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UNITED STATES OF AMERICA v. OSCAR CALAN-MONTIEL
Case Number: 20-2082
Judge: Frank Hoover Easterbrook
Court: United States Court of Appeals
For the Seventh Circuit
Chicago, IL - Criminal defense lawyer represented defendant with an alien who reenter the United States, without permission, after a removal order charge.
Oscar Calan-Montiel, a citizen
of Mexico, entered the United States without color of legal
right to be here. He was caught in 2010 and ordered removed.
Federal authorities returned him to Mexico in 2012. He came
back, again evading inspection at the border, and was caught
again in 2019. This time he was prosecuted under 8 U.S.C.
§1326, a statute that applies to aliens who reenter the United
States, without permission, after a removal order. He pleaded
2 No. 20-2082
guilty and was sentenced to about 16 months in prison. The
plea reserved the right to argue on appeal that his first removal was unlawful and that the criminal prosecution should
have been dismissed.
A removal order that serves as the basis of a prosecution
under §1326 is subject to collateral aYack only if the alien
(1) the alien 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 the alien of the opportunity for judicial review;
(3) the entry of the order was fundamentally unfair.
8 U.S.C. §1326(d). Calan-Montiel contends that his removal
order was “fundamentally unfair” because the agency lacked
jurisdiction, and he asks us to overlook his noncompliance
with the first two statutory requirements.
Pereira v. Sessions, 138 S. Ct. 2105 (2018), supplies the basis
of Calan-Montiel’s aYack on the agency’s jurisdiction. Removal proceedings begin with a Notice to Appear, see 8
U.S.C. §1229(a)(1), and the statute sets out information that
the notice must contain. One piece of required information is
the date for the alien’s initial appearance before an immigration judge. For many years employees responsible for initiating removal proceedings regularly omiYed that date, supplying it in a follow-up notice. Pereira and its successor NizChavez v. Garland, 141 S. Ct. 1474 (2021), hold that all of the
required information must be in one document. But what follows from the use of multiple documents? Ortiz-Santiago v.
Barr, 924 F.3d 956 (7th Cir. 2019), holds that §1229(a)(1) is a
claims-processing rule, whose benefits can be waived or
No. 20-2082 3
forfeited if not timely asserted. See also, e.g., Haiyan Chen v.
Barr, 960 F.3d 448 (7th Cir. 2020).
Calan-Montiel wants us to overrule Ortiz-Santiago and
adopt a jurisdictional characterization of the statute. But none
of the courts of appeals treats noncompliance with the onedocument rule as a jurisdictional defect in a removal proceeding, and we are not tempted to create a conflict among the circuits on this issue. Our most recent decision declining what
seems to be a tsunami of requests to overrule Ortiz-Santiago is
Mejia-Padilla v. Garland, No. 20-1720 (7th Cir. June 29, 2021).
This subject has been fully worked over in the Seventh Circuit.
Unless instructed otherwise by the Supreme Court, we shall
continue to treat §1229(a)(1) as a claims-processing requirement.
What’s more, Calan-Montiel could not benefit from a decision to overrule Ortiz-Santiago, for he would still not meet
even one of the three statutory requirements for a collateral
aYack on the removal order. Consider §1326(d)(3), which requires the alien to show that the removal order was “fundamentally unfair.”
There’s nothing unfair, fundamentally or otherwise, about
using two documents to provide information. Litigation often
requires litigants to consult multiple documents to identify issues, hearing dates, and other important maYers. A complaint
commencing a suit in federal court does not notify the defendant about the initial hearing date, but no one thinks that this
makes the litigation fundamentally unfair. Pereira and NizChavez hold that the language of §1229(a)(1) requires the
agency to supply particular information in one document, but
the Justices did not say that a statute allowing a sequential
presentation would be unfair. The most one can say about the
4 No. 20-2082
way the agency initiated the proceedings in 2010 is that a bureaucrat made a mistake—either by omiYing the hearing date
from the initial notice, or by omiYing other information from
a later notice seYing the hearing date. Errors in the implementation of technical statutes are a long distance from “fundamentally unfair” proceedings. United States v. Manriquez-Alvarado, 953 F.3d 511, 514 (7th Cir. 2020), makes this very point
about the interaction of Pereira and §1326(d)(3).
Suppose this, too, were wrong, and that every failure to
comply with §1229(a) makes a removal proceeding fundamentally unfair. Collateral review depends on two additional
requirements. Calan-Montiel acknowledges that he has not
satisfied either one, but he asks us to excuse his noncompliance. Effectively, he wants us to treat §1326(d)(3) as the only
requirement for a collateral aYack on a removal order. But
United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), holds
that an alien must satisfy all three conditions. Federal courts
cannot create equitable exceptions to statutes.
According to Calan-Montiel, the agency never furnished
him with a date for his removal hearing. We know that he did
not aYend and was ordered removed in his absence. That
might be because a notice was not sent, because Calan-Montiel had not kept his address up to date, because a correctly
addressed notice miscarried in the mails, or because CalanMontiel decided that he lacked a defense to removal and so
did not think aYendance worthwhile. We need not determine
which of these possibilities occurred, for Calan-Montiel does
not deny that he had actual knowledge of the removal order.
He could have asked the agency to reopen the proceedings,
see 8 U.S.C. §1229a(b)(5)(C)(ii), but did not. He could have
made that request even after being returned to Mexico. He
No. 20-2082 5
could have sought judicial review before or after his removal.
But he did not do that either. Instead he returned by stealth.
That strategy makes it impossible to satisfy §1326(d), even if
the agency erred in failing to send a proper notice of the hearing’s date. See United States v. Hernandez-Perdomo, 948 F.3d 807
(7th Cir. 2020).