Case: 18-11643 Date Filed: 01/14/2019 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-11643 Non-Argument Calendar ________________________ D.C. Docket No. 9:17-cr-80207-WJZ-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus MANUEL L. MENDEZ-DELGADO, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (January 14, 2019) Case: 18-11643 Date Filed: 01/14/2019 Page: 2 of 5 Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges. PER CURIAM: Manuel Mendez-Delgado appeals his conviction for illegal reentry. The government contends we lack jurisdiction to hear this appeal. However, we do have jurisdiction, and we affirm Mendez-Delgado’s conviction. I. In 2004, an Immigration Judge ordered Mendez-Delgado removed in absentia after he failed to appear at a hearing. Mendez-Delgado was later apprehended and removed from the United States in 2010. Then Mendez-Delgado again reentered the United States unlawfully. He was arrested for failure to appear in a state court matter in 2017. This brought him to the attention of the Department of Homeland Security, and he was indicted for illegal reentry after having been removed in violation of 8 U.S.C. § 1326(a). Mendez-Delgado moved to dismiss the indictment, challenging the validity of the underlying order of removal. The District Court denied the motion to dismiss and convicted Mendez-Delgado of illegal reentry after a bench trial. This appeal timely followed. II. We review de novo our subject matter jurisdiction. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (per curiam). We also review de 2 Case: 18-11643 Date Filed: 01/14/2019 Page: 3 of 5 novo a collateral challenge to the validity of a deportation order. United States v. Watkins, 880 F.3d 1221, 1224 (11th Cir. 2018) (per curiam). III. The government’s sole argument on appeal is that this court lacks jurisdiction because Mendez-Delgado failed to exhaust available remedies. It is true that Mendez-Delgado had to exhaust administrative remedies, but his failure to do so does not necessarily deprive us of jurisdiction. The Immigration and Nationality Act (INA) prohibits collateral attacks on removal orders underlying illegal reentry charges unless “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued 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). But this provision does not “contain . . . jurisdictional terms.” Gonzalez v. Thaler, 565 U.S. 134, 143, 132 S. Ct. 641, 649 (2012) (clarifying that a provision of the Antiterrorism and Effective Death Penalty Act is nonjurisdictional). Rather, it requires a defendant to “demonstrate[]” that all three conditions are met in order to mount a collateral attack on a removal order. 8 U.S.C. § 1326(d). In other words, § 1326(d) establishes what a defendant must prove in order to prevail on the merits of a collateral attack. See Watkins, 880 F.3d at 1224–26 (adjudicating the merits ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals