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Immigration – Removal Order

By: Derek Hawkins//May 4, 2020//

Immigration – Removal Order

By: Derek Hawkins//May 4, 2020//

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7th Circuit Court of Appeals

Case Name: United States of America v. Edmundo Manriquez-Alvarado

Case No.: 19-2521

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Immigration – Removal Order

Edmundo Manriquez-Alvarado, a citizen of Mexico, has entered the United States repeatedly by stealth. How often we do not know, but the record shows that he was ordered removed in 2008, 2010, 2012, 2014, and 2017, each time following a criminal conviction. (His record includes convictions for burglary, domestic violence, trafficking illegal drugs, and unauthorized reentry.) The gaps between the removal orders stem from the time it takes to catch him, plus time he spends in prison following his convictions.

Manriquez-Alvarado was found in the United States yet again in 2018 and indicted for illegal reentry. 8 U.S.C. §1326(a), (b)(2). His drug crime is defined by 8 U.S.C. §1101(a)(43)(B) as an “aggravated felony”. This increases the maximum punishment for unauthorized reentry. After the district court denied his motion to dismiss the indictment, Manriquez-Alvarado pleaded guilty and was sentenced to 39 months’ imprisonment. The plea reserved the right to contest on appeal the denial of the motion to dismiss.

All of the convictions for reentry rest on the 2008 removal order. Manriquez-Alvarado contends that this order is invalid because immigration officials never had “jurisdiction” to remove him. That’s because a document captioned “Notice to Appear” that was served on him in February 2008 did not include a date for a hearing. Pereira v. Sessions, 138 S. Ct. 2105 (2018), holds that a document missing this information does not satisfy the statutory requirements, 8 U.S.C. §1229(a)(1), for a Notice to Appear. We held in Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), that Pereira identifies a claims processing doctrine rather than a rule limiting the jurisdiction of immigration officials. Manriquez-Alvarado wants us to overrule Ortiz-Santiago, but that’s not in the cards. No other circuit has disagreed with its holding, and its reasoning is powerful.

Manriquez-Alvarado asserts that seeking review would have been futile in a second sense: Pereira was not decided until 2018, so he could not have relied on it in 2008. Once again this is irrefutable, but Pereira interpreted a statute that long predates 2008. Manriquez-Alvarado was free to rely on that statute. If the agency and court ruled against him, the relevant decision by the Supreme Court might have carried his name rather than Pereira’s. The statute does not ask whether administrative and judicial remedies would have been futile. It asks whether they were available. The best way to determine whether a remedy works is to use it and see what happens, rather than to bypass it and speculate years later about what might have happened. 534 U.S. 516 (2002) (an administrative remedy is “available” for the purpose of a different exhaustion rule if it offers the prospect of any relief, even if not the remedy the applicant wants).

Much the same may be said about Manriquez-Alvarado’s contention that the removal order was “fundamentally unfair”. He asserts that because he waived his rights without knowing about Pereira, which lay a decade in the future, the waiver was necessarily involuntary. To repeat: Pereira is a statutory decision, and Manriquez-Alvarado could have consulted the statute and invoked its benefit, small as that was. (Recall that the only effect of securing a complete Notice to Appear would have been a slight delay in removal.) We held in Ortiz-Santiago, 924 F.3d at 964–65, that the statute creates a procedural right that is lost if not asserted or the failure excused, and we applied that rule to an alien whose removal order predated Pereira. If that did not produce a fundamentally unfair outcome for Ortiz-Santiago, it does not produce one for Manriquez-Alvarado either. His removal was the result of his criminal conduct, coupled with the fact that he lacked permission to enter the United States at all. He has never asserted a legitimate claim of entitlement to be in the United States. It is not unfair, fundamentally or otherwise, to order such an alien to depart.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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