United States v. Zuniga

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2026
• Docket: 25-257
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-257 D.C. No. Plaintiff - Appellee, 8:21-cr-00072-DOC-1 v. MEMORANDUM* ELANO SERRANO ZUNIGA, AKA Elano Serrano,

Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted March 2, 2026 Pasadena, California

Before: WARDLAW and DE ALBA, Circuit Judges, and BROWN, District Judge.**

Elano Serrano Zuniga entered a conditional guilty plea to the charge of

illegal reentry under 8 U.S.C. § 1326. He now appeals the district court’s denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation. his motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). Zuniga

collaterally attacks the underlying removal order, arguing that ineffective

assistance of immigration counsel rendered the proceedings fundamentally unfair

and deprived him of meaningful judicial review within the meaning of § 1326(d).

We have jurisdiction under 28 U.S.C. § 1291, and we vacate the judgment of

conviction and reverse the denial of the motion to dismiss.

1. The district court correctly concluded that Zuniga satisfied § 1326(d)(1)’s

administrative exhaustion requirement. A defendant exhausts available

administrative remedies by appealing the immigration judge’s (“IJ”) decision to

the Board of Immigration Appeals (“BIA”). See United States v. Palomar-

Santiago, 593 U.S. 321, 327 (2021). Zuniga met this requirement by appealing the

IJ’s removal order to the BIA. The government’s argument that Zuniga failed to

exhaust administrative remedies because he did not raise ineffective assistance of

counsel before the BIA is unpersuasive. Exhaustion of administrative remedies

and issue exhaustion are analytically distinct. See Carr v. Saul, 593 U.S. 83, 88

n.2 (2021). Zuniga pursued the full administrative review process available to him

and therefore satisfied § 1326(d)(1).

2. The district court erred in concluding that Zuniga failed to demonstrate

that the removal proceedings improperly deprived him of the opportunity for

judicial review under § 1326(d)(2). The government contends, and the district

2 25-257 court reasoned, that Zuniga cannot meet this requirement because he could have

petitioned this court for review of the BIA’s decision but failed to do so. That

argument overlooks the nature of Zuniga’s claim. Zuniga alleges ineffective

assistance of counsel, a procedural defect that can functionally foreclose

meaningful review. See United States v. Lopez-Chavez, 757 F.3d 1033, 1044 (9th

Cir. 2014). Unlike the substantive immigration-law error at issue in United States

v. Portillo-Gonzalez, 80 F.4th 910, 918 (9th Cir. 2023), which further review could

have corrected, Zuniga’s claim concerns counsel’s failure to present and argue the

only form of relief for which he was eligible: pre-conclusion voluntary departure.

The same counsel continued representing Zuniga before the BIA and never raised

the claim that he himself was constitutionally ineffective. Consequently, this court

could not have considered the claim on direct review. See Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003). In these circumstances, the formal

availability of a petition for review does not defeat Zuniga’s showing that he was

deprived of meaningful judicial review. See United States v. Valdivias-Soto, 112

F.4th 713, 731–33 (9th Cir. 2024) (emphasizing that courts must consider the

“real-world workings” of the immigration system when evaluating the availability

of remedies within the meaning of § 1326(d)).

3. Zuniga also established that the entry of the removal order was

fundamentally unfair under § 1326(d)(3). To demonstrate fundamental unfairness,

3 25-257 a defendant must show both a due process violation and resulting prejudice.

United States v. Nunez, 140 F.4th 1157, 1167 (9th Cir. 2025) (concluding that

“fundamentally unfair” under § 1326(d)(3) means noncitizens “must show that

they have been denied due process under the Fifth Amendment” (citation

omitted)); see also Rodriguez-Lariz v. I.N.S., 282 F.3d 1218, 1226 (9th Cir. 2002)

(“Due process challenges to deportation proceedings require a showing of

prejudice to succeed.”).

Ineffective assistance of counsel in immigration proceedings may constitute

a due process violation where counsel’s performance prevents the noncitizen “from

reasonably presenting his case.” See Jie Lin v. Ashcroft, 377 F.3d 1014, 1023–24

(9th Cir. 2004) (citations omitted). Here, Zuniga’s counsel pursued cancellation of

removal and post-conclusion voluntary departure despite Zuniga’s statutory

ineligibility for those forms of relief, and failed to pursue pre-conclusion voluntary

departure, the only form of relief for which Zuniga was legally eligible. The

record reflects repeated skepticism by the IJ regarding Zuniga’s eligibility for the

relief counsel sought. Counsel nonetheless continued pursuing those

statutorily-barred theories, resulting in the denial of relief and an order of removal.

Counsel’s decision to not pursue the only claim of relief available to Zuniga

prevented him from presenting the only viable claim he had.

Zuniga has also demonstrated prejudice. “To prove prejudice, [Zuniga] need

4 25-257 not show that he actually would have been granted relief; rather, he must show

only that he had a ‘plausible’ basis for seeking relief from deportation.” United

States v. Pallares-Galan, 359 F.3d 1088, 1103 (9th Cir. 2004). Pre-conclusion

voluntary departure was legally available to Zuniga. Although the discretionary

grant of voluntary departure requires the IJ to balance positive and negative

equities, see United States v. Rojas-Pedroza, 716 F.3d 1253, 1264–65 (9th Cir.

2013), the record reflects that the IJ found Zuniga’s positive equities sufficient to

warrant the grant of an immigration bond in 2003, shortly before the 2004 removal

order. As such, Zuniga had at least a plausible basis for seeking voluntary

departure. Cf. id. at 1265 (concluding that “it is not plausible that an IJ would have

exercised discretion” with respect to pre-conclusion voluntary departure where the

“record showed no positive equities, other than [the noncitizen’s] intermittent stays

in the United States” (emphasis added)). Counsel’s ineffective assistance therefore

both violated due process and prejudiced Zuniga. Accordingly, the removal

proceedings were fundamentally unfair within the meaning of § 1326(d)(3). See

Lopez-Chavez, 757 F.3d at 1044.

Because Zuniga has satisfied each of § 1326(d)’s requirements, he may

collaterally attack the underlying removal order. See Palomar-Santiago, 593 U.S.

at 326. Without a valid removal order, the government cannot establish an

essential element of the § 1326 offense. See United States v. Mendoza-Lopez, 481

5 25-257 U.S. 828, 838–39 (1987).

REVERSED, JUDGMENT VACATED and REMANDED with

instructions to dismiss the indictment.

6 25-257