FILED NOT FOR PUBLICATION JUL 15 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50308
Plaintiff-Appellee, D.C. No. 3:22-cr-00448-TWR-1 v.
GILBERTO NICOLAS CAMPOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted June 6, 2024 Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER,** District Judge.
Defendant Gilberto Campos (“Campos”), a citizen of Mexico, was charged
under 8 U.S.C. § 1326 with unlawfully attempting to reenter the United States
following a prior removal. Campos moved to dismiss the information, alleging, inter
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. alia, that his prior removal order was invalid under § 1326(d) and that § 1326 violates
the equal protection guarantee of the Fifth Amendment under the standard articulated
in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). The district court denied the motion. At his bench trial, Campos asserted
that § 1326(a)(2)(B) precluded his conviction because he was previously removed and
was not required to obtain the Attorney General’s advance consent to reapply for
admission. The district court held that the affirmative defense under § 1326(a)(2)(B)
did not apply to Campos and convicted him under § 1326(a) and (b). Campos appeals
his conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. An alien in a criminal proceeding for unlawful reentry under § 1326(a) or
(b) “may not challenge the validity of the deportation order” that is an element of that
offense except in limited circumstances. 8 U.S.C. § 1326(d). An alien can collaterally
challenge the underlying removal order if (1) he “‘exhausted any administrative
remedies’ for relief against the order; (2) the removal proceedings ‘improperly
deprived [him] of the opportunity for judicial review;’ and (3) the order was
‘fundamentally unfair.’” United States v. Gambino-Ruiz, 91 F.4th 981, 985 (9th Cir.
2024) (quoting 8 U.S.C. § 1326(d)). “[E]ach of the statutory requirements of
§ 1326(d) is mandatory.” United States v. Palomar-Santiago, 593 U.S. 321, 329
-2- (2021). Campos maintains that he satisfies § 1326(d)’s prerequisites to collaterally
challenge the removal order underlying his unlawful reentry charge.
2. Campos does not satisfy § 1326(d)(1) or (2) because he neither exhausted
his administrative remedies by appealing the immigration judge’s (“IJ’s) decision to
the Board of Immigration Appeals (“BIA”), nor was deprived of the opportunity for
judicial review by filing a petition for review of a BIA decision with this court. See
id. at 327. Campos asserts that he satisfies these requirements because they are met
where administrative procedures are not “available” or “capable of use to obtain some
relief,” and that the IJ misled him regarding whether he could challenge the
classification of his predicate convictions and whether he was eligible for certain
removal relief.
Campos relies on Ross v. Blake, 578 U.S. 632 (2016), which interpreted a
statutory exhaustion requirement under the Prison Litigation Reform Act and
described three circumstances where “an administrative remedy, although officially
on the books, is not capable of use to obtain relief.” Id. at 643. Campos posits that
his case falls within Ross’s third category: “when prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. at 644. But we rejected a similar argument in United States v.
Portillo-Gonzalez, 80 F.4th 910 (9th Cir. 2023).
-3- In Portillo-Gonzalez we held that an immigration judge did not mislead an alien
regarding the procedural steps for pursuing administrative remedies because he
correctly informed the alien of his right to appeal, and the alien declined to appeal his
removal when asked. See id. at 920. Here, the IJ likewise correctly informed Campos
of his right to appeal on two occasions at his first removal hearing, and Campos
confirmed that he understood his right. The IJ asked Campos at his final removal
hearing whether he accepted the decision as final or intended to appeal, and Campos
responded, “Uh, I’ll take it as final.” Accordingly, we affirm the district court’s denial
of Campos’ motion to dismiss the information based on this ground.
3. We also affirm the district court’s denial of Campos’ motion to dismiss the
information on equal protection grounds. Campos asserts that § 1326 violates the
equal protection guarantee of the Fifth Amendment under the standard articulated in
Arlington Heights, but concedes that United States v. Carrillo-Lopez, 68 F.4th 1133
(9th Cir. 2023), forecloses his contention. Campos only seeks to preserve the issue
pending a writ of certiorari in that case, which the Supreme Court recently denied.
See Carrillo-Lopez v. United States, 144 S. Ct. 703 (2024).
4. We affirm Campos’ conviction. Section 1326(a)(2)(B) provides an
affirmative defense “with respect to an alien previously denied admission and
removed” who “establish[es] that he was not required to obtain [the Attorney
-4- General’s] advance consent” before reapplying for admission. 8 U.S.C.
