Argued, September 16, 2013
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 11 CR 50065-1 -- Frederick J. Kapala, Judge.
For United States of America, Plaintiff - Appellee: Scott Paccagnini, Office of The United States Attorney, Rockford, IL.
For Nicolas Alegeria-Saldana, also known as: ROBERT MENDEZ, Defendant - Appellant: Frank C. Cook, Freeport, IL.
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
Rovner, Circuit Judge
Nicolas Alegria-Saldana, a citizen of Mexico, challenges the district court's denial of his motion to dismiss his indictment for illegal reentry after removal. See 8 U.S.C. § 1326(a), (b)(1). He entered a conditional guilty plea but maintains that the charges should be dismissed based on alleged due-process violations in the underlying removal order. Because Alegria-Saldana has not met the statutory requirements to collaterally attack his removal order, 8 U.S.C. § 1326(d), we affirm the district court's judgment.
Alegria-Saldana entered the United States at the age of 7, became a lawful permanent resident at 20, but was charged with removability at 34--in 2003--by immigration authorities for committing an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(ii), and a controlled-substance offense, see id . § 1227(a)(2)(B)(i). During removal proceedings, he conceded that his two convictions for possessing cocaine involved a controlled substance. But his lawyer argued that mere possession was not a drug-trafficking crime, and thus not an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B)
(defining " aggravated felony" as " illicit trafficking in a controlled substance" ). The distinction mattered because an aggravated felony determination would render him statutorily ineligible for discretionary relief. See 8 U.S.C. § 1229b(a)(3). Based on precedent from the Board of Immigration Appeals, the immigration judge ruled that Alegria-Saldana's conviction for cocaine possession was an aggravated felony, and denied his application for cancellation of removal. See 720 ILCS 570/402(c) (defining cocaine possession as felony under state law); In re Yanez-Garcia, 23 I & N Dec. 390, 398 (BIA 2002) (characterizing state felony convictions for drug possession as aggravated felonies). Alegria-Saldana did not appeal that decision, and he was removed to Mexico two months later.
The agency precedent on which the immigration judge relied was overturned three years later when the Supreme Court ruled that mere possession was not an aggravated felony under immigration law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006); see also Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th Cir. 2006) (Illinois felony conviction for possessing cocaine did not bar lawful permanent resident from seeking discretionary relief). By then Alegria-Saldana had reentered the United States illegally, and he was again convicted in Illinois of possessing cocaine. State authorities turned him over to immigration officials after his release in 2011.
Alegria-Saldana was charged with illegal presence in the United States after removal, see 8 U.S.C. § 1326(a), (b)(1), but he sought to dismiss the indictment based on alleged deficiencies in the underlying removal order, see id . § 1326(d). Under § 1326(d), a defendant may collaterally attack the removal order in a criminal proceeding by showing (1) exhaustion of administrative remedies, (2) unavailability of judicial review during the removal process, and (3) fundamental unfairness of the removal order. See id . § 1326(d)(1)-(3).
Alegria-Saldana maintained that he satisfied these three requirements. He pointed first to his lawyer's alleged deficiencies, and explained in an affidavit that he believed his lawyer would file an appeal. He noted that his lawyer reserved his right to appeal and pointed out that the immigration judge discussed his lawyer's role in the appeal process, stating that " [y]our lawyer has 30 days to decide if an appeal will be perfected or not, and you could decide that any time between the next 30 days." Second, Alegria-Saldana argued that he lacked " any understanding or particular knowledge of the law" and did not have the ability to file an ...