FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 5, 2019 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 19-6019 (D.C. No. 5:18-CR-00168-HE-1) (W.D. Okla.) JUAN LUIS ZUNIGA-GUERRERO, Defendant-Appellant. ORDER AND JUDGMENT * Before MATHESON, MCKAY, and BACHARACH, Circuit Judges. This appeal arises from an indictment against Mr. Juan Zuniga- Guerrero for unlawfully reentering the United States after removal. See 8 U.S.C. § 1326(a). Mr. Zuniga-Guerrero moved to dismiss the indictment, arguing that the immigration judge lacked jurisdiction when he ordered * The parties do not request 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 if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). removal. The district court denied the motion to dismiss based on the unavailability of collateral relief. See 8 U.S.C § 1326(d). Mr. Zuniga- Guerrero appeals, contending that the statutory requirements for collateral review were either excused or met. Engaging in de novo review, 1 we reject this argument and affirm. Under the relevant statutory scheme, aliens charged with unlawful reentry after removal can challenge the validity of their underlying removal orders only by satisfying three requirements: 1. The alien exhausted available administrative remedies. 2. The alien lacked an opportunity for judicial review in the removal proceedings. 3. Entry of the removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d)(1)–(3); United States v. Adam-Orozco, 607 F.3d 647, 651 (10th Cir. 2010) (Gorsuch, J.). Mr. Zuniga-Guerrero contends that he need not satisfy these requirements because the immigration judge lacked jurisdiction to enter the removal order. According to Mr. Zuniga-Guerrero, the immigration judge lacked jurisdiction because the notice to appear had omitted the date and time to appear. 1 See United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998) (de novo review). 2 We rejected this argument in United States v. Garcia-Galvan, No. 18-6198, 2019 WL 2513637, at *2–3 (10th Cir. June 18, 2019) (unpublished); see also Soriano-Mendosa v. Barr, No. 18-9535, 2019 WL 1531499, at *4 (10th Cir. Apr. 9, 2019) (unpublished) (concluding that the failure to include a date and time in the notice to appear had “no jurisdictional significance”). Though Garcia-Galvan is not precedential, it is persuasive. Guided by Garcia-Galvan, we conclude that Mr. Zuniga- Guerrero needed to satisfy the three statutory requirements before the district court could undertake collateral review of the removal order. In our view, the district court correctly ruled that Mr. Zuniga-Guerrero had failed to satisfy the first two statutory requirements. First, Mr. Zuniga-Guerrero did not exhaust available administrative remedies. He contends that exhaustion would have been ...
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