FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-30181 Plaintiff-Appellant, D.C. No. v. 2:19-cr-00135-RMP JAIME CASTELLANOS-AVALOS, Defendant-Appellee. OPINION Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding Argued and Submitted October 6, 2021 Seattle, Washington Filed January 18, 2022 Before: RICHARD A. PAEZ, MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges. Opinion by Judge Milan D. Smith, Jr. 2 UNITED STATES V. CASTELLANOS-AVALOS SUMMARY * Criminal The panel reversed the district court’s order granting Jaime Castellanos-Avalos’s motion to dismiss an indictment charging him with returning to the United States after having been ordered removed in violation of 8 U.S.C. § 1326. Castellanos-Avalos moved to dismiss pursuant to 8 U.S.C. § 1326(d), arguing that his removal order was fundamentally unfair and that procedural defects in his removal proceedings justified setting it aside. The district court granted the motion, reasoning that the failure of Castellanos-Avalos’s attorney or the immigration judge to advise Castellanos-Avalos that he could seek voluntary departure excused or satisfied § 1326(d)'s procedural prerequisites for a collateral attack—administrative exhaustion and deprivation of judicial review—and because Castellanos-Avalos could plausibly have been granted that form of relief. In a criminal proceeding under § 1326, an alien may not challenge the validity of a removal order unless the alien demonstrates exhaustion of available administrative remedies (§ 1326(d)(1)); that the removal proceedings improperly deprived the alien of the opportunity for judicial review (§ 1326(d)(2)); and that entry of the order was fundamentally unfair (8 U.S.C. § 1326(d)(3)). * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. CASTELLANOS-AVALOS 3 The panel noted that the Supreme Court’s May 2021 decision in United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021)—which held that a court may not excuse a failure to exhaust administrative remedies and that each of the statutory requirements of § 1326(d) is mandatory—has called into question at least some aspects of this court’s framework for recognizing circumstances in which a defendant could overcome both the exhaustion requirement and the deprivation-of-judicial-review requirement. The panel heeded Palomar-Santiago’s reminder that defendants must meet all three requirements of § 1326(d), and was mindful of recent Ninth Circuit opinions expressing doubt about the continued validity of this court’s § 1326(d) doctrines after Palomar-Santiago. But the panel concluded that it is largely unnecessary to apply Palomar-Santiago to these unique facts because under this court’s existing case law, Castellanos-Avalos cannot satisfy § 1326(d)’s deprivation-of-judicial-review requirement, given that Castellanos-Avalos did, in fact, seek judicial review, and received it. Because Castellanos-Avalos failed to show that he was deprived of the opportunity for judicial review, as he was required to do in order to collaterally attack his removal order, the panel did not need to consider the government’s other arguments. The panel remanded for further proceedings, including reinstatement of the indictment. 4 UNITED STATES V. …
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