     Case: 16-20700   Document: 00514940245    Page: 1   Date Filed: 05/02/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                No. 16-20700                       May 2, 2019
                              Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk
UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

v.

HECTOR PARRALES-GUZMAN, also known as Hector Guzman Parrales,
also known as Hector Guzman Perales, also known as Hector Parrales
Guzman, also known as Hector Perales-Guzman, also known as Hector
Parrales,

             Defendant – Appellant.



                Appeal from the United States District Court
                     for the Southern District of Texas


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, ELROD, and HIGGINSON, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      In 2001, an immigration judge (IJ) ordered Hector Parrales-Guzman
removed based on his felony conviction for driving while intoxicated (DWI)
under Texas law. The IJ determined that Parrales-Guzman was removable
because his DWI conviction qualified as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F), which included “crime[s] of violence” as defined in 18 U.S.C.
§ 16. Parrales-Guzman neither requested relief from removal nor appealed the
IJ’s decision to the Board of Immigration Appeals (BIA). In fact, as reflected
    Case: 16-20700     Document: 00514940245     Page: 2    Date Filed: 05/02/2019



                                  No. 16-20700
on the IJ’s removal order, Parrales-Guzman waived his right to appeal the
removal order to the BIA.      Subsequent to his removal, Parrales-Guzman
returned to the United States and was removed twice more in August 2010 and
April 2011. In June 2014, when Parrales-Guzman was found yet again in the
United States, the government obtained an indictment against him for illegal
re-entry after conviction of a felony in violation of 8 U.S.C. § 1326.
      Parrales-Guzman moved to dismiss his indictment claiming that his
2001 removal order was invalid. His main thrust was that the definition of
“crime of violence” in 18 U.S.C. § 16(b) was unconstitutionally vague. The
government opposed the motion to dismiss indictment on two grounds. First,
the government argued that 8 U.S.C. § 1326(d) barred Parrales-Guzman’s
attempt to collaterally attack his 2001 removal order. Second, the government
argued that 18 U.S.C. § 16(b) was not unconstitutionally vague. The district
court held that under then-controlling Fifth Circuit law, the definition of
“crime of violence” in § 16(b) was not unconstitutionally vague and denied
Parrales-Guzman’s motion to dismiss the indictment. See United States v.
Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016), abrogated by Sessions v.
Dimaya, 138 S. Ct. 1204 (2018). However, the district court did not rely on the
government’s § 1326(d) argument. Following a bench trial, the district court
found Parrales-Guzman guilty and sentenced him to time served and two years
of supervised release. Although we affirmed the district court’s denial of the
motion to dismiss the indictment, the Supreme Court of the United States
granted Parrales-Guzman’s petition for writ of certiorari, vacated our
judgment, and remanded for further consideration in light of Dimaya.
      In his supplemental brief, Parrales-Guzman argues that we should
remand to the district court so that it can consider his motion to dismiss the
indictment once again.      The government argues that the district court’s


                                        2
    Case: 16-20700    Document: 00514940245     Page: 3   Date Filed: 05/02/2019



                                 No. 16-20700
judgment should be affirmed because § 1326(d) bars Parrales-Guzman’s
collateral attack on his 2001 removal order. We agree with the government.
      We review de novo a district court’s denial of a motion to dismiss an
indictment, including any underlying constitutional claims. United States v.
Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for
illegal re-entry under 8 U.S.C. § 1326 may collaterally attack the underlying
removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 838–39 (1987).
To prevail, the alien must demonstrate that:
      (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; and

      (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d) (emphasis added). If the alien fails to satisfy any one of
these prongs, then the court need not consider the other prongs. United States
v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
      As a threshold matter, Parrales-Guzman fails at the first prong because
he did not exhaust the administrative remedies that were available to him.
See § 1326(d). An alien exhausts administrative remedies by raising an issue
“either on direct appeal or in a motion to reopen” before the BIA. Omari v.
Holder, 562 F.3d 314, 318 (5th Cir. 2009). “A remedy is available as of right if
(1) the petitioner could have argued the claim before the BIA, and (2) the BIA
has adequate mechanisms to address and remedy such a claim.” Id. at 318–
19. Here, the record clearly shows that Parrales-Guzman did not appeal his
removal order to the BIA; in fact, he waived his appeal. There is similarly no
indication that Parrales-Guzman sought to re-open his case with the IJ or the
BIA or sought any other relief from his 2001 removal order. Given Parrales-

                                       3
     Case: 16-20700       Document: 00514940245         Page: 4    Date Filed: 05/02/2019



                                      No. 16-20700
Guzman’s failure to exhaust administrative remedies that could have
addressed his claims at the time of his removal, § 1326(d) bars his collateral
attack now. Cf. Dimaya, 138 S. Ct. at 1211 (Dimaya pursued his claims before
the BIA and the courts).
       Parrales-Guzman’s sole argument has been that § 1326(d)’s bar on
collateral attacks does not attach because his 2001 removal order was void ab
initio as it rested on an unconstitutionally vague statute, § 16(b). We reject
this argument as it upends Congress’s mandate that collateral review in the
course of re-entry prosecutions be available only in a narrow set of
circumstances. See § 1326(d). Such an argument also enlarges the Supreme
Court’s observation that “[i]t is precisely the unavailability of effective judicial
review of the administrative determination” which warrants a collateral attack
at a later criminal proceeding.           Mendoza-Lopez, 481 U.S. at 841.              Both
administrative remedies and judicial review of the removal order were
available to Parrales-Guzman. He chose not to pursue them.
       AFFIRMED. 1




       1Because Parrales-Guzman’s collateral attack fails at the first prong of § 1326(d), we
do not consider the government’s arguments regarding the two remaining prongs. See
Mendoza-Mata, 322 F.3d at 832.

                                             4