§ 1326(a)(2)(B). The district court found Campos guilty after concluding that the
affirmative defense in § 1326(a)(2)(B) “by its express terms applies only to those
aliens previously . . . denied admission and removed” and that it was inapplicable
because Campos was “arrested and removed,” not “denied admission and
removed.” Campos argues that the district court erred by interpreting “and” in
§ 1326(a)(2)(B) as conjunctive when the “and” is disjunctive.
In Pulsifer v. United States, 601 U.S. 124 (2024), the Supreme Court considered
the safety-valve statute, 18 U.S.C. § 3553(f), which provides that a defendant is
exempt from a statutory minimum if “the defendant does not have (A) more than 4
criminal history points, excluding [those points] resulting from a 1-point offense . . .”,
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FILED NOT FOR PUBLICATION JUL 15 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50308
Plaintiff-Appellee, D.C. No. 3:22-cr-00448-TWR-1 v.
GILBERTO NICOLAS CAMPOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted June 6, 2024 Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER,** District Judge.
Defendant Gilberto Campos (“Campos”), a citizen of Mexico, was charged
under 8 U.S.C. § 1326 with unlawfully attempting to reenter the United States
following a prior removal. Campos moved to dismiss the information, alleging, inter
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. alia, that his prior removal order was invalid under § 1326(d) and that § 1326 violates
the equal protection guarantee of the Fifth Amendment under the standard articulated
in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). The district court denied the motion. At his bench trial, Campos asserted
that § 1326(a)(2)(B) precluded his conviction because he was previously removed and
was not required to obtain the Attorney General’s advance consent to reapply for
admission. The district court held that the affirmative defense under § 1326(a)(2)(B)
did not apply to Campos and convicted him under § 1326(a) and (b). Campos appeals
his conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. An alien in a criminal proceeding for unlawful reentry under § 1326(a) or
(b) “may not challenge the validity of the deportation order” that is an element of that
offense except in limited circumstances. 8 U.S.C. § 1326(d). An alien can collaterally
challenge the underlying removal order if (1) he “‘exhausted any administrative
remedies’ for relief against the order; (2) the removal proceedings ‘improperly
deprived [him] of the opportunity for judicial review;’ and (3) the order was
‘fundamentally unfair.’” United States v. Gambino-Ruiz, 91 F.4th 981, 985 (9th Cir.
2024) (quoting 8 U.S.C. § 1326(d)). “[E]ach of the statutory requirements of
§ 1326(d) is mandatory.” United States v. Palomar-Santiago, 593 U.S. 321, 329
-2- (2021). Campos maintains that he satisfies § 1326(d)’s prerequisites to collaterally
challenge the removal order underlying his unlawful reentry charge.
2. Campos does not satisfy § 1326(d)(1) or (2) because he neither exhausted
his administrative remedies by appealing the immigration judge’s (“IJ’s) decision to
the Board of Immigration Appeals (“BIA”), nor was deprived of the opportunity for
judicial review by filing a petition for review of a BIA decision with this court. See
id. at 327. Campos asserts that he satisfies these requirements because they are met
where administrative procedures are not “available” or “capable of use to obtain some
relief,” and that the IJ misled him regarding whether he could challenge the
classification of his predicate convictions and whether he was eligible for certain
removal relief.
Campos relies on Ross v. Blake, 578 U.S. 632 (2016), which interpreted a
statutory exhaustion requirement under the Prison Litigation Reform Act and
described three circumstances where “an administrative remedy, although officially
on the books, is not capable of use to obtain relief.” Id. at 643. Campos posits that
his case falls within Ross’s third category: “when prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. at 644. But we rejected a similar argument in United States v.
Portillo-Gonzalez, 80 F.4th 910 (9th Cir. 2023).
-3- In Portillo-Gonzalez we held that an immigration judge did not mislead an alien
regarding the procedural steps for pursuing administrative remedies because he
correctly informed the alien of his right to appeal, and the alien declined to appeal his
removal when asked. See id. at 920. Here, the IJ likewise correctly informed Campos
of his right to appeal on two occasions at his first removal hearing, and Campos
confirmed that he understood his right. The IJ asked Campos at his final removal
hearing whether he accepted the decision as final or intended to appeal, and Campos
responded, “Uh, I’ll take it as final.” Accordingly, we affirm the district court’s denial
of Campos’ motion to dismiss the information based on this ground.
