US v. Jose Hernandez-Lopez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00016-CMH-1. Copies to all parties and the district court/agency. [999589457]. [14-4609]

Appeal: 14-4609

Doc: 39

Filed: 05/26/2015

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4609

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE
SANTIAGO
HERNANDEZ-LOPEZ,
a/k/a
Jose
Santiago
Hernandez, a/k/a Santiago Hernandez, a/k/a Jose Santiago,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:14-cr-00016-CMH-1)

Submitted:

May 19, 2015

Decided:

May 26, 2015

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Eric
Mothander, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4609

Doc: 39

Filed: 05/26/2015

Pg: 2 of 4

PER CURIAM:
Jose
unlawful

Santiago
reentry

Hernandez-Lopez
after

removal

by

appeals
an

his

conviction

aggravated

violation of 8 U.S.C. § 1326(a), (b)(2) (2012).

for

felon,

in

On appeal, he

challenges the district court’s denial of his motion to dismiss
the indictment, arguing that he satisfied the three requirements
for a collateral attack on his prior removal order set forth in
8 U.S.C. § 1326(d) (2012).
In

a

prosecution

defendant

may

Finding no error, we affirm.

for

illegal

collaterally

attack

reentry
the

after

removal

removal,
order

a

that

constitutes an element of the offense if he can show: (1) he
exhausted

any

available

to

effectively
removal

administrative
challenge

deprived

order;

and

fundamentally unfair.

of

the
his
(3)

remedies
order

that

of

may

removal;

right

to

judicial

the

removal

have
(2)

been

he

was

of

the

review

proceedings

were

8 U.S.C. § 1326(d) (2012); see United

States v. Mendoza-Lopez, 481 U.S. 828 (1987); United States v.
El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

A defendant must

satisfy all three of the above requirements to prevail.

United

States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), overruled
on

other

grounds

by

Lopez

v.

Gonzales,

549

U.S.

47

(2006).

“However, if the defendant satisfies all three requirements, the
illegal reentry charge must be dismissed as a matter of law.”
El Shami, 434 F.3d at 663.

This court conducts a de novo review
2

Appeal: 14-4609

of

Doc: 39

the

Filed: 05/26/2015

district

court’s

Pg: 3 of 4

denial

of

indictment under 8 U.S.C. § 1326(d).

a

motion

to

dismiss

an

Id.

Courts have generally held that “the exhaustion requirement
[of § 1326(d)(1)] must be excused where an alien’s failure to
exhaust

results

from

an

administrative appeal.”

invalid

waiver

of

the

right

to

an

United States v. Sosa, 387 F.3d 131,

136 (2d Cir. 2004); accord United States v. Reyes-Bonilla, 671
F.3d 1036, 1043 (9th Cir. 2012) (“If Reyes did not validly waive
his right of appeal, the first two requirements under § 1326(d)
will be satisfied.”); United States v. Martinez-Rocha, 337 F.3d
566, 569 (6th Cir. 2003).

If, however, “an alien knowingly and

voluntarily waives his right to appeal an order of deportation,
then his failure to exhaust administrative remedies will bar
collateral attack on the order in a subsequent illegal reentry
prosecution under § 1326(d).”

United States v. Cerna, 603 F.3d

32, 38 (2d Cir. 2010).
After conducting a de novo review, we find no error in the
district court’s denial of the motion to dismiss the indictment.
The

Notice

to

Appear

and

hearing

notice

served

on

Hernandez-Lopez indicate that he was provided with a list of pro
bono legal counsel, see 8 C.F.R. § 1240.10(a)(2), (3) (2014),
and

his

order

of

removal

indicates

that

he

waived

appeal.

Hernandez-Lopez contends that the record does not contain a copy
of the offered services and that thus it is not clear that such
3

Appeal: 14-4609

Doc: 39

Filed: 05/26/2015

Pg: 4 of 4

list was actually provided to him.

Such error, he asserts,

excuses

renders

his

failure

to

fundamentally unfair.
district
exhaust

court’s

exhaust

and

his

proceedings

Upon review, we find no error in the

conclusion

administrative

that

remedies

Hernandez-Lopez
available

to

failed

challenge

to
his

removal order and is thus barred from collaterally attacking the
order
that

under
his

§ 1326(d).

removal

Further,

proceedings

Hernandez-Lopez’s

were

fundamentally

assertion
unfair

is

without merit.
We accordingly affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

4