Pertinent Practice Areas: Criminal – Immigration – Illegal Reentry

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7^th Circuit Court of Appeals

Case No.: 15-1312

Case Name: United States of America v. Juan Larios-Buentello

Officials: FLAUM, EASTERBROOK, and HAMILTON, Circuit Judges.

Pertinent Practice Areas: Criminal – Immigration – Illegal Reentry

Court did not err in entering conviction against appellant for illegal reentry despite assertion of §1326(d) defense.

“The district court held that Larios-Buentello had not established a defense under §1326(d)—that, indeed, none of the three paragraphs of subsection (d) had been met, and every circuit that has considered the issue has held that an alien must meet all three. See, e.g., United States v. SotoMateo, 799 F.3d 117, 120 (1st Cir. 2015); United States v. Torres, 383 F.3d 92, 98–99 (3d Cir. 2004). Larios-Buentello had not appealed the IJ’s removal order to the Board of Immigration Appeals and thus had not satisfied paragraph (d)(1); he had not been deprived of the opportunity for judicial review and thus had not satisfied paragraph (d)(2); and it is not “fundamentally unfair” to refrain from advising an administrative litigant of an opportunity to seek relief that the agency sincerely believes to be unavailable. No one is entitled to have an adverse litigant announce the opposite of its actual legal position. See United States v. Santiago-Ochoa, 447 F.3d 1015, 1019–20 (7th Cir. 2006) (aliens do not have a constitutional right to be notified even of those discretionary remedies that the agency believes to be available); see also, e.g., Soto-Mateo, 799 F.3d at 123.”

Affirmed.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.