NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-30084 Plaintiff-Appellant, D.C. Nos. 4:19-cr-06052-SMJ-1 v. 4:19-cr-06052-SMJ MANUEL ALEJANDRO SANCHEZ, MEMORANDUM* Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding Argued and Submitted June 11, 2021 Seattle, Washington Before: GOULD, CLIFTON, and MILLER, Circuit Judges. The United States appeals from the district court’s dismissal of an indictment charging Manuel Sanchez with unlawful reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, United States v. Gonzalez-Valencia, 987 F.3d 1239, 1241 (9th Cir. 2021), we reverse and remand. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. A defendant “may not challenge the validity” of a removal order underlying an unlawful reentry charge unless he demonstrates that (1) he “exhausted any administrative remedies that may have been available to seek relief against the order,” (2) his removal proceedings “improperly deprived [him] of the opportunity for judicial review,” and (3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d); see United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620 (2021). Sanchez waived his right to appeal his final order of removal to the Board of Immigration Appeals. Because he failed to exhaust his administrative remedies, see Palomar-Santiago, 141 S. Ct. at 1621, and consequently was not deprived of judicial review, Sanchez cannot now collaterally attack his removal order. The district court excused Sanchez’s compliance with section 1326(d)’s exhaustion and judicial review requirements on the theory that Sanchez’s waiver of appeal was invalid because he “was not given a genuine opportunity to present evidence favoring his application” for voluntary departure. Because due process requires that a defendant have an opportunity to challenge the validity of a removal order “used to establish an element of a criminal offense,” United States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987), “we have generally held that where an alien is deprived of his right to appeal to the BIA,” he “is excused from satisfying (d)(1) and satisfies (d)(2),” United States v. Gonzalez-Villalobos, 724 2 F.3d 1125, 1130 & n.7 (9th Cir. 2013). The government argues that Palomar-Santiago abrogated that holding. We need not decide that issue because even assuming that the failure to exhaust can still be excused, the district court erred in excusing it here. The inability to present evidence favoring voluntary departure “is not an error that, by its nature, affected [Sanchez’s] awareness of or ability to seek judicial review.” Gonzalez-Villalobos, 724 F.3d at 1132. To the contrary, Sanchez was aware of his right to seek voluntary departure, applied for it, and could have appealed the denial of that relief. Any error committed by the immigration judge would “not excuse [Sanchez’s] failure to comply with a mandatory exhaustion requirement” because “further administrative …
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