United States v. Gaona-Cornejo

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-3615 D.C. No. Plaintiff - Appellee, 3:21-cr-00199-CRB-1 v. MEMORANDUM* RUBEN ANTONIO GAONA-CORNEJO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Submitted October 21, 2025** Portland, Oregon Before: CALLAHAN, CHRISTEN, and HURWITZ, Circuit Judges. Defendant Ruben Gaona-Cornejo appeals a district court order denying his motion to dismiss his indictment for illegal reentry in violation of 8 U.S.C. § 1326. Because the parties are familiar with the facts, we do not recount them here. We * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s order denying the motion to dismiss the indictment based on a collateral challenge to a prior removal order. United States v. Gonzalez-Flores, 804 F.3d 920, 926 (9th Cir. 2015). We affirm. To collaterally challenge an underlying order of removal in a prosecution for illegal reentry, a defendant must demonstrate: (1) he “exhausted any administrative remedies that may have been available to seek relief against the order”; (2) the proceedings giving rise to the order “improperly deprived the alien of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). All three elements of § 1326(d) are mandatory. United States v. Palomar-Santiago, 593 U.S. 321, 326-27 (2021). “Exhaustion of administrative remedies requires an alien to raise and appeal before an agency the claims that the agency could consider to render relief against the challenged order at issue.” United States v. De La Mora-Cobian, 18 F.4th 1141, 1146 (9th Cir. 2021). Here, the Immigration Judge (IJ) expressly informed Gaona-Cornejo that he would have to decide whether to “fight the case” or to concede removal, and Gaona-Cornejo stated that he would “get the deportation” instead of applying for any relief. The IJ also informed Gaona-Cornejo of his right to appeal, which he waived. Because Gaona-Cornejo did not seek any relief before 2 25-3615 the IJ and waived his right to appeal the IJ’s decision, he failed to exhaust his administrative remedies. See id. Gaona-Cornejo contends he satisfied § 1326(d)(1) because his waiver of appellate rights was not knowing and intelligent. He contends he “relied on inaccurate legal advice from a pro bono counsel” who informed him he had a 95% chance of losing any appeal. But even if this contention is accurate, it does not excuse failure to comply with § 1326(d)(1). Section 1326(d)(1) “must be satisfied in every case.” United States v. Valdivias-Soto, 112 F.4th 713, 731 (9th Cir. 2024). In narrow circumstances, an administrative remedy that formally exists may not be “available” within the meaning of § 1326(d)(1). Id. at 730-31 (citing Ross v. Blake, 578 U.S. 632, 643-44 (2016)). For example, in Valdivias-Soto, we held that administrative remedies were unavailable because “the IJ misled the defendant as to the existence or rules of the process for obtaining them.” Id. at 732 (citation modified). But here, Gaona-Cornejo does not identify any misstatements by the IJ “concerning the procedural rules for obtaining administrative remedies.” Id. (emphasis omitted). “[T]he IJ informed [Gaona-Cornejo] . . . of [his] right to appeal and, unlike the IJ in Valdivias-Soto, made no affirmative misrepresentations about that right.” United States v. Nunez, 140 F.4th 1157, 1165 (9th Cir. 2025). “Thus, even if [Gaona-Cornejo’s] waiver were not ‘considered and intelligent,’ that alone would 3 25-3615 not excuse [his] failure to exhaust administrative remedies pursuant to § 1326(d)(1).” Id.1 AFFIRMED. 1 Because we conclude that Gaona-Cornejo failed to satisfy § 1326(d)(1), we need not consider the other elements of § 1326(d). See United States v. Portillo- Gonzalez, 80 F.4th 910, 920 (9th Cir. 2023). 4 25-3615