3. We also affirm the district court’s denial of Campos’ motion to dismiss the
information on equal protection grounds. Campos asserts that § 1326 violates the
equal protection guarantee of the Fifth Amendment under the standard articulated in
Arlington Heights, but concedes that United States v. Carrillo-Lopez, 68 F.4th 1133
(9th Cir. 2023), forecloses his contention. Campos only seeks to preserve the issue
pending a writ of certiorari in that case, which the Supreme Court recently denied.
See Carrillo-Lopez v. United States, 144 S. Ct. 703 (2024).
4. We affirm Campos’ conviction. Section 1326(a)(2)(B) provides an
affirmative defense “with respect to an alien previously denied admission and
removed” who “establish[es] that he was not required to obtain [the Attorney
-4- General’s] advance consent” before reapplying for admission. 8 U.S.C.
§ 1326(a)(2)(B). The district court found Campos guilty after concluding that the
affirmative defense in § 1326(a)(2)(B) “by its express terms applies only to those
aliens previously . . . denied admission and removed” and that it was inapplicable
because Campos was “arrested and removed,” not “denied admission and
removed.” Campos argues that the district court erred by interpreting “and” in
§ 1326(a)(2)(B) as conjunctive when the “and” is disjunctive.
In Pulsifer v. United States, 601 U.S. 124 (2024), the Supreme Court considered
the safety-valve statute, 18 U.S.C. § 3553(f), which provides that a defendant is
exempt from a statutory minimum if “the defendant does not have (A) more than 4
criminal history points, excluding [those points] resulting from a 1-point offense . . .”,
“(B) a prior 3-point offense, as determined under the sentencing guidelines; and (C)
a prior 2-point violent offense, as determined under the sentencing guidelines.” The
Court addressed the question of whether these requirements were “a single,
amalgamated condition for relief” or whether the paragraph presented “a checklist
with three distinct conditions.” Pulsifer, 601 U.S. at 127. The Court recognized that
‘“and,’ in grammatical terms, is of course a conjunction—a word whose function is
to connect specified items.” Id. at 133. The Court concluded, however, that it could
not choose between the two possible interpretations through an application of
-5- “grammatical rules,” id., explaining that “and” could either be an additive conjunction,
requiring the defendant not to have “the combination of the three” requirements, id.
at 135, or it could be a distributive conjunction with the verb carrying over to every
item in the ensuing list, requiring “the defendant not to have A, and not to have B, and
not to have C,” id. at 140.
We conclude that the district court did not err in concluding that “and” was an
additive conjunction because Campos has not developed an argument that “and” could
function as a distributive conjunction. Campos’ only argument is that “and” is
disjunctive, but this argument is foreclosed by Pulsifer, which concluded that “and . . .
is of course a conjunction.” Id. at 133. Because Campos fails to argue “and” is a
distributive conjunction, or to provide an analysis of whether the grammatical
structure of § 1326(a)(2)(B) is comparable to the structure of the safety-valve statute,
we do not consider the argument that “and” in § 1326(a)(2)(B) functions as a
distributive conjunction. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d
1146, 1149 (9th Cir. 2016) (“[A]ppellate courts do not sit as self-directed boards of
legal inquiry and research, but essentially as arbiters of legal questions presented and
argued by the parties before them.”) (citation and internal quotation marks omitted).
And, although we may consider “the discussion of the [unraised] issue in th[e] briefs
[when] sufficient to permit an informed resolution of the dispute,”United States v.
-6- Ullah, 976 F.2d 509, 514 (9th Cir. 1992), the parties do not provide any briefing on
whether the grammatical structure of § 1326 could support interpreting “and” as a
distributive conjunction.
Instead, we address the argument presented by Campos—that “and” in
§ 1326(a)(2)(B) is functioning disjunctively—and we conclude that it does not. See
Pulsifer, 601 U.S. at 132–34. We therefore hold that the district court did not err in
interpreting “and” in § 1326(a)(2)(B) as an additive conjunction, requiring that an
alien be both “previously denied admission and removed” to assert an affirmative
defense. And because Campos was never denied admission, he was ineligible for
relief pursuant to § 1326(a)(2)(B).
AFFIRMED.
-7-