US v. Levy Ramirez Mejia
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00361-LO-1. Copies to all parties and the district court/agency . [16-4227]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
LEVY GUILLERMO RAMIREZ MEJIA, a/k/a Levy Ramirez, a/k/a
Ramirez Levy, a/k/a Levy Guillermo Ramirez-Mejia, a/k/a Levy
Guillermo Mejia Ramirez, a/k/a Levy Guillermo Ramirez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District Judge.
November 15, 2016
December 15, 2016
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Elizabeth Mullin, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant.
Dana J. Boente,
United States Attorney, David Peters, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Levy Guillermo Ramirez Mejia (Ramirez) appeals his conviction
for unlawful reentry after removal following a conviction for a
felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012).
appeal, he challenges the district court’s denial of his motion to
requirements for a collateral attack on his prior removal order
set forth in 8 U.S.C. § 1326(d) (2012).
Finding no error, we
In a prosecution for illegal reentry following an order of
removal, a defendant may collaterally attack the removal order
“(1) [he] exhausted any administrative remedies that may have been
available to seek relief against the order; (2) the deportation
proceedings at which the order was issued improperly deprived [him]
of the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.”
8 U.S.C. § 1326(d); see United
petition for cert. filed, __ U.S.L.W. __ (U.S. Sept. 26, 2016)
conjunctive, a defendant must show all three in order to prevail.
satisfies all three requirements, the illegal reentry charge must
be dismissed as a matter of law.”
United States v. El Shami, 434
F.3d 659, 663 (4th Cir. 2005).
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We conduct a de novo review of the
district court’s denial of a motion to dismiss an indictment under
8 U.S.C. § 1326(d).
On appeal, Ramirez first claims that he is not barred by the
exhaustion requirement set forth in 8 U.S.C. § 1326(d)(1) because
exhaustion requirements such as that set forth in § 1326(d) are
mandatory, and courts are not free to dispense with them.”
States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002) (internal
quotation marks omitted).
“The qualification to this rule is that
requirement ‘where the relevant administrative procedure lacks
authority to provide any relief or to take action whatsoever in
response to a complaint.’”
United States v. Copeland, 376 F.3d
61, 67 (2d Cir. 2004) (quoting Booth v. Churner, 532 U.S. 731, 736
After conducting a de novo review of Ramirez’s claims, we
agree with the district court that Ramirez cannot demonstrate that
administrative remedies were unavailable to him on account of
See United States v. Ramirez Mejia, No. 1:15-cr-00361-
LO-1 (E.D. Va. Feb. 23, 2016).
Accordingly, we conclude that
Ramirez, who did not appeal the removal order to the Board of
Immigration Appeals, failed to exhaust available administrative
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remedies to challenge his removal order and is thus barred from
collaterally attacking the order under 8 U.S.C. § 1326(d). *
We therefore uphold the district court’s denial of Ramirez’s
motion to dismiss the indictment and affirm the criminal judgment.
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
Because Ramirez fails to demonstrate that he exhausted any
available administrative remedies to seek relief against the
removal order, we need not consider whether his removal proceedings
improperly deprived him of the opportunity for judicial review or
whether the entry of his removal order was fundamentally unfair.
See § 1326(d)(2), (3).
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