United States v. Gaona-Cornejo

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2025
• Docket: 25-3615
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-3615 D.C. No. Plaintiff - Appellee, 3:21-cr-00199-CRB-1 v. MEMORANDUM* RUBEN ANTONIO GAONA-CORNEJO,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted October 21, 2025** Portland, Oregon

Before: CALLAHAN, CHRISTEN, and HURWITZ, Circuit Judges.

Defendant Ruben Gaona-Cornejo appeals a district court order denying his

motion to dismiss his indictment for illegal reentry in violation of 8 U.S.C. § 1326.

Because the parties are familiar with the facts, we do not recount them here. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district

court’s order denying the motion to dismiss the indictment based on a collateral

challenge to a prior removal order. United States v. Gonzalez-Flores, 804 F.3d

920, 926 (9th Cir. 2015). We affirm.

To collaterally challenge an underlying order of removal in a prosecution for

illegal reentry, a defendant must demonstrate: (1) he “exhausted any administrative

remedies that may have been available to seek relief against the order”; (2) the

proceedings giving rise to the order “improperly deprived the alien of the

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

unfair.” 8 U.S.C. § 1326(d). All three elements of § 1326(d) are mandatory.

United States v. Palomar-Santiago, 593 U.S. 321, 326-27 (2021).

“Exhaustion of administrative remedies requires an alien to raise and appeal

before an agency the claims that the agency could consider to render relief against

the challenged order at issue.” United States v. De La Mora-Cobian, 18 F.4th

1141, 1146 (9th Cir. 2021). Here, the Immigration Judge (IJ) expressly informed

Gaona-Cornejo that he would have to decide whether to “fight the case” or to

concede removal, and Gaona-Cornejo stated that he would “get the deportation”

instead of applying for any relief. The IJ also informed Gaona-Cornejo of his right

to appeal, which he waived. Because Gaona-Cornejo did not seek any relief before

2 25-3615 the IJ and waived his right to appeal the IJ’s decision, he failed to exhaust his

administrative remedies. See id.

Gaona-Cornejo contends he satisfied § 1326(d)(1) because his waiver of

appellate rights was not knowing and intelligent. He contends he “relied on

inaccurate legal advice from a pro bono counsel” who informed him he had a 95%

chance of losing any appeal. But even if this contention is accurate, it does not

excuse failure to comply with § 1326(d)(1).

Section 1326(d)(1) “must be satisfied in every case.” United States v.

Valdivias-Soto, 112 F.4th 713, 731 (9th Cir. 2024). In narrow circumstances, an

administrative remedy that formally exists may not be “available” within the

meaning of § 1326(d)(1). Id. at 730-31 (citing Ross v. Blake, 578 U.S. 632, 643-44

(2016)). For example, in Valdivias-Soto, we held that administrative remedies

were unavailable because “the IJ misled the defendant as to the existence or rules

of the process for obtaining them.” Id. at 732 (citation modified). But here,

Gaona-Cornejo does not identify any misstatements by the IJ “concerning the

procedural rules for obtaining administrative remedies.” Id. (emphasis omitted).

“[T]he IJ informed [Gaona-Cornejo] . . . of [his] right to appeal and, unlike the IJ

in Valdivias-Soto, made no affirmative misrepresentations about that right.”

United States v. Nunez, 140 F.4th 1157, 1165 (9th Cir. 2025). “Thus, even if

[Gaona-Cornejo’s] waiver were not ‘considered and intelligent,’ that alone would

3 25-3615 not excuse [his] failure to exhaust administrative remedies pursuant to §

1326(d)(1).” Id.1

AFFIRMED.

1 Because we conclude that Gaona-Cornejo failed to satisfy § 1326(d)(1), we need not consider the other elements of § 1326(d). See United States v. Portillo- Gonzalez, 80 F.4th 910, 920 (9th Cir. 2023).

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