Background
Victoriano Salmeron, who had a history of entering and being removed from the United States, was indicted for illegal reentry. He sought to dismiss the indictment by collaterally attacking his underlying removal order, which had been reinstated multiple times without prior challenge. The district court granted Salmeron’s motion to dismiss, concluding that he could not have exhausted administrative remedies because a motion to reopen was foreclosed by the general post-departure bar.
The government appealed the district court’s decision. The central issue on appeal was whether Salmeron had satisfied the exhaustion requirement of 8 U.S.C. § 1326(d), which governs collateral attacks on removal orders in illegal reentry prosecutions.
The Court’s Holding
The Fifth Circuit reversed the district court’s dismissal of the indictment and remanded with instructions to reinstate it. The court held that Salmeron failed to satisfy the first prerequisite for a collateral attack under 8 U.S.C. § 1326(d)(1): the exhaustion of available administrative remedies. The court emphasized that a defendant bears the burden of proving each requirement of § 1326(d), and failure on any one requirement ends the inquiry.
The court found that a motion to reopen was available to Salmeron both before and after his removal. Specifically, the court noted that Salmeron had weeks between learning of his removal order and his actual deportation to pursue a motion to reopen but did not do so. Furthermore, the court clarified that the general post-departure bar (8 C.F.R. § 1003.2(d)) does not apply to motions to reopen “in absentia” orders for insufficient notice, as such motions may be filed “at any time” under 8 U.S.C. § 1229a(b)(5)(C)(ii) and 8 C.F.R. § 1003.23(b)(4)(ii), even after the alien’s departure. Therefore, because an administrative remedy remained available to Salmeron, he could not meet the exhaustion requirement for a collateral attack on his removal order.
Key Takeaways
- Defendants attempting a collateral attack on a removal order in an illegal-reentry prosecution must strictly satisfy all prerequisites of 8 U.S.C. § 1326(d), including the exhaustion of all available administrative remedies.
- A motion to reopen an “in absentia” removal order due to insufficient notice can be filed “at any time,” irrespective of the alien’s departure, thereby circumventing the general post-departure bar for other types of motions to reopen.
- The burden rests squarely on the defendant to demonstrate that all administrative remedies were exhausted or unavailable; failure to satisfy this initial step precludes a collateral attack.
- Even if a defendant learns of a removal order shortly before deportation, they are expected to pursue available administrative remedies during that period.
Why It Matters
This decision reaffirms the stringent requirements for collaterally attacking removal orders within the Fifth Circuit, particularly emphasizing the exhaustion doctrine. It clarifies that defendants cannot circumvent the exhaustion requirement by claiming a motion to reopen was unavailable if specific regulatory provisions (like those for “in absentia” orders) provide a pathway to challenge the order, even years after removal. For attorneys, this ruling underscores the importance of fully exhausting all administrative remedies available to clients in immigration proceedings, as failure to do so can prevent a later collateral attack in a criminal prosecution for illegal reentry, leading to the reinstatement of indictments.
This ruling reinforces the government’s position in illegal reentry cases by limiting defendants’ ability to challenge the underlying validity of their removal orders unless they can unequivocally demonstrate they met the high bar set by § 1326(d).