Immigration – Removal Order

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7^th Circuit Court of Appeals

Case Name: United States of America v. Oscar Calan-Montiel

Case No.: 20-2082

Officials: EASTERBROOK, KANNE, and KIRSCH, Circuit Judges.

Focus: Immigration – Removal Order

Oscar Calan-Montiel, a citizen of Mexico, entered the United States without color of legal right to be here. He was caught in 2010 and ordered removed. Federal authorities returned him to Mexico in 2012. He came back, again evading inspection at the border, and was caught again in 2019. This time he was prosecuted under 8 U.S.C. §1326, a statute that applies to aliens who reenter the United States, without permission, after a removal order. He pleaded guilty and was sentenced to about 16 months in prison. The plea reserved the right to argue on appeal that his first removal was unlawful and that the criminal prosecution should have been dismissed.

According to Calan-Montiel, the agency never furnished him with a date for his removal hearing. We know that he did not attend and was ordered removed in his absence. That might be because a notice was not sent, because Calan-Montiel had not kept his address up to date, because a correctly addressed notice miscarried in the mails, or because Calan-Montiel decided that he lacked a defense to removal and so did not think attendance worthwhile. We need not determine which of these possibilities occurred, for Calan-Montiel does not deny that he had actual knowledge of the removal order. He could have asked the agency to reopen the proceedings, see 8 U.S.C. §1229a(b)(5)(C)(ii), but did not. He could have made that request even after being returned to Mexico. He could have sought judicial review before or after his removal. But he did not do that either. Instead he returned by stealth. That strategy makes it impossible to satisfy §1326(d), even if the agency erred in failing to send a proper notice of the hearing’s date. See United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. 2020).

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.