Argued November 17, 2015.
Appeal from the United States District Court for the Western District of Wisconsin. No. 13-cr-158-wmc -- William M. Conley, Chief Judge.
For United States of America, Plaintiff - Appellee: Peter M. Jarosz, Attorney, Office of The United States Attorney, Madison, WI.
For Juan M. Larios-Buentello, Defendant - Appellant: Syovata Edari, Attorney, Law Office of Syovata K. Edari, Madison, WI.
Before FLAUM, EASTERBROOK, and HAMILTON, Circuit Judges.
Easterbrook, Circuit Judge.
Juan Larios-Buentello has been removed from the United States frequently in light of his long criminal record (14 convictions in Florida alone). He repeatedly returns and has been convicted three times of illegal reentry, which violates 8 U.S.C. § 1326(a). The conviction now under review arose when Wisconsin turned him over to immigration officials after he had been caught fleeing the scene of an auto accident. The district judge sentenced him to 36 months' imprisonment. Larios-Buentello maintains that the district judge wrongly rejected his defense under § 1326(d). (After the judge rejected the defense, Larios-Buentello entered a conditional guilty plea, preserving appellate review of this issue.)
Subsection 1326(d) permits an alien to defeat a prosecution for illegal reentry by showing that " (1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings ... improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." An immigration judge ordered Larios-Buentello removed in 1998. (All later removals have been based on that order.) He contends that this removal was " fundamentally unfair" because the IJ did not advise him
that he would be eligible to seek discretionary relief from removal under § 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(c).
The IJ did not tell him this because § 212(c) had been repealed in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (Sept. 30, 1996), and the Department of Justice had taken the position that the repealer applies to aliens whose convictions predate the IIRIRA's effectiveness in April 1997. The Supreme Court disagreed with that position in 2001, as applied to aliens who pleaded guilty to felonies before the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) (April 24, 1996), which made § 212(c) unavailable to aliens whose convictions led to sentences exceeding five years' imprisonment. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). The Justices observed that the AEDPA's changes were not expressly retroactive, while the IIRIRA declared full retroactivity. St. Cyr therefore thought that pre-AEDPA guilty pleas were not good reasons to eliminate § 212(c) opportunities, for defendants' willingness to admit guilt might have been influenced by the fact that before April 24, 1996, no felony conviction (even one for an " aggravated" felony) inevitably led to removal.
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. Soto-Mateo, 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.
The second and third points follow directly from United States v. Zambrano-Reyes, 724 F.3d 761 (7th Cir. 2013), which rejected a § 1326(d) defense by someone who, like Larios-Buentello, was subject to a removal order entered before St. Cyr. Larios-Buentello tries to distinguish Zambrano-Reyes on the ground that he waived counsel during his removal proceedings, but that decision's reasoning does not depend on whether the alien retained counsel. What is more, Larios-Buentello unquestionably fails to satisfy paragraph (d)(1). He did not appeal to the BIA, which also prevented a request for judicial review. He offers an excuse for the failure to exhaust administrative remedies--he maintains that someone told him that an appeal would be futile--but the statute requires exhaustion, not excuses.
The order of removal recites that he was told that he was entitled to appeal and chose not to do so; he does not contend that this recital is false. So an administrative appeal was available, even if unlikely to succeed. A litigant's unilateral belief that an appeal would fail does not make the opportunity " unavailable" or excuse failure to ...