisdiction in the immigration judge
upon the filing of a charging document. 8 C.F.R. § 3.14(a) (1992). And no
one questions that a charging document was filed prior to Mr. Contreras-
Cabrera’s removal proceedings. Thus, failure to satisfy the later statutory
3 In district court, the government did not rely on the timing of the statutory requirements to include the date and time in the notice to appear. Thus, Mr. Contreras-Cabrera contends that the government forfeited this timing issue. But we are “free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law.” United States v. Romero, 749 F.3d 900, 906 (10th Cir. 2014). As a result, we can affirm on this ground even if the government failed to raise the timing issue in district court. See United States v. Mosley, 743 F.3d 1317, 1324 & n.2 (10th Cir. 2014) (considering an argument for affirmance made by the government for the first time on appeal even though the argument conflicted with the government’s position in district court). 6 requirements could not have affected the immigration judge’s jurisdiction
in 1992. 4
4. Conclusion
Mr. Contreras-Cabrera did not exhaust administrative remedies, and
he could not avoid the exhaustion requirement based on futility or
characterization of the removal order as void. Given the failure to exhaust
administrative remedies, Mr. Contreras-Cabrera could not collaterally
challenge the validity of the removal order. Thus, the district court did not
abuse its discretion in denying the motion to withdraw Mr. Contreras-
Cabrera’s guilty plea. We therefore affirm.
Entered for the Court
Robert E. Bacharach Circuit Judge
4 Mr. Contreras-Cabrera invokes Pereira v. Sessions, 138 S. Ct. 2105 (2018), arguing that it renders an immigration proceeding void if it begins through a notice to appear that omits some of the information required in 8 U.S.C. § 1229(a). But Pereira addressed a “narrow question” about the interplay between § 1229(a) and a different statute than the one at issue. 138 S. Ct. at 2110. Because we ultimately conclude that § 1229(a) does not apply, we need not address Mr. Contreras-Cabrera’s argument concerning Pereira. 